Ka Leo O H.A.L.A., 20:4, Winter 1997-1998
LEGAL FORM BOOKS: THEN AND NOW
Laura Warfield
Meditation on Forms
Forms. Where would we be without them? Sure, it’s possible to draft something from scratch, and we all do sometimes--when we can’t find a form. But most of the drafting we paralegals do is based on forms: it’s so much easier to jump-start from something -- anything -- than from a blank page. Sometimes the finished product has been so changed as to make the original form unrecognizable, but that doesn’t mean the form wasn’t useful: after all, even if the phrasing is not what we would like, a form can still be used as a kind of checklist of points to be covered.
I recently took an informal e-mail poll of about a dozen paralegals (half of whom responded, which is pretty good for a HALA survey), asking for favorite sources of legal forms. We all get our forms in pretty much the same ways, with HICLE manuals, firm form files and personal form files topping the list. We all seem to have our own set of forms, in hard copy or on diskette, lovingly collected over the course of our years as paralegals. We save the handouts from the CLE sessions we attend. And, naturally, we also rely on court-issued or agency-issued forms, where appropriate.
When these strategies don’t work, we may look to a commercial set of legal forms, such as Lawyers Cooperative Publishing’s 52 volumes of Am Jur Legal Forms 2d, or the 35-volume Federal Procedural Forms, Lawyers Edition by the same publisher -- not to mention the many commercial form books aimed at non-lawyers, such as those published by Nolo Press. Some new-tech strategies include ready-to-word-process form sets on CD-ROM (such as Clark Boardman Callaghan’s Nichols Electronic Legal Forms), Westlaw versions of some of the standard commercial form book sets (like Am Jur Legal Forms 2d), and world wide web searches.
And, of course, we all make use of the paralegal grapevine, asking paralegals, attorneys or secretaries in our own firms (one of the paralegals polled said she asks "the form dude" when she needs a form), calling the people we know around town, or putting out a request on the appropriate NFPA listserve.
Two Old Legal Form Books
These musings of mine on the subject of legal forms were precipitated by a couple of old legal form books, dating from the eighteenth and nineteenth centuries, which have crossed my path. One, entitled The Pocket Lawyer and Family Conveyancer, was published by Charles Bell in Philadelphia, Pennsylvania in 1841, over 150 years ago. The other, The Young Clerk’s Vade Mecum: Or, Compleat English Law-Tutor (Third Edition), was published in London, England, in 1738, more than 250 years ago. ("Vade mecum" is Latin for "go with me.")
Neither of these two legal form books clearly credits its author. The Pocket Lawyer was "compiled by a Gentleman of the Bar," according to its title-page, but the identity of the gentleman in question is not disclosed. The Vade Mecum, even less helpfully, says it was "Printed by E. and R. NUTT, and R.GOSLING (Assigns of Edw. Sayer, Esq.) for W. INNYS and R. MANBY at the West-End of St. Paul's Church yard, and T. LONGMAN in Pater-noster-Row," which might mean that some of these persons were the authors--or it might mean that they were the financial backers of the enterprise, or the destined booksellers, or even something else altogether.
Unlike today’s multi-volume compendiums, these two legal form books are compact -- portable, to "go with me" -- a little smaller than a modern paperback bestseller. The 1841 Pocket Lawyer is just 142 pages; the earlier, somewhat more comprehensive Vade Mecum runs about 200 pages. The forms in both books are generally shorter than today’s legal documents: most forms in the Pocket Lawyer are from one-half to two pages, and in the 1738 Vade Mecum the longest form runs six pages.
Both books include writing samples, but not the kind of writing samples one would include with a resume and cover letter--these are samples of handwriting, of proper legal penmanship. The Pocket Lawyer advertises itself as being "embellished with upwards of twenty pages of script, serving as a model for good writing," and the Vade Mecum has a large fold-out page with samples of various styles of handwritten script. Both of these books, of course, were published before--in the case of the Vade Mecum, long before--the advent of the manual typewriter, first commercially manufactured in 1874 (according to Darryl Rehr, "The Typewriter," August 1996, Popular Mechanics / PM Zone online, www.popularmechanics.com). Once you start to think about it, our occasional struggles with WordPerfect really are better than some--if not all--of the alternatives.
The Pocket Lawyer and Family Conveyancer
The nineteenth-century, American Pocket Lawyer consists mainly of forms, with very little in the way of explanatory notes, and includes several appendices: an abridged law dictionary; a "Fee Bill containing a list of Fees allowed in all the various Courts of Justice in Pennsylvania, as fixed by the last Act of Assembly"; and a table of interest calculations (at 6%). The dictionary includes mostly Latin terms, some of which are still in use today, but also offers some interesting definitions of less arcane terminology, such as:
Burglary.--Is where a man breaketh and entereth the house of another in the night time, to the intent to commit some felony, whether the intention be executed or not.
Guardian.--Signifies him that hath the charge or custody of any person or thing; but most commonly he who hath the custody of any persons as are not of sufficient discretion to guide themselves and their own affairs, as children and idiots.
Lunatic.--Is a person who is sometimes of good and sound memory and understanding, and sometimes not; and so long as he has not understanding, he is non compos mentis.
The Pocket Lawyer contains a variety of common forms: agreements (for building a house, or with a clerk or workman), bills of exchange and sale, deeds, leases (of a house, of a farm), notes, releases, and wills, inter alia (see sidebar for examples). It includes a form for the marriage ceremony ("We are gathered here in the sight of God and in the face of this company, to join together this man and this woman in holy matrimony . . .") and one for the marriage certificate, presumably for the use of justices of the peace, or the equivalent. A striking feature, to me at least, is the number and kind of petitions: petition for license to tavern-keepers, for laying out a road, for review of a road, for vacating a road, and for valuing lands. These petitions are all addressed to judges: "To the Honourable the Judges of the Court of Common Pleas of Juniata County, now composing a Court of Quarter Sessions of the Peace, in and for said County," for example. It would appear that a nineteenth-century American judge functioned as all kinds of today’s government agencies.
The Pocket Lawyer was specifically meant for the use of lay persons as well as attorneys: it is comprised, the title-page tells us, of a "selection of Forms necessary in all mercantile and money Transactions including every direction essential to the magistrate and private individual; laid down in so plain a manner, as to enable every person to transact his own concerns, without the assistance of a lawyer." Interestingly enough, the name "Pocket Lawyer" is still in use: the internet bookstore Amazon.com (www.amazon.com) lists Marilyn D. Sullivan, The Pocket Lawyer: Solve Your Own Legal Disputes (Venture 2000 Pub, 1997), which bills itself as "a complete guide to resolving legal disputes outside of complicated court systems and with limited attorney involvement through mediation and arbitration" -- not quite the same thing as our Pocket Lawyer, but related.
The Young Clerk’s Vade Mecum: Or, Compleat English Law-Tutor
The eighteenth-century, English Vade Mecum is generally more comprehensive than the later American Pocket Lawyer. Along with a greater number and variety of forms, the Vade Mecum offers additional information about procedure and practice, or, as the title-page advertises:
With legal Observations on all Deeds and Writings on Distresses for Rent, Inrolment of Deeds, Livery of Seisin, &c. and how they are made.
Also curious Instructions for the suing out of Fines, Praecipe's and Concords, and Indentures declaring their Uses, shewing their various Operations and Effects in the Law.
And particular Directions, how to pass Recoveries through the several offices, with Writs of Entry, Summons and Seisin; and a Recovery entered on the Rolls, &c.
The Vade Mecum is organized into twenty-two topical sections, such as "Of Letters of Attorney and Other Authorities &c."; "Of Indentures, Defeazances, Licences"; "Of Leases, Distresses for Rent, &c."; "Of Conveyances, Foeffments, Wills"; or "Of Recoveries, with Directions for suing them out." Each of these sections includes introductory remarks and a variety of relevant forms (see sidebar for some examples).
The earlier Vade Mecum is much less accessible to the modern reader than the Pocket Lawyer: it is full of unfamiliar terms--almost always capitalized--like "Livery and Seisin," "Messauge," "Praecipe’s," etc. (or should I say, "&c."). The forms themselves are very densely written, and the practices discussed are sometimes remarkably different from modern practice (although in other cases they are quite similar to what we still do today). In general, the introductory remarks provide a good explanation -- as they were no doubt designed to do -- even for us today.
Although it may seem antiquated to us, the Vade Mecum characterizes itself, in its preface, as an improvement on earlier form books, and criticizes one competitor in particular as not up-to-date:
The subject of Clerkship, may be resembled to a large common Field, wherein many are the Ways that lead through the same; and if it has been my good Fortune to find out a Way that is New, or more easy than the former, I hope to be excus’d for my present Labours.
This only is what I have endeavor’d at in the following Work: And notwithstanding the Books of this Kind, already publish’d, have found their Success; It has been chiefly owing to the Want of others to Supply their Defects, and improve upon what they have but Slightly attempted: For it must certainly be allow’d, on a general View of them, that there are very few Precedents in any of those Books, particularly The Young Clerk’s Tutor enlarg’d, agreeable to the Methods of Practice now in Use.
If this be Truth, as it is highly Evident, I may reasonably expect that my Small Performance will meet with the Notice and Encouragement of the Publick; especially when I assure them, that there is no one Precedent inserted in this Book, which has the greatest Variety, but such as is useful, and perfectly applicable, by Persons of all Capacities, to the Business it has Relation to.
I have nothing to say farther relating to this Performance, but to assure my Readers that I have every where made an Improvement in Clerkship, to the utmost Extent of a Design of this Nature, and I hope upon the whole, a Tutor Compleat.
The Vade Mecum also makes a selling point of being written in English: "All done now in English, in a Method entirely New," it says on the title-page, and ". . . in English, according to the present practice," it says in the Preface. In what language other than English would a legal form book in use in eighteenth-century England be written? Well, the competitor mentioned above, the Young Clerk’s Tutor enlarg’d, first published in the early 1660s and reprinted many times, into the 1700s (according to the online catalog of the Libraries of Columbia University, telnet columbianet.cc.columbia.edu), was written in English and Latin. At least we no longer have to use Latin--or, at least, not much Latin!
Further Musings
Given how deeply the legal profession is entrenched is tradition -- or call it precedent -- and how rare it is (and properly so, of course) for an attorney to take a chance on doing something a new way, which might or might not work, it’s probably safe to assume that legal forms have existed as long as the law itself. In fact, with a quick browse through the Library of Congress online catalog (www.loc.gov), I came up with a legal form book, on the law of the Roman Curia or Papal States, first published in Rome in 1479 (and reprinted in Milan in 1514 and in Paris in 1520). And I would venture to guess that legal form books in manuscript go further back even than that.
The Vade Mecum and the Pocket Lawyer, these two fragile, musty old books, tell us something about our history: about the history of the law, and about the history of paralegals (or of our predecessors) -- after all, it is the Young Clerk’s Vade Mecum, not the Young Attorney’s Vade Mecum. And perhaps these two books even tell us something about our history as private citizens: the Pocket Lawyer, at least, was intended "to enable every person to transact his own concerns." I hope you, Dear Reader, have enjoyed getting acquainted with these two legal form books as much as I have.
This article is dedicated to my deceased father-in-law, Joseph L. Andrews, a librarian at the law library of the Association of the Bar of the City of New York and an inveterate collector of old books, from whom I inherited the two legal form books featured in this article.
SIDEBAR 1:
From THE YOUNG CLERK’S VADE MECUM: Or, Compleat English Law-Tutor. London, 1738 (Third Edition).
Livery of Seisin, how made. [p. 64]
The parties to the Deed, Grantors, &c. or others by them authorized, come to the Door of the House, or to some Part of the Land, and there having declared the Cause of their Meeting in the Presence of Witnesses, they read the Deed, or the Contents thereof, and the Power of Attorney: And then, if it be a House, they take the Ring, Latch or Key of the Door (all the People being out of the House) or if it be a Piece of Ground, they take a Clod of Earth, or a Twig of a Tree, &c. and the same Key, Clod, &c. with the Deed, they deliver to the Grantee, or his Attorney, saying the usual Words; viz. "I A.B. do hereby deliver unto you C.D. &c. Possession and Seisin of this Messauge or Tenement, &c. To hold to you, your Heirs and Assigns, according to the True Intent and Meaning of this Indenture of Lease &c. And afterwards, if it be a House, the Grantee &c. enters first alone, and shuts to the Door, and then he opens it and lets in others.
* * *
Of Awards. [p. 69]
An Award is the Determination of Controversies between two Persons who are at Variance,
made by Arbitrators indifferently chosen: And an Umpirage is where there is but one
Arbitrator, and is generally where the Matter being referred to two, they cannot agree;
whereupon a third Person is appointed to give in his award.
All awards must appoint either Party to give or do something
Beneficial; for it must not be on one Side only: The Performance of what is ordered by the
Award, must be lawful and possible; and there must be Means to recover it by Law: And the
Award ought finally to determine all Controversies. Co. Lit. 206. I Rol. Abr.
252.
An Award may be by Word or Writing; but is usually in Writing.
A Submission to an Arbitration to make it a Rule of Court. [p.72]
Be it Remembered, That A.B. and C.D. of, &c.being desirous to end and determine divers Controversies, Suits and Quarrels that have lately arisen between them, did, on &c. agree to submit and refer all the said Controversies, Suits and Quarrels to the Award of E.F. and G.H. of, &c. to be made in Writing under their Hands and Seals, &c. And the said Parties did mutually promise and oblige themselves, that they would perform and execute such Award as the said Arbitrators should make in the Premisses. Now the said parties do further agree, that the said Submission shall be made a Rule in his Majesty’s Court of Common Pleas at Westminster, and that they will be finally concluded by the Arbitration that shall be made in the Premisses by the said Arbitrators pursuant to such Submission.
Witness, &c.
* * *
A Writ of Summons for the First Vouchee. [p. 179]
George the Second, &c. To the Sheriff of S. Greeting. Summons by good Summoners G.H. that he be before our Justices at Westminster, on the Octave of St. Martin, to warrant to A.B. one Messuage and ten Acres of Land, &c. which C.D. in our Court, before our Justices at Westminster, claims as his Right against the said A.B. by our Writ of Entry on a Disseisin in le post: And whereupon the said A.B. in our same Court, hath vouched the said G.H. to be summoned in your County, to warrant against the said C.D. And have you there the Summoners and this Writ. Witness John Wills, Knt. at Westminster, the Day, &c. in the Eleventh Year of our Reign.
As far as I know, the practice of having a ceremony such as Livery of Seisin has gone out of fashion completely -- unlike the practice of alternative dipute resolution, which seems to become more and more fashionable every day. (Who would have thought that arbitration went so far back?) The Submission to an Arbitration to make it a Rule of Court above seems awfully like today’s Motion for Confirmation of Arbitration Award, doesn’t it? And the Writ of Summons for the First Vouchee seems much like today’s Writ of Summary Possession -- a form there will probably always be a use for, unfortunately.
SIDEBAR 2:
From Bell’s Edition. THE POCKET LAWYER, AND FAMILY CONVEYANCER. Improved and Enlarged. Philadelphia: Charles Bell, Market Street. 1841.
LETTER OF ATTORNEY [p. 29]
Know all Men by these Presents, That I, James Bennett, of Wayne township, Mifflin county, and state of Pennsylvania, Merchant, have made, constituted, and appointed, and by these presents do make, constitute and appoint, and in my place and stead, put and depute John Thompson, of Alsace township, Berks couty, and state aforesaid, Farmer, my true and lawful attorney, for me and in my name, and for my use, to ask, demand, sue for, recover and receive, all such sum and sums of money, debts, goods, wares, dues, accounts, and other demands whatsoever, which are, or may be due, owing, payable, and belonging to me, or detained from me, by any manner of ways or means whatsoever, or in whose hands soever the same may be found; and also to pay and discharge all sums of money, due and owing by me, to any person or persons whatsoever, giving and granting unto my said attorney, by these presents, my full and whole power, strength, and authority, in and about the premises, to have, use, and take all lawful ways and means in my name, and for the purpose aforesaid, and upon the receipt of any such debts, dues, or sums of money, acquittances, or other sufficient discharges for me, and in my name, to make, seal and deliver. And generally, all and every act or acts, thing or things, device or devices in the law, whatsoever needful and necessary to be done in and about the premises, for me and in my name to do, execute, and perform, as fully, largely, and amply, to all intents and puroses, as I myself might or could do, if personally present, and attorneys one or more under him, for the purpose aforesaid, to make and constitute, and again to revoke at pleasure. -- Hereby ratifying, allowing, and holding for firm and effectual, all and whatsoever my said attorney shall lawfully do, in and about the premises aforesaid, by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the twentieth day of July, in the year of our Lord, one thousand eight hundred and thirty-four.
JAMES BENNETT, [L.S.]
Sealed and delivered in the presence of
Mifflin county, ss.
On the twentieth day of July, in the year of our Lord, one thousand eight hundred and thirty-four, personally appeared before me the subscriber, one of the Justices of the Peace in and for the said county, the above named James Bennett, and acknowledged the foregoing Letter of Attorney to be his act and deed. Witness my hand and seal, on the day and year above written.
WILLIAM TEMPLE, J.P.
* * *
PROXY TO VOTE FOR DIRECTORS OF A BANK [p. 52]
Know all Men by these Presents, That I, John Good, of Lancaster County, have constitued and appointed, and do hereby constitute and appoint David Jobson, of Pottsville to be my true and lawful substitute and proxy, for me and in my name to vote at any election for directors of the Miner’s Bank of Pottsville, or any other question that may be put, at a stated or special meeting of the stockholders of the said Bank, as fully as I might or could do, if personally present. Witness my hand, this third day of April, A.D. one thousand eight hundred and thirty-four.
JOHN GOOD.
* * *
ASSIGNMENT OF A LEASE [p. 18]
Know all Men by these Presents, That I, Robert Green, the lessee within named, for and in consideration of one hundred and fifty dollars, to me in hand paid by Joseph Davis, at or before the ensealing and delivery hereof, the receipt whereof I do hereby acknowledge, have granted, assigned, and set over, and by these presents do grant, assign, and set over, to Joseph Davis, his heirs and assigns, the within Indenture of lease, together with all and singular the premises hereby demised, with the appurtenances; to have and to hold the same unto the said Joseph Davis, his heirs and assigns, for the residue of the term within mentioned, under the yearly rents and covenants within reserved, and contained on my part to be done, kept, and performed. Witness my hand and seal, the ninth day of August, one thousand eight hundred and thirty-four. ROBERT GREEN. [L.S.]
Sealed and delivered in the presence of
Many of the forms in the Pocket Lawyer, as you can see, are reminiscent of the forms we still use today: the Proxy and Assignment of Lease here are not very different from some of their counterparts in Am Jur Legal Forms 2d. Some of these forms, hovever, are horrifyingly convoluted -- making today’s legalese look straightforward -- such as the above Letter of Attorney, which seems to cry out for simplification.
_________________
Laura Warfield is a paralegal at Chun, Kerr, Dodd, Beaman & Wong. She has been a litigation paralegal for over 15 years, first in New York City and then in Honolulu. Laura has been a Hawaii Paralegal Association member since 1989, and a member of the HPA Newsletter Committee since 1995; she was HPA's Newsletter Director in 1996. Laura has written numerous articles on various topics for the Hawaii Paralegal Reporter and its predecessor, Ka Leo O H.A.L.A.