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Early English reporting Michael Bryan

Introduction their selfless contribution to the little resemblance to a modern law Over the years the at the administration of 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 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 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 , 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 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 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 , 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 ].’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- convincing answers have been given 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 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 the reports and the functions which the correct procedures to be followed. had been returned. Plowden the reports served. They were also used by 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 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 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 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 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 . 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 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. the law courts in the early years of consideration for the creation of a use her reign. He was fined for not was natural love and affection) and The 17th century: subscribing to the Articles of Religion was made Counsel to the Duchy of Holt and the memorialists laid down by the Elizabethan Lancaster, a royal appointment. He The standard of law reporting government. Nonetheless, in spite of never became a serjeant or a judge, declined during the 17th and early his recusant status, he proved too probably due to his religious 18th centuries and it was left to

University of Melbourne Collections, Issue 4, June 2009 47 Preface from vol. 1 of James Burrow, Reports of cases adjudged in the Court of King’s Bench, since the death of Lord Raymond: In four parts; distributed according to the times of his four successors, Lord Hardwicke, Sir William Lee, Sir Dudley Ryder, and Lord Mansfield. Part the fourth, 5 vols, Dublin: Printed by R. Moncrieffe, 1778–1785. Law Rare Books Collection, Law Library, University of Melbourne.

Burrow in the 18th century to restore reports are held in the Rare Books its reputation. The most significant Collection of the Law Library is Lord series of reports in the early 17th Robert Raymond, the author of century is Coke’s reports. The Raymond’s reports.10 He also hero- contribution the reports make to an worshipped Sir John Holt. Unlike understanding of the constitutional most of the anonymous contributors disputes of that century cannot be to Holt’s reports, however, Raymond underestimated, but the reports pursued a successful legal practice. themselves do not meet the high He was a , politician and standards set by Plowden, and the judge, his career culminating in his reader cannot always be certain appointment as Chief Justice of the whether the opinions expressed are King’s Bench in 1724. His reports are those of the judges, or simply of Coke reliable but his summaries of the himself. Unfortunately, Coke is the judgments delivered by Holt’s one major series which the Law colleagues are perfunctory. Raymond’s Library does not hold except in the interest in law reporting declined English Reports reprint.7 The other after Holt’s retirement and his later reporters of that century were reports are very scrappy. memorialists more than they were Law reporting was at a low ebb in reporters; their reports were tributes the early 18th century. The turning to admired judges as much as they point came with Burrow’s reports, were contemporaneous law reports. which are well represented in the An example, drawn from the late Rare Books Collection.11 17th century, is Holt’s reports, of Holt cannot bear comparison with which the library holds a copy.8 These the great compilation of the late Burrow’s reports reports were not written by the judge; Roman Empire. Nonetheless, Holt’s Sir James Burrow can justly be they were compiled by barristers who reports are not without interest. They described as the father of modern law hero-worshipped him. The volume include many early decisions on reporting. Like the memorialists he takes the form of an alphabetical defamation, in which Holt drew the was a hero-worshipper. His hero abridgement, or dictionary, of all the distinction, only recently eliminated was the great Chief Justice, Lord areas of law to which Holt made a by , between libel and Mansfield. The relationship between contribution. Compilers of slander, as well as his famous Mansfield and Burrow can plausibly abridgements of that era claimed, judgment in Ashby v White,9 which be described as the legal counterpart somewhat portentously, to be the established the common law right to of the relationship between Samuel intellectual heirs of the compilers of vote. Johnson and James Boswell. Burrow Justinian’s Digest, but volumes such as Another memorialist whose faithfully wrote up the great man’s

48 University of Melbourne Collections, Issue 4, June 2009 Title page from A report of all the cases determined by Sir John Holt, Knt, from 1688 to 1710, during which time he was Lord Chief Justice of England ..., Printed by E. and R. Nutt, and R. Gosling …, 1738. Law Rare Books Collection, Law Library, University of Melbourne.

judgments in the first part of the For example, Burrow reported the latter’s career from 1756 to 1772. It is litigation arising out of John Wilkes’s likely, but not certain, that Mansfield infamous issue no. 45 of the North checked the judgments before they Briton. Wilkes was accused of were published. Certainly the two seditious libel after describing King men had a close working relationship. George III’s speech from the throne Burrow originated the practice of in opening parliament as ‘the most writing a to each case. abandoned instance of ministerial The note contained few, if any, facts effrontery ever attempted to be and stated the relevant proposition of imposed upon mankind’.13 Lord law as concisely as possible. Burrow Mansfield held that the criminality of had a well developed sense of the a libel was a matter for the judge, not ‘reportability’ of a case, selecting cases the jury, a ruling that was later for publication on the basis either of overturned by legislation. Burrow’s the public interest in the decision or reports give us a vivid account of the because the case raised an important legal strategies adopted by the point of law. government to silence Wilkes. For some years Burrow wrote up The Wilkes decision was a Lord Mansfield’s judgments privately. landmark decision in the history of The introduction to the first civil liberties. But Burrow reported published volume of his reports less sensational decisions which conveys a strong sense of the private were nonetheless crucial to the frustrations which motivated his development of the common law. decision to publish: of concern in. The inconvenience They include Carter v Boehm,14 still a grew from bad to worse, till it leading decision on the duty of I was subject to continual became quite insupportable: and disclosure in insurance law, and interruption and even from thence arises the present Millar v Taylor,15 the foundation case persecution, by incessant publication.12 of the law of copyright. applications for searches into my Burrow led a full life and had notes; for transcripts of them (not But if Burrow’s reasons for publishing numerous interests outside the law. only returned without trouble and his reports were not high-minded He was President of the Royal solicitation); not to mention they were nevertheless vindicated by Society and wrote a tract entitled ‘A frequent conversations upon very the success of the publication. Burrow few thoughts on pointing’ (the name dry and unentertaining subjects, was the first commercially successful given to punctuation). When he died which my consulters were paid reporter of English law, and his in 1772 the epitaph on his tombstone for considering, but I had no sort success encouraged many imitators. read, ‘The convivial character was

University of Melbourne Collections, Issue 4, June 2009 49 what he chiefly affected, and it was in the history of law reporting. In 4 Brand, Earliest English law reports, p. 13. 5 Edmund Plowden, The commentaries, or Reports his constant wish to be easy and 1885, Nathaniel Lindley, later a law of Edmund Plowden ... containing divers cases cheerful himself and to see others in a lord, wrote that ‘A multiplicity of law upon matters of law …, 2 vols, Dublin: Printed like disposition.’ reports is a great evil. The evil was for H. Watts and W. Jones, 1792. Law Rare Books Collection, Law Library, University of Many lawyers like to do good and once intolerable; it may become so Melbourne. to do well. Burrow showed the again.’16 It is possible to have too 6 (1565), Plowden, Commentaries, vol. 1, p. 298. profession that law reporting was an many cases reported. Discrimination 7 Sir , The reports of Sir Edward Coke, Knt., in English in thirteen parts complete, indispensable legal service that was in the selection of cases is a virtue. with references to all the ancient and modern also lucrative. The second half of the The holdings in the Rare Books books of the law ...: to which are now added the 18th century and the first half of the Collection in the Law Library of the respective pleadings in English, 7 vols, London: Printed for J. and F. Rivington …, 1776–1777. 19th century was the great era of the University of Melbourne are a tribute Law Rare Books Collection, Law Library, private reporter. It was a system to an age in which professional University of Melbourne. which produced the best and the knowledge of the law depended on 8 A report of all the cases determined by Sir John Holt, Knt, from 1688 to 1710, during which time worst reports. By the mid-19th pioneers such as Plowden and he was Lord Chief Justice of England ..., Printed century it was said that a barrister Burrow, as well as on the anonymous by E. and R. Nutt, and R. Gosling …, 1738. wanting coverage of all the courts of compilers of the medieval year books. Law Rare Books Collection, Law Library, University of Melbourne. record of the day needed to possess 17 9 Ashby v White (the Aylesbury voters’ case) (1703), different sets of reports. The Michael Bryan is a professor of law at the Holt Kings Bench 524, 90, in A report of all the University of Melbourne. Educated at Oxford University of Melbourne’s Law cases determined by Sir John Holt, p. 1188. and London universities, he has taught at Oriel 10 Robert Raymond, Reports of cases argued and Library holds numerous private College, Oxford, and Queen Mary College, adjudged in the Courts of Kings Bench and reports from this period. In 1865 the London University. He has researched and Common Pleas … taken and collected by the Right published extensively in the areas of , trusts professional bodies decided to wrest Honourable Lord Raymond, late Chief Justice of and . He was Deputy Dean of the the Court of King’s Bench, 3 vols, London: control of law reporting from the Melbourne from 1999 to 2003. Printed by his Majesty’s law-printers …, 1790. private reporters. The Incorporated Law Rare Books Collection, Law Library, Council of Law Reporting was University of Melbourne. 11 James Burrow, Reports of cases adjudged in the established by the Inns of Court in Court of King’s Bench, since the death of Lord London to supervise the production Notes Raymond: In four parts; distributed according to of official reports. Most private the times of his four successors, Lord Hardwicke, 1 J.H. Baker, The common law tradition: Lawyers, Sir William Lee, Sir Dudley Ryder, and Lord reporters had the good economic books and the law, London: Hambledon Press, Mansfield. Part the fourth, 5 vols, Dublin: sense to take employment with the 2000, p. 133. Printed by R. Moncrieffe, 1778–1785. Law Council. 2 Paul A. Brand (ed.), The earliest English law Rare Books Collection, Law Library, reports, vol. 4, London: Selden Society (vol. University of Melbourne. The fears that lawyers entertain 123), 2007, p. 11. 12 Burrow, Reports of cases, vol. 1, Introduction. today—that too many cases are 3 The authors of some later year books have 13 (1770), Burrow, Reports of cases, vol. 4, p. 2527. reported, that ‘more means worse’, been identified. An example is Caryll’s reports; 14 (1766), Burrow, Reports of cases, vol. 3, p. 1905. see J.H. Baker (ed.), Reports of cases by John 15 (1769), Burrow, Reports of cases, vol. 4, p. 2303. that too much dross is reported along Caryll, London: Selden Society (vols 115– 16 Nathaniel Lindley, ‘History of the law reports’, with the gold—are recurrent themes 116), 1999–2000. Law Quarterly Review, no. 2, April 1885, p. 149.

50 University of Melbourne Collections, Issue 4, June 2009