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early reporters. It is emphasized by Plowden;1 and Coke,2 and other reporters sometimes copy the pleadings from the record. Thus it will be seen that there was no common consent as to the style which a law report should take. As with the Year Books, so with these early reports, we get all sorts of style and all sorts of arrangement.3 Sometimes, as in the first volume of Brownlow and Gouldesborough, we get a collection of cases turning upon a particular topic-in this case the different forms of action. Sometimes, as in some of the cases reported in Bendloe, we get only short notes of decisions. Sometimes, as in Croke, we get a summary of the arguments and the decision stated at moderate length. In Plowden we get elaborate reports of the record, arguments, and decision, together with comments of the reporter himself. Very often, as we shall see, Coke gives us rather a critical exposition of a legal topic rather than a report. *

It is thus obvious that the contents and style of these early reports have much in common with the contents and style of the Year Books. There is no sudden transition. But, if we look at these reports as a whole, we can see that differences are emerging, which will, in time, give rise to a form of law report quite different from that of the Year Book. At the present day a reporter aims at giving a faithful account of the point or points at issue in the case, the decision on these points, the reasons for the decision, and such a summary of the arguments as will make the points at issue and the decision upon them intelligible. In the sixteenth and early seventeenth centuries we can see in operation some of the causes which will lead to the growth of the modern style of reporting.

In the first place, the change from the system of oral to the system of written pleadings enabled the point at issue to be defined more clearly, and concentrated attention more firmly upon the decision of that point. The interest tended to shift from

1 "This book consists of two several kinds of work, the one is, a book of Entries, more sure and safe to be relied upon and followed than any other book of Entries. For... in this book there is no record entered but such upon which there was either a demurrer in law, or a special verdict given containing a point of law, in both which cases the matter was thoroughly sifted and debated at the Bar and at the Bench also, and in the end either approved or disapproved, for the causes shown in this book, by the judgment of the Court," Plowden's Rep. Pref. at pp. iv, v.

2 Coke tells us, 8 Co. Rep. Pref. xxv, that he has reported Caly's Case, "To this end, that students, seeing the singular use of original writs, will, in the beginning of their study learn them, or at least the principallest of them without Book, whereby they shall attain unto these things of no small moment: I. to the right understanding of their books: 2. to the true sense and judgment of the law and lastly to the exquisite form and manner of pleading."

3 Vol. ii 539 540.

4 Below 463.

5 Thus in Woodland and Mantel v. Redsole (1553) Plowden at p. 95, Bromley J. is reported to have said-" this diversity that you put is moved by the way in the years of Henry 7, but there is no principal case adjudged upon it."

the argument leading to the formulation of the issue to the decision upon that issue; and to make it clear that, as a general rule, reportable cases were those which turned, not on an issue of fact, but upon an issue of law.1 Edmund Plowden, who was perhaps the most learned lawyer in a century of learned lawyers, who, it is said, might have been Lord Chancellor of England but for his adherence to the Roman church, was the pioneer of the modern style of law report. "All the cases here reported," he says, "are upon points of law tried and debated upon Demurrers or special verdicts, copies whereof were delivered to the judges, who studied and considered them, and for the most part argued in them, and after great and mature Deliberation gave Judgment thereupon. . . . And as to such cases as were argued by others, whereupon no Judgment was given in any point (of which cases there are many) I have staid and suspended my notes and Reports of the Arguments made in them." Coke, who justly eulogises Plowden's reports as "exquisite and elaborate," shows, by his definition of the term "report," and by his advice as to the use of reports, that the modern conception was gaining ground. He defines a report as "a public relation or a bringing again to memory cases judicially argued, debated, resolved, or adjudged in any of the king's courts of justice, together with such causes. and reasons as were delivered by the judges of the same; and, in the Case of Alton Woods," he says, "in the reports and arguments of matters in law the point adjudged is principally to be observed, and not matters of discourse which do not tend to the point adjudged." Obviously the centre of interest is shifting from the debate in court to the decision of the court.

"4

In the second place, this change necessarily led to the growth of the modern view as to the authority of decided cases; and this, in its turn, led to the growth of the practice of constantly citing cases in court, sometimes on the point and sometimes at a great distance from the point. Coke accurately describes the contrast between the old practice and the new." "The ancient order of arguments by our serjeants and apprentices of law at the bar is altogether altered. 1. They never cited any book, case, or authority in particular . . . but est tenus ore agree in nostre livres, ou est tenus adjudge in termes or such like, which order yet remains in moots at the bar in the Inner Temple to this day. 2. Then was the citing general, but always true in the particular; and now the citing is particular, and the matter

1 Vol. iii 654-655; below 374 n. I.

33 Co. Rep. Pref.

5

(1595-1600) 1 Co. Rep. at f. 52a.

6 10 Co. Rep. Pref. xii: cp. vol. ii 541-542.

2 Preface at p. v.
4 Co. Litt. 293a.

many times mistaken in general. 3. In those days few cases in law were cited, but very pithily . . . and now . . . such a farrago of authorities, it cannot be but there is much refuse." Clearly it was decisions and the reasons for them which were coming to be useful to the profession; and the appreciation of this fact will tend to prevent reporters from incumbering their reports with the recital of the miscellaneous events passing in court which was formerly customary. The report will tend to assume something of the impersonal character of the record.

In the third place, the demand for accurate decisions will tend to the growth of reports made in order to be published. A man's own notes made for himself will no doubt be useful enough to the taker. He generally has some sort of recollection of the events noted, and can silently correct inaccuracies. But we can see from many of the reports of this period that such notes will not bear publication without a great deal of revision. Reports made in order that they may be published will be obviously far superior to notes of cases made without any idea of publication. Plowden is again the pioneer of the habit of methodical and accurate reporting. He tells us that often before the case was argued he had studied the record with such care that he could have argued the case itself; and that after he had prepared his report he submitted it for correction to the serjeants and judges who had argued in it. Coke, too, carefully revised the reports which he published, and was unwilling that any work of his not so revised should be published after his death.3

It is not till the middle of the eighteenth century that we get, in the reports of Burrow, the beginnings of the regular series of authorized reporters attached to particular courts, who regularly made reports of the decisions of those courts for publication. During the whole of this period, the reports published were mainly posthumous publications of notes of cases taken by the

1 Above 371 n. 5.

2" And in order that I might execute this work with the utmost sincerity and truth, and to the intent that I might be more able to understand the arguments, and to comprehend the true causes of the judgments herein contained, let me inform the reader that in almost all the cases which I have undertaken to report, before they came to be argued, I had copies of the records, and took pains to study the points of law arising thereupon, so that often times I was so much master of them, that if I had been put to it, I was ready to have argued when the first man began. . And besides this, after I had drawn out my report at large, and before I had entered it into my book, I shewed such cases and arguments, as seemed to me to be the most difficult, and to require the greatest memory, to some of the judges or serjeants who argued in them, in order to have their opinion of the sincerity and truth of the report," Plowden, Pref. v.

"And (if it shall please God) I intend hereafter to set out another work, whereof I have only collected the materials, but not reduced them to such a forme as I intend, lest if I should leave it as it is, it might, after my death, be published (as hath bin done in the like case) before it be perfected," 8 Co. Rep. Pref. xxxv.

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reporters for their own use. It is not until the rise of these authorized reporters that the reports assume their modern form. But we do see that, under the pressure of professional needs, the reports of this period are, in their contents and style, gradually approximating to the contents and style of a modern law report. Bacon, at the beginning of the seventeenth century, had already foreshadowed the shape which the reports will eventually assume.1 But this development was then in the future. The reports of this period thus form the connecting link between the Year Books and those modern law reports, which begin with the authorized reports of the latter half of the eighteenth century; just as these authorized reports form the connecting link between the reports of this period and our semi-official series of the Law Reports.2

At the close of this period it was becoming clear that the growth of the modern reports was rendering the old abridgments of the Year Books quite inadequate to the needs of the practitioner. For some time this need was met by abstracts or digests of, and indices to, the regular reports. Several of these were published by different authors; but the author who made a speciality of this kind of literature was Thomas Ashe, who became a Bencher of Gray's Inn in 1597.* In 1600 he wrote a table to Dyer's reports," in 1607 an abridgment of Plowden's reports, in 1609 an abridgment of Dyer's reports,' in 1625 a collection of new cases of the time of Henry VIII., Edward VI., and Mary taken from Brooke's Abridgment, and an abridgment of Coke's

1 De Augmentis, Bk. viii c. 3 Aph. 74—" Let this be the method of taking down judgments and committing them to writing. Record the cases precisely, the judgments themselves word for word; add the reasons which the judges allege for their judgments; do rot mix up the authority of cases brought forward as examples with the principal case; and omit the perorations of counsel, unless they contain something very remarkable;" the translation is Spedding's.

See C. C. Soule, The Lawyer's Reference Manual 66-67.

E.g. we get abstracts of Coke's Reports by J. Davis; of Coke upon Littleton by Davenport; of the Doctor and Student; and of Dyer's Reports; see Thomas Basset, A catalogue of the common and statute law books of the realm (1671) 3; cp. also ibid pp. 85-87 for other tables and indices; among them we may note Fleetwood's Tables to the Y.BB.; and Townshend's Tables to the printed precedents of pleadings; we even get indices to the Abridgments; J. Rastell in 1517 published The Tables to Fitzherbert's Abridgment, Reeves H.E.L. iii 432; in 1553 an Abridgment to the Book of Assizes was published, ibid 565; and to the 1679 ed. of the Y.BB. of the second part of Henry VI.'s reign (21-39 Hy. VI.) there is annexed a very good index and abridgment made by Robert Barnwal of Gray's Inn. 4 Dict. Nat. Biog.

566

'Le Table al Lievr des Reportes del tres reverend Judge Si. Ja. Dyer." "Abridgement des touts les Cases Reportes a large per Mounsieur Plowden ovesques les Exceptions al pleadings et leur Responses les resolutions des matters in Ley et touts auters principal matters surdants sur les arguments de mesmes."

7 "Un Abridgement de touts les cases reportes per Mounsieur Jasques Dyer;" this work is anonymous, but it is attributed to Ashe in the Bodleian catalogue.

8"Ascuns nouvel Cases de les ans et temps le Roy H. 8, Edw. 6 et la Roygne Marie. Escrie en la grand Abridgement compose par Robert Brook;" at the end

reports together with an index of cases and an index to the subject matter.1 But his greatest work (published in 1614) was his "Promptuary or Reportory Generall de les annals et plusors autres livres del comen ley dengleterre." It consists of two volumes divided into four parts. At the end of each volume is additional matter published since the book was printed.2 At the end of the second volume there is also a list of authors drawn upon, and a collection of eulogies upon deceased judges taken from Coke's reports. The book itself is something between an abridgment and an index. It gives under alphabetical heads, rather the list of references where the law can be found, than the principles of the law itself. The headings no doubt suggest the principles: but the author does not state the principles explicitly. But these abstracts, digests, and indices did not do for the modern sources of law what the old abridgments had done. for the Year Books. It was becoming obvious, at the end of this period, that a complete and up-to-date abridgment was much needed. The need was met by the publication in 1668 of Rolle's Abridgment.

4

Henry Rolle was born in 1589, and was educated at Exeter College, Oxford, and the Inner Temple. He was made serjeant at law in 1640. He was a member of James I.'s last Parliament, and of the first three parliaments of Charles I.'s reign; and, from the first, he identified himself with the constitutional opposition. In 1645 he was created a judge of the King's Bench, and in 1648 chief justice. He accepted a renewal of his commission after the execution of Charles I., and acted as a member of the Council of State. In 1654, he narrowly escaped being hanged by a party of royalists led by Penruddock, who had surprised Salisbury while he was holding the assizes there. He was not disposed to agree to all Cromwell's arbitrary acts, and obtained his discharge from his judicial office in 1655. He died in the following year. He was one of that band of literary lawyers which, as we shall see, distinguished the earlier years of the seventeenth century. Hale draws a pleasant picture of the manner in which Rolle,

are "Aliquot Casus in quibusdam lecturis Temp. H. 8 et H. 7 cum paucis aliis casibus et regulis.'

1" Un general Table a touts les several livres de les Reportes de le darreine tres reverend Judge Sir Edward Coke Chevalier, jadis chiefe justice de Bank le roy, per quelle touts les cases et matters in yceux conteynus puissont facillment estre trouves. Övesques deux catalogues Alphabetical, L'un de les principal cases, l'autre de touts les general titres naturalment surdant hors del matter des dits Reports;" no date. 2 Principally taken from the roth part of Coke's Reports.

An example will show this; vol. i p. 10 the heading is, "Action sur le case § 8," and we read, "Ou accion sur cas gist vers cestuique garant chose vendu ou auterment, et ou le garante est material ou nemy," followed by a list of references to Dyer, F.N.B., Kitchin, Keilway, and also to another § in his own book. 5 Below 402-403.

4 Foss, op. cit. vi 472-475; Dict. Nat. Biog.

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