Page 22 - Delaware Lawyer -Spring 2021

FEATURE | PRACTICING LAW IN A NEW NATION
the survey with the realization that the actual practice of the law has changed very little — the meticulous research into cases and court rulings; the im- portance of precedent; the constant pressure to keep up to date with devel- opments; the order and assistance pro- vided by rules and forms. All of these were as important to the practicing lawyer of the 1790s as they are today. And important to all of these tasks has been the work of individuals who pro- vided needed guidance by means of careful reporting of court decisions, comprehensive studies of various areas of the law, and a wealth of handy prac- tice suggestions. It seems, appropriate, therefore, to conclude with a tribute paid to those individuals by one M. Forster who, in the Preface to his 1747 volume of Reports of Crown Cases, had this to say about their service: “Learned men who have em- ployed their time in transmit-
ting to posterity with Accuracy, Precision and true Judgment, an History of Cases of Weight and Difficulty falling within their own experience have been real Benefactors to the public.”
NOTES
1. In his biography of Chief Justice John Marshall, historian Richard Brookhiser char- acterizes the law in post-revolutionary Amer- ica as being in a “fluid state.” Brookhiser, Richard. John Marshall: The Man Who Made the Supreme Court. First ed. New York: Basic Books (2018), p. 27.
2. Friedman, Lawrence M. A History of American Law. Third ed. New York: Touchstone Books, (2005), p. 69.
3. Even when law books came to be printed by American publishers and no longer had to be imported from England, they were often expensive. For instance, inscribed in the single volume of Samuel Comyns’ treatise on contracts, published in Flatbush, NY in 1807, is the purchase price of $12.00, a not inconsider- able amount at the time.
4. It is impossible to know if the books in the collection represent all of the law books available to the county’s early lawyers. However, there is a sufficient number and variety to suggest they formed at least an important core of the resourc- es that lawyers used at the time.
5. The name also distinguishes him from a similarly named worthy of the era, James
Wilson of Pennsylvania, who participated in both the Continental Congress and the Constitutional Convention. James Patriot Wilson: “James Patriot Wilson” (Febru- ary 21, 2013: December 9, 2013; February 21, 2015), This Day in Presbyterian History, Presbyterian Church of American History Center. James Wilson: Alexander, John K. “Wilson, James (1741–1798), lawyer and jurist.” Oxford American National Biography (ANB) February 1, 2000.
6. In 1791, the Delaware legislature autho- rized moving the county seat from coastal Lewes to a central location, with a new town, Georgetown, being created to serve as the county seat.
7. Wilson’s first wife was Sarah Wood of Lewes. After her death, Wilson married Mary Hall, the sister of David Hall, commander of Delaware’s regiment during the Revolution and Governor of Delaware from 1805–1808. The Wilsons had nine children, two of whom survived their father.
8. A detailed account of the murder of Wilson may be found in an article by Betty Grunder, “The Wilson-Wiley Murder”, Journal of the Lewes Historical Society, Vol. 9, Novem- ber 2006, pp. 26–31. See also Roger Allen Martin, “The Wiley-Wilson Murder”, Dela- ware Lawyer, Vol. 1, No 3, Winter/Spring 1983, pp. 39–41.
9. Wilson’s published works include Lectures of Some of the Parables and Historical Passages in the New Testament (1810); An Easy Introduction to the Knowledge of the Hebrew Language (1812); Ridgely’s Body of Divinity, with Notes (1814); a Thanksgiving Sermon on the Perpetuity of the Union of the United States; Common Objections to Christianity, Proposed and Answered in Two Dispassion- ate Conversations; An Essay, on the Probation of Fallen Men, or, the Scheme of Salvation, Founded in Sovereignty, and Demonstrative of Justice (1827); Moral Agency: Or, Natu- ral Ability Consistent with Moral Inability: Being Remarks on an Essay of the Inability of Sinners, by a Presbyterian (1819) and a series of articles on the Primitive Government of Christian Churches. He also compiled a col- lection of hymns. Several of his theological treatises may be found in the University of Delaware Library.
10. Scharf, J. Thomas. History of Delaware; 1609–1888. Philadelphia: L.J. Richards 1888, p. 573. Judge and Historian Henry Conrad wrote of Cooper: “His professional character was marked by a painstaking industry and a thorough knowledge of the law. . . .” Conrad, Henry C. History of the State of Delaware, Wilmington, Del: author, 1908, p. 1027.
11. The house once belonged to Outerbridge Horsey, who was born in the Laurel, DE area, practiced law in Georgetown, and later lived in Wilmington and Washington, DC. Horsey served in the United States Senate from 1810–1821. Scharf, History of Delaware, p. 573. The house, which is much altered, still stands in Georgetown, although no longer on the Circle.
12. Biographical information about John W. Houston appears in Scharf’s History of Dela- ware, pp. 541–543 and in “Houston, John
Wallace (1814–1896),” Biographical Direc- tory of the American Congress 1774–present. Accessed April 8, 2021. https://bioguide. congress.gov/search/bio/HOO825
13. Most of the books are bound in calfskin, with the title and name of the author or com- piler appearing, often in gold print on bur- gundy, on the binding.
14. “Houston, Robert Griffith (1867– 1946),” Biographical Directory of the United States Congress, 1774–present. Accessed April 8, 2021. https://bioguide.congress.gov/ search/bio/HOO826; Who’s Who In Amer- ica Vol. 16, Chicago, A.N. Marquis Co. 1930 – 31, p. 1139.
15. Scharf, History of Delaware, pp. 133, 135, 1212. There were two individuals of that name, a father and son, who both served as a Justice of the Peace. Seller, Edwin Jacquet, Genealogy of the Kollock Family of Sussex County, Delaware, 1647–1897. Philadel- phia, 1897. Accessed April 8, 2021. https:// archive.org/stream/genealogykolloc00sell- goog/genealogykolloc00sellgoog
16. For biographical information on Coke, see Boyer, Allen D. “Coke, Sir Edward (1552–1634), lawyer, legal writer, and politi- cian.“ Oxford Dictionary of National Biogra- phy (DNB), 23 Sep. 2004. Biographical in- formation on Croke may be found in Brooks, Christopher W., “Croke, Sir George (c. 1560– 1642), judge and law reporter.” DNB. 23 Sep. 2004.
17. Croke’s reports were revised and repub- lished throughout succeeding centuries. The copy in the Sussex collection is the fifth edition of 1791. In the introduction, the user is assured of the accuracy of the transla- tion from the French. Dictionary of National Biography.
18. Rigg, James McMullen, “Williams, William Peere (1664–1736)”, Dictionary of National Biography, 1885–1900, Vol 61. See also, Yale, D.C.E. “Williams, William Peere (1664/5–1736), law reporter.” DNB. 23 Sep. 2004. The Sussex library contains a 1790 edi- tion of Williams’ reports, printed in Dublin.
19. Courtney, W.P., and David Ibbetson. “Burrow, Sir James (1701–1782), law report- er.” DNB. 23 Sep. 2004.
20. Ibid. The information about Strange’s purported epitaph may be found at https:// en.wikipedia.org/wiki/John_Strange_(Eng- lish_politician). For biographical information about Strange, see Hanham. A.A. “Strange, Sir John (bap. 1696, d. 1754), judge.” DNB. 23 Sep. 2004.
21. Pollock, C.E., quoted in Edmund Sid- ney Pollock Haynes. A Lawyer’s Notebook. Second impression. Martin Secker: London, 1932, p. 43. For biographical information on Espinasse, see Lobban, Michael. “Espinasse, Isaac (1758–1834), law reporter and legal writer.” DNB. 23 Sep. 2004.
22. Marvin, J.G. and T. & J.W. Johnson (Firm). Legal Bibliography, or a Thesaurus of American, English, Irish and Scotch law books: Together with Some Continental Trea- tises. Interspersed with Critical Observations Upon Their Various Editions and Authority; to Which is Prefixed a Copious List of Abbre- viations. Heinonline.org. Philadelphia: T &
20 DELAWARE LAWYER SPRING 2021