CHAPTER VI.

A COLONIAL LAWYER'S EDUCATION IN THE 18TH CENTURY.

Acquisition of the law is difficult without ready means of access to the books of the law and these were sadly lacking in the American Provinces.

Of the reports published in England by the time of the American Revolution (not over one hundred and fifty in number) hardly more than thirty were in familiar use on this side of the Atlantic; and the number of text books accessible was even smaller. Practically all the law books used in the Colonies were imported from England.

Although printing had begun in the Colonies as early as 1638-9, when Stephen Daye printed, at Cambridge, The Oath of a Freeman, the vast proportion of all books printed, from that date down to the American Revolution, was of a religious or historical nature. A careful examination of elaborate American Bibliographies discloses only thirty-three law books printed in America prior to 1776, including in this number at least eight repeated editions of the same book. (1)

Most of these books were manuals for use of Justices of the Peace, Sheriffs and other petty officers, and treatises on the general rights of Englishmen, and especially of Juries.

The first seven law books printed fairly illustrate the whole list.

1680 Reasons for Indictment of the Duke of York, Presented to the Grand Jury of Middlesex Saturday June 26, 1680 (Boston).

1693-The Englishman's Right, A Dialogue between a Barrister at Law and a Juryman, plainly setting forth the antiquity, the excellent designed use and office and just privileges of juries by the laws of England, by Sir John Hawles (Boston).

1705-Lex Mercatoria Or the Just Rules of Commerce Declared. And Offences against the Rules of Justice in the Dealings of men with one another selected, by Cotton Mather (Boston).

(1) See the monumental work of Charles Evans, American Bibliography, Volumes I, II, III, (1893) and Isaiah Thomas History of Printing in America, published in Vol. VI of American Antiquarian Society Proceedings (1874).

1710-The Constable's Pocket Book: Or a Dialogue between an old Constable and a new, being a guide in their keeping the peace, by Nicholas Boone (Boston).

1716-Lex Parliamentaria or a Treatise on the Law and Custom of the Parliaments of England, by George Petyt (London, printed and reprinted in N. Y. and sold by William and Andrew Bradford in N. Y. and Phila.).

1720-The Security of Englishmen's Lives or the Trust, Power, and Duty of the Grand Jurys of England, by John Somers.

1721-English liberties or the Freeborn Subjects' Inheritance, containing Magna Charta, Charta de Foresta, the Statute De Tallagio non Concedendo, the Habeas Corpus Act and several other statutes with comments on each of them.

Likewise the Proceedings in Appeals of Murder; of Ship Money; of Tonnage and Poundage; of Parliaments and the qualification and choice of members; of the three estates and of the settlement of the Crown by Parliament. Together with a short history of the succession not by any hereditary right; Also a declaration of the liberties of the subject; and of the oath of allegiance and supremacy. The Petition of Right with a short but impartial relation of the difference between King Charles I and the Long Parliament concerning the Prerogative of the King, the Liberties of the Subject and the rise of the Civil Wars. Of trials by Jury and of the qualifications of Jurors; their punishment for misbehaviour and of challenges to them. Lastly of Justices of the Peace, Coroners, Constables, Churchwardens, Overseers of the Poor, Surveyors of the Highway, etc. with many law cases throughout the whole and Compiled first by Henry Care and continued with large additions by W. N. of the Middle Temple Esq. The fifth edition.

There was no law book written by an American until 1736, when George Webb of Virginia published:

The Office and Authority of a Justice of the Peace. And also the duty of Sheriffs, Constables, Coroners, Church Wardens, Surveyors of Highways, Constables & Officers of Militia. Together with precedents of warrants, judgments, executions and other legal process, issuable by magistrates within their respective jurisdictions, civil or criminal, and the method of judicial proceedings before justices of peace in matters within their cognisance out of sessions, collected from the common and statute laws of England and acts of assembly now in force; and adapted to the Constitution and practice of Virginia. By George Webb Gent. one of his Majesty's Justices of Peace of the County of New Kent (Williamsburg, Va., printed by William Parks 1736).

There were also printed about thirty-five or forty books or pamphlets giving reports of famous cases, of which all but

five or six were of criminal trials, murder, burglary and piracy. The first of these was the trial of Thomas Southerland for murder in West Jersey, printed in 1692; the next, the trial of Col. Nicholas Bayard in New York for high treason, published in 1702. A report of a case in Chancery in New York was printed in 1727. In 1736, John Zenger printed a report of his famous trial for libel in New York in 1735. Two years later, another report of this trial was printed in Philadelphia, with comments by English barristers of the Barbadoes.

In 1753, a report of the case of William Fletcher v. William Vassall for defamation, tried in the Massachusetts Superior Court and pending on appeal to the King in Council, was printed. A report of the trial of Admiral Byng by Court martial in England was printed in 1757. A full account was printed in 1763 of the famous proceedings against John Wilkes in England, to which was appended "An Abstract of that Precious Jewel of an Englishman, the Habeas Corpus Act, also the North Briton No. 45 being the paper for which Mr. Wilkes was sent to the Tower-Addressed to All Lovers of Liberty."

In 1770, a full report of the trial of the British soldiers in Boston for murder was published.

In 1774, was printed Arguments against Slavery in the case of James Somerset, a negro, lately determined in the Court of King's Bench; wherein is attempted to demonstrate the unlaw fulness of Domestic Slavery in England, by Francis Hargrave.

No reprint was made in America, prior to 1776, of Coke, or of any standard English law writer, except Blackstone. There was no reprint of any English Law Reports.

It is not surprising therefore that scant references are found to English cases, or law reports in the Colonial Court records; or that as a rule, the early cases contained citations of only the most elementary books, writers and principles. (1)

(1) Thus Wood's Institutes and Hale's Analysis of the Law seem to have been favorite citations of Chief Justice Sewall in the early part of the 18th Century in Massachusetts. As early as 1730, in a printed argument in the Superior Court in Massachusetts, citations are found of 1 Coke, 2 Coke Rep., 1 Modern, Hobart and Chancery Cases.

In the Zenger libel case in New York in 1735 counsel quoted freely from Coke's Inst. 5 Coke Rep. Vaughn's Reports, Hawkins Pleas of the Crown, decisions of Lord Holt.

Some of the lawyers who came over from England brought_with_them their acquired knowledge of English cases. Thus in South Carolina in a trial of pirates in 1718 the Chief Justice Trott (an English barrister) quotes Spelman, Godolphin, Coke's First Institute, Selden's Notes on Fortescue, Laws of Oleron, Digests and Pandects of Justinian.

The early Colonial lawyers were hampered not only by this scant supply of law books and reports, but their difficulties in studying and determining the statutory law of the Colonies were even more serious. While Massachusetts and Connecticut printed their statutes reasonably early, the other colonies were late in doing so; thus the first collection of Colonial Laws of New York was published in 1710; the Acts and Laws of Rhode Island were first printed in 1730; those of New Jersey in 1732; those of Virginia in 1733; South Carolina in 1736; the first collection of Charters and other Public Acts relating to Pennsylvania in 1740 and all its laws in 1742; the laws, statutes, ordinances, and Constitution of the City of New York in 1749; Bacon's Compilation of Laws, in Maryland in 1765.

So few copies were printed however that it was unusual for any lawyer to possess a full set of the local laws of his colony. "Even partial editions of Colonial laws (at least in Virginia) were extremely difficult to be obtained. Few gentlemen, even of the profession in this country, have ever been able to boast of possessing a complete collection of its laws," said St. George Tucker in 1803 in the preface to his edition of Blackstone.

The few law books and reports that existed in America were to be found almost entirely in the libraries of the richer lawyers, (1) and sometimes among the books of the local clergymen. "Fifty or one hundred volumes were considered a very considerable collection of books for a lawyer's library." (2) The following examples give some idea of the prevalent conditions. Even the largest library in the Colonies in the middle of the 18th Century, that of William Byrd the younger, in Virginia, contained only 350 volumes of law and statutes out of a total of 3625(3). And in the library of the wealthy Ralph Wormeley of Rosequill, Virginia, who died in 1701, a graduate of Oriel College, Oxford, and a trustee of William and Mary College, the only legal works were Coke's Reports, and Coke's Institutes, a collection of Virginia and of Massachusetts laws, a treatise on Maritime Law, and The office of the Justice of the Peace.

Judge Edmund Trowbridge of Massachusetts possessed what Theophilus Parsons called "not only the best but probably the

(1) George Bliss in his address to the Bar of Hampshire County Sept. 26, 1826, says John Worthington, Joseph Hawley and Jonathan Bliss had the only law libraries in all Western Massachusetts.

(2) Biographical Sketches of Eminent Lawyers, by S. L. Knapp, (1821). (3) Old Virginia, by John Fiske.

only thoroughly good one (law library) then in New England and even in America". It contained all the valuable books on English law then in existence. (1) John Adams complained of impoverishing himself in order to provide himself with an adequate law library.

President Stiles of Yale writes, in 1790, of Governor Griswold, who was Chief Justice in 1769, that "he bought him the first considerable law library in Connecticut, took Att. oath an began practice in 1743-a great reader of law. Has a fine library of well chosen books-about 550 volumes, now left in his study, besides a part of his library given to his son in Norwich-about 200 Law Books, the rest history and divinity”.(2)

The Philogrammatican Society of Connecticut, of which Jonathan Trumbull was Secretary, purchased for its library in 1738, ninety-four works of which the following were the only law books-Coke's Institute's, Lilly's Abridgment, Coke's Reports, Bohun's Declarations and Pleadings, Jacob's Introduction to Common Civil and Canon law. (3)

In the famous library of Rev. Thomas Prince of Boston, who died in 1758, out of about 1500 volumes, there were but five on the Common Law-Britton (1640), English Liberties with Magna Charta etc. (1721), Cowell's Institutes of English Law (1664), The Exact Constable, Church Warden, etc. (1682), Spelman's Archaeologus (1626). There was also a copy of the General Laws and Liberties (1672), Bacon's Novum Organum, Grotius on War and Peace (1680) and five books on civil and canon law. (4) The inventory of the library of Patrick Henry in 1799 disclosed only 63 volumes of law books.

In the Colonies outside of Massachusetts, Virginia, and Connecticut, there were few law libraries of any size; although, towards the time of the Revolution, the Pennsylvania lawyers who pursued their studies in the Inns of Courts in England accumulated considerable numbers of English books.

(1) For interesting account of Judge Trowbridge and his libraries see Memoirs of Theophilus Parsons, by T. Parsons Jr.

(2) See MSS. Itinerary of a Journey from New London to New Haven in 1790.

(3) Journal of American History, Vol. I., No. 1-It is interesting to note that there were 13 books on medicine, a half dozen or so on history, Milton's Paradise Lost, a few volumes of the Spectator, and all the rest of the library consisted of religious works.

(4) See Catalogue of Library of Rev. Thomas Prince (1846).