which our printed volumes are based; and (iv) in the variety of their contents and style. 2 3 (i) Origins. The capacity to take notes swiftly and accurately was a very necessary accomplishment for a lawyer from a very early period in the history of the common law. As in the Middle Ages, so in this period, the reports were made primarily, not for publication, but for the reporter's own use. Even Plowden's and Coke's reports, though afterwards published by their authors, were made primarily for their own use. It is not therefore surprising to find that some of these reports contain cases, not reported at first hand by the reporter, but copied from some other source; while others contain cases decided after the author's death. A good many of Dyer's reports, for instance, must have been copied by him from some MS., unless it can be supposed that he began to make his reports at the age of one year. It is clear also from the preface, written by his nephews to their selection from his reports, that they were made for his own private use, and not with any idea of publication.5 But the style in which a man writes for his own use will generally be very different from the style in which he writes for publication. The MS. will not be so carefully corrected, and there will sometimes be a repetition or a hiatus. As Lord Ellesmere said in the Star Chamber, "In Diar are reports as he heard them, and also opinions 1 See Manningham's Diary (C.S.) xvii; the editor, noticing the skill with which Manningham made notes of sermons, says "one is inclined to suspect that the business of note taking may have been at that time one of the branches of legal education;" more probably necessity made it, as at the present day, an accomplishment which every student must acquire by practice. 2" This work I originally entered upon with a view to my own private instruction only, without the least thought or intention of letting it appear in print," Plowden's Rep. Pref. iii. 3"I have since the 22nd year of her Majesty's reign, which is now twenty years compleat, observed the true reasons, as near as I could, of such matters in law as have been adjudged upon great and mature deliberation; and as I never meant to keep them so secret for my own private use as to deny the request of any friend to have either view or copy of any of them: so till of late I never could be persuaded. to commit them to print," I Co. Rep. Pref. ; 7 Co. Rep. Pref. he tells us that he first made the report of Calvin's Case for "his own private use.' 4 Dyer's life was from 1512-1582; the cases in his reports extend from 1513-1582; other instances of reports not made at first hand by the reporter are the books of Latch's and Gouldesborough's reports, while Dalison, Winch, Popham and Owen contain cases decided after their authors' deaths, Wallace op. cit. 18. 5 It appears that his nephews only published them because they were much pressed to do so; and that they only published a selection; but it would appear that Dyer himself contemplated a revision with a view to publication of some of his reports; Vaillant, in the Preface to his edition and translation, cites the following note from the MS.-" Here followe certaine cases of Lord Dier's collection which for some private reasons hee thought fitt not to make them vulgarr;" in fact somewhat the same reasons seem to have prevented publication of all a man's reports immediately after his death as now prevent too speedy a publication of his memoirs; Farewell and Dyer particularly point out that they have published nothing which may tend to the deprivation slander or discredit of any persons, their estates or titles." and doubtes, and thus are strange things printed which detract greatly from the authority of Diar's book."1 What is true of Dyer's reports is also true of the reports of many of his contemporaries, e.g. of Anderson, Popham, Hobart, Benloe, and Dalison. In one or two cases indeed the reports were written or prepared by the author for publication and published by him-the reports of Plowden and Coke are the most famous and the earliest instances-but even in their cases publication was an after thought.2 Later we have the reports of Davis, Bulstrode, Style, Calthorpe, March, Clayton, and the collection of Jenkins, all of which were written in order to be published. Thus the origin of some of these reports is similar to the origin of at any rate some of the Year Books—they were collections of cases made by the author for his own use in his own practice; 3 and, naturally, they have similar imperfections. Moreover, if it be true that others of the Year Books were compiled from notes taken that they might be copied and published, their origin may be compared to those of the reports which were written or revised with a view to publication. 5 (ii) Circumstances of publication. We can see the same general likeness between the Year Books and the reports in the circumstances under which many of them were printed and published. It is probable that in this, as in the medieval period, most lawyers made collections of cases. Sometimes they copied from other collections, and sometimes they reported what they had heard in court. It is clear that the possession of such a collection, made by a distinguished lawyer, would be a great help to a practitioner. Some lawyers freely lent their collections of cases; but others, when they had got hold of such a collection, were unwilling to allow other people to see it. Exclusive access to authoritative information of this kind would be an obvious advantage to them in their practice. But for these same reasons the competition of students, practitioners and publishers to get hold of these collections, known to be circulating amongst the author's friends, was very keen. Nor were the publishers very scrupulous as to the methods they employed. Plowden tells us. 1 Hawarde, Les Reportes etc. 127; cp. Burrow's remarks upon Bunbury's reports 5 Burr at p. 2659. 2 As to Coke see above 364 11. 3; as to 3 Vol. ii 536. Plowden see below 366 n. 1. and cp. Pref. to Leonard's Reports. 5 E.g. Plowden and Coke, above n. 2; 6 Thus the editors of W. Jones's Reports say that the reason why they were not published earlier was because, "the MS being lent to Serjeant Glinne, presently after the author's death, was by him appropriated to his own use; " and the reason assigned in the preface for the late publication of Littleton's reports was the fact that they had come to the hands of his brother, one of the barons of the Exchequer, who kept them for his own private use. that he had resolved to publish his reports, because copies had been hastily and incorrectly copied, and it seemed likely that these copies would be published without his authority. Down to 1640 it is probable that the strict licensing system enforced by the Star Chamber, though it did not prevent the circulation of incorrect reports in MS.,2 prevented the publishers from foisting absolutely spurious reports upon the public. But under the Commonwealth this form of control was less effective. A large number of reports were published between 1640 and 1660, under the names of lawyers of good repute, which contained many obvious errors.3 Their editing and printing was as slovenly as that of many of the printed Year Books. Indeed, in the case of some, there is no evidence at all that the author whose name was attached to the volume had ever written it. In other cases it is clear that the author was not the actual reporter of the cases. Thus Owen's reports contain cases decided after his death; 5 and the editor of Palmer's reports states that 120 of Palmer's cases had been 4 1" Having lent my said book to a very few of my intimate friends, at their special instance and request and but for a short time, their clerks and others knowing thereof got the book into their hands, and made such expedition by writing day and night, that in a short time they had transcribed a great number of the cases which copies at last came to the hands of some of the printers, who intended (as I was informed) to make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words. Wherefore in order to prevent and avoid these defects, I considered with myself whether it was not better for me to put this work in print," Plowden's Rep. Pref. iv; similar reasons are given for the publication of J. Kelyng's and Winch's Reports, see Wallace, op. cit. 13 n. The same thing happened in the case of other books, see the Preface to Theloall's Digest of Writs; Browne's Religio Medici was surreptitiously published in 1682; and at a much later period the circulation of inaccurate notes of a distinguished lawyer's works sometimes induced their author to publish the works themselves, see the Pref. to Preston's Ed. of Sheppard's Touchstone; sce vol. iv 112-113 for the manner in which the publishers plagiarized the various short tracts concerning the justices of the peace and other topics of local government, in circulation at the beginning of the sixteenth century. 2 Coke, in 1 Co. Rep. Pref. says-"I have often observed, that for want of a true and certain report, the case that hath been adjudged, standing upon the racke of manie running reports (especially of such as understood not the state of the question) hath been so diversely drawne out, as many times the true parts of the case have been disordered and disjointed, and most commonly the right reason and rule of the Judges utterly mistaken. Hereout have sprung many absurd and strange opinions, which, being carried about in a common charme, and fathered on grave and reverend Judges, many times with the multitude, and sometimes with the learned, receive such allowance as either beguile or bedazil their conceits and judgments.' 3 See Grimstone's Pref. to 3 Crc." A multitude of flying Reports (whose authors are as uncertain as the times when taken, and the causes and reasons of the judgments as obscure as by whom judged) have of late surreptitiously crept forth. . . . Also to the contempt of our common law itself, and of divers of our former grave and learned justices and professors thereof, whose honoured and reverend names have in some of the said books been abused and invocated to patronize the undigested crudities of those plagiaries:" see to the same effect the Prefaces to Bulstrode's Reports, and Style's Reports. 5 Ibid 18. 4 Wallace, op. cit. 13-18. 3 incorrectly transcribed by Latch. No doubt these volumes often appeared with the sanction of distinguished judges; and their licence was necessary after the Restoration.2 But unless the licence to publish expressly states that the signatories know and attest the worth of the book, it affords but little guarantee of its authority. Publishers sometimes made free with distinguished names. Bulstrode was made to approve the print of Part 12 of Coke's reports, though he had expressly stated that it was full of errors; and he thought it necessary in the preface to his own reports to vindicate his own competence by a statement of the real facts.1 In some cases we know little or nothing about a reporter. Occasionally indeed we get a stray reference which shows us that he is really a human, and even an able person. Thus Siderfin devilled for Francis North, the future Lord Guildford, when he was at the bar; and Roger North has preserved the memory of his rustic behaviour, his hatchet face, his shoulder of mutton hand, and his uncouth walk, together with his good nature, his industry, his ability, and his probity and exact justice to his clients.5 But generally we must judge of the merits of any given reporter merely from internal evidence; and even if the reports purport to be and were really written by some well-known lawyer whose name appears on the title page, it may well be that the reports are not of first-rate authority. In many cases it is clear that publishers never stopped to consider whether the MS. which they were printing was the best that could be got. They printed the first MS. that came to hand; and that MS. was often very corrupt for the same reason that the Year Book MSS. are corrupt. "Most books," says Mr. Wallace," "even when printed after death, are secured from imposition because they subsist in a single copy, written or revised by the authors; and the faults of the printed 2 Vol. vi c. 7. 1 Palmer's Reports Pref. Wallace, op. cit. 34 n. 3-"I have remarked, on comparing numbers of these certificates together, that there is a difference, and apparently an intended difference, between their language; and yet farther, that in an imperfect degree, the strength of the certificate does tally with the commonly received reputation of the book; "thus some reports are merely " allowed," others are "allowed and recommended," others are certified to be "very good," others to be printed from a genuine MS., the certificates of others deliberately abstain from saying anything about authorship. 4 Below 462 n. 5. 5 Lives of the Norths i 93, 94– This Mr. Syderfin was a Somerset gentleman and proved a very good lawyer, as his book two volumes in folio of Reports of his shows. But he was not a better lawyer than a kind and good natured friend: having very good qualities under a rustic behaviour and more uncouth physiognomy. He used at the Temple to be described by his hatchet face and shoulder of mutton hand, and he walked splay, stooping and noddling; " North says that "the only thing which I ever heard him blamed for, was the marrying a lady that was his ward before her minority was expired." 6 Op. cit. II, 12. |