Early English Law Reporting Michael Bryan

Early English law reporting Michael Bryan Introduction their selfless contribution to the little resemblance to a modern law Over the years the Law Library at the administration of justice by donating report. The reporter showed little University of Melbourne has built up their hides to what became known as interest in setting out the facts of a an impressive collection of early the plea rolls. These were the formal case. Moreover, few reports carried English law reports. This is not the parchment record of the proceedings any discussion of legal doctrine. On outcome of a deliberate acquisitions which ran continuously from (at least) the other hand, the year book reports policy; until recently there was no 1194 until the reign of Queen contained matter which would not be such policy, and various serendipitous Victoria. They were written in Latin found in a modern law report, gifts and bequests are responsible for which was the language of record including extra-curial opinions of the collection of reports, extending until 1732. The plea rolls noted the judges and practitioners on the law, as from the 16th to the 19th centuries. plaintiff ’s writ, the defendant’s reply well as the opinions of the reporter on The library has no holdings of and subsequent pleadings, the process a disputed question. The name ‘year medieval reports. On the other hand, of summoning a jury in jury actions, book’ is misleading since only a it has a complete run of the Selden judgement and process. The record minority of the books are chrono- Society editions of medieval year created and evidenced what later logically arranged, and the work of books so that, one way or another, the became known as res judicata, or modern scholars has imposed a entire history of English law estoppel by judgment, so that a party retrospective sense of order on the reporting until 1865 is represented. It could not re-litigate matters later books that they lacked at the time of was in that year that the legal which had been the subject matter of publication. The earliest identifiable profession instituted the Incorporated the earlier decision. year book was published in 12682 and Council of Law Reporting which The plea rolls were the closest they were published until the 16th took over the publication of law approximation to official reports century. In contrast to the Latin of reports from the private reporters. It until official law reporting itself was the plea rolls most of the year books would not be practical for the library established in England in 1865. were published in the English version to obtain copies of all the privately But they tell us little about the of French known as Anglo-Norman. published reports—most of which development of the law. They This language appears to have been have anyway been republished in the recorded who won a case but not used even after English became usual English Reports—but most of the why it was won, or which arguments for forensic arguments. principal series of reports are well prevailed and which others were Some mysteries still surround the represented in its holdings. rejected. For the flavour of early publication of the year books. One common law the reader has to turn concerns the regularity of publication The year books to the year books. for over a century after 1400. Who ‘Over a million sheep, during six The year books reported what was responsible for ensuring the centuries, gave their skins to make the judges actually said in court, and so regular production of year books? “record” [of the proceedings of the may be considered the earliest form of Were there official reporters of some central courts].’1 The sheep made law reports. The early year books bore kind? Were institutions such as the University of Melbourne Collections, Issue 4, June 2009 45 Inns of Court or Chancery the diversity of purposes for which the facts of a case, as well as the supervising the production of the the year books were used. These reasoning of the judges. The year later year books? No wholly included reminding judges and books principally reported pre-trial convincing answers have been given counsel of points which had been procedures of cases which would to these questions, although there has decided during the course of ultimately be heard by a jury. Most of been no lack of speculation. protracted litigation, noting Plowden’s reports concern directions But recent scholarship has given disagreements between judges as to to juries and the consideration of us a clearer idea of the authorship of the availability of a particular writ or questions of law after a jury verdict the reports and the functions which the correct procedures to be followed. had been returned. Plowden the reports served. They were also used by barristers who sometimes appended notes to his At any rate until the 16th century wanted ideas on the arguments likely reports on the legal issues raised by a authorship of the year books was to succeed in particular kinds of case decision. Such was his standing in the anonymous.3 It is unlikely at this as well as arguments that cut no ice profession and among later lawyers distance of time that the identity of with the judges. Finally, they were that his comments on a case carried as individual compilers will ever be used by law students for instructional much authority among lawyers as the discovered. But it is possible to purposes. The later year books, which judgments he reported. deduce their occupation. Some were are more uniform in presentation, An example drawn from clerks or other court officials who were prepared solely for the Plowden’s reports is the celebrated wrote down the out-of-court profession and for students enrolled case of R v Saunders, in which utterances of the judges, as well as in the Inns of Court. Saunders handed his wife a poisoned their curial remarks. Others seem to apple, intending to kill her. His wife have been lawyers involved in the case Edmund Plowden: gave the apple to their daughter who or attorneys reporting back to clients. The first law reporter died in consequence of eating it. The Some lawyers reported cases as The year books ceased to be significance of the decision was that observers, as their 20th century published in the 16th century. Their the judge recognised the concept of successors were to do, rather than as successors were reports published by ‘transferred malice’: someone who participants. Finally, law students individual barristers. One of the intends to kill X but when the plan reported cases. Writers on the year earliest and greatest reporters was goes astray in fact kills Y—whom he books have drawn attention to the Edmund Plowden. Copies of had no intention of killing—is guilty fact that, not long after the series was Plowden’s reports are held in the Rare of murder. initiated, the layout of the Court of Books Collection of the Law Library, At the end of the report of R v Common Bench was altered so that it not in the original (which was written Saunders Plowden wrote up his contained a ‘crib’ for the use of in Anglo-Norman) but in an 18th comments on another aspect of the apprentices, which would have century translation.5 Plowden can be case which had caught his attention. facilitated their writing of the reports.4 described as a ‘modern’ reporter in the A co-defendant, Archer, had bought The diversity of authors reflects sense that he gave a full account of the arsenic for Saunders which had 46 University of Melbourne Collections, Issue 4, June 2009 Extract from ‘The Queen versus Saunders and Archer, at Warwick Assizes’, in Edmund Plowden, The commentaries, or Reports of Edmund Plowden ... containing divers cases upon matters of law …, 2 vols, Dublin: Printed for H. Watts and W. Jones, 1792. Law Rare Books Collection, Law Library, University of Melbourne. been placed in the apple. Archer’s acquittal on the charge of being an accessory before the fact prompted Plowden to set out his views on the nature of accessory liability. When was the purchase of poison by a third party a direct cause of the murder, so that the purchaser was an accessory to the crime, and when, as in Archer’s case, was it a ‘distinct thing’ from the murder itself? Plowden’s analysis of accessory liability was as significant for the development of accessory liability in the criminal law as R v Saunders itself was to the development of the concept of ‘malice aforethought’ in the law of murder. Why was Plowden so influential? In order to answer this question we must briefly examine his career. Plowden was a recusant Catholic who gave good service to Queen Elizabeth’s Protestant administration. useful to the government for his affiliation, but on his death the He had previously been an services to be ignored. He advised the Queen bestowed land in Shiplake, independently minded member of Queen on questions relating to the Oxfordshire, on his widow and parliament in Queen Mary’s reign creation of uses of land which affected children. Even though Plowden was who had opposed the reintroduction royal fiscal interests (he was a counsel prevented by political circumstances of heresy laws. But he remained a in Sharrington v Strotton,6 a landmark from attaining judicial office, he was Catholic upon Elizabeth’s ascent to decision holding that the Statute of held in as high regard as those who the throne, and defended Catholics in uses did not apply where the were appointed to the bench.

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