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CORNELL UNIVERSITY LAW LIBRARY
The Moak Collection

poRCHASen FOR © ae
The School of Law of Cornell University

And Presented February 14, 1893
IN TIETIORY OF
JUDGE DOUGLASS BOARDMAN

FIRST DEAN OF THE SCHOOL
By his Wife and Daughter
A. M. BOARDMAN and ELLEN D. WILLIAMS e
oi University Library
KD 411

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THE RIGHT Hon. THE EARL OF SELBORNE.

Lorp fiGH [HANCELLOR

 
THE HISTORY

AND

ORIGIN OF THE LAW REPORTS,

TOGETHER WITIL

A COMPILATION OF VARIOUS DOCUMENTS SHEWING THE PROGRESS
AND RESULT OF PROCEEDINGS TAKEN FOR
THEIR ESfABLISHMENT.

AND THE CONDITION OF THE REPORTS ON THE
8lst DECEMBER, 1883.

BY

W. T. S. DANIEL, QC.,

LATE JUDGE OF COUNTY COURTS, AND FORMERLY VICE-CHAIRMAN OF TBE
COUNCIL OF LAW REPORTING,

LONDON:

WILLIAM CLOWES AND SONS, Liuirep,
27, FLEET STREET

1884.
LONDON:

PRINTED BY WILLIAM CLOWES AND SONS, LIMITED,
STAMFORD STREET AND CHARING CROSS.
TO
THE RIGHT HONOURABLE
THE EARL OF SELBORNE,
THE LORD CHANCELLOR,

IN ACKNOWLEDGMENT OF THE KINDLY AND EFFICIENT
SERVICES RENDERED BY HIM, AS
Attorney-General,

IN FURTHERING THE EFFORTS OF THE BAR TO AMEND THE SYSTEM OF
LAW REPORTING; AND ALSO OF VARIOUS
ACTS OF COURTESY TOWARDS MYSELF IN CONNEXION
WITH THE SAME EFFORTS,

This ork
I8, WITH HIS LORDSHIP’S CONSENT,

Respectiully Dedicated by

THE AUTHOR AND COMPILER.
PREFIX.

I desire to offer my thanks to the Incorporated Council of Law
Reporting, and particularly to the Chairman, Joseph Brown,
Esq., Q.C., for the kindness and liberality shewn to me in allow-
ing their Secretary, James Thomas Hopwood, Esq., to render me
assistance in the compilation of this work : and especially are my
thanks due to Mr. Hopwood for the valuable services he has
willingly rendered me in allowing me access to various books
and papers not in my possession, and the labour he has bestowed
in making copies and extracts for me from the muniments of the
Council. I beg also to acknowledge the assistance I have received
from Mr. Doyle, the Steward of Lincoln’s Inn, in giving me in-
formation and making for me copies of entries in the books of the
Inn relating to the appointment of Members of the Bench as
representatives of the Council of Law Reporting, of which I have

made full use.
W. T.S. Dantret.
CONTENTS.

DEDICATION.

PREFIX.

PRELIMINARY STATEMENT. ‘ ; ; : : : 1!
FIRST DIVISION.

The state of professional opinion upon the evils of Law Reporting
and the efforts made for their removal prior and up to the distri-
bution of the Paper of the 18th of May, 1863 . ‘ ; ‘ 3

SECOND DIVISION.
The steps taken after the 18th of May, 1863, and up to the 2nd of
December, 1863, the day on which the first oe of the Bar
was held . : ; : é s . 27°

THIRD DIVISION.
The steps taken after the 2nd of December, 1863, and up to the
28th of November, 1864, the day on which the third meeting of
the Bar was held . ; 3 % F : . 96

FOURTH DIVISION.
The steps taken after the 28th of November, 1864, and up to the
2nd of November, 1865, the day on which “The Law pee %
were commenced , 3 ‘ é : . 243

CONCLUSION.
A Supplementary Chapter is added shewing some of the proceed-
ings of the Council up to the 2nd of June, 1870, on which day
the Author resigned his office as Vice-Chairman and his seat on
the Council. And also the professional and financial condition
of “The Law Reports” up to the 31st of December, 1883 . 285

APPENDIX.
Tabular Statements shewing—
1. The elevation to the Bench and professional advancement of
the several Members of the Bar Committee, and their attend-

ance at Meetings of the Committee ‘ - : 827, 3829
2. The elevation to the Bench of ex-officio Members of the

Council. 330
3. The elevation to the Bench af Worbers af the Counell ether

than ex-officio Members : 331
4, The elevation to the Bench and pr fessional sdyanecwicat ot

various Reporters appointed by the Council . 5 . 832

INDEX ; ‘ . ; : ; d ‘ ‘ ; 333-3859
HISTORY OF “THE LAW REPORTS.”

 

PRELIMINARY STATEMENT

Explanatory of the object and character of the publication, as a
history of the origin of “ The Law Reports.”

“Tue Law Reports” commenced on the Ist day of Michaelmas
Term (2nd November), 1865.

The first step taken with a view to their establishment was
taken by me in distributing for private circulation among the
members of the Bar a printed paper dated the 18th of May,
1863.

The interval between the distribution of that paper and the
commencement of the “Reports” embraced a period of about
two-and-a-half years. And that period was occupied with a series
of representative proceedings on the part of the Bar which, per
varios casus, per tot discrinina rerum, resulted in the establishment
of “ The Law Reports.”

At the commencement of the Long Vacation in the present
year (1884) these “Reports” had been in existence, and in con-
tinuous circulation, for nineteen years. And from their first
establishment, and continuously throughout the whole period of
their existence, they have proved an undoubted financial success.
And that success could not have been achieved unless they had
also succeeded in at once acquiring, and continuing thenceforth
to maintain, the confidence of those for whose use they were
established.

Looking back through this vista of years I hope I may be
allowed to join with others (fellow labourers with me) in con-
templating with justifiable satisfaction the uniform and hitherto
continuous success of the object of our common labours: an object

which I may here observe never was, nor was ever intended to be,
ho A
bo

HISTORY OF «THE LAW REPORTS.”

of any direct pecuniary advantage to any individual Member of
the Bar who took part in its promotion; and is now, and for the
future will continue to be of importance, only so far as it may
prove itself to be of utility to the profession and the public.
Viewed in this light, I have ventured to think that a detailed
statement of the various steps that were taken towards the accom-
plishment of the contemplated object—in their order of date—
together with a statement in detail of all the accompanying
circumstances, might be not without interest to the body of the
present subscribers, as well those still surviving who took part in
the original proceedings, as those who have since become sub-
scribers; and who will now learn, perhaps for the first time, the
difficulties which were met with in maturing a design which,
accomplished, has proved so useful to them: and with what pains-
taking and disinterested firmness those difficulties were at length
overcome. And even with the survivors, although the memory
of those occurrences in which they took part may have faded
away, and, like footprints on the sands of time, may have been
obliterated by the flood of new events and ever-recurring change

to each of them,
Sic olim meminisse juvabit.

I propose to comprise the history of the origin of “The Law
Reports” in four chronological divisions.

First division.—The state of professional opinion on the evils
of Law Reporting, and the efforts made for their removal prior
and up to the distribution of the paper of the 18th of May, 1863.

Second division.—The steps taken after the 18th of May, 1863,
and up to the 2nd of December, 18638, the day on which the
first meeting of the Bar was held.

Third division.—The steps taken after the 2nd of December,
1863, and up to the 28th of November, 1864, the day on which
the third meeting of the Bar was held.

Fourth division.—The steps taken after the 28th of N ovember,
1864, and up to the 2nd of November, 1865, the day on which
“The Law Reports” were commenced.

Conclusion.

W. T. S. Dante.
December, 1884.
HISTORY OF “THE LAW REPORTS.” 3

FIRST DIVISION.

The state of professional opinion upon the evils of Law Reporting,
and the efforts made for their removal prior and up to the dis-
tribution of the paper of the 18th of May, 1863.

Ir is matter of notoriety that for a considerable period, perhaps
for more than twenty years, before 1863 the evils of the then
existing system of Law Reporting had been felt, and several
well-intentioned efforts had been made, on behalf of the profes-
sion, to devise a remedy. As early, I believe, as 1843 or there-
abouts an attempt was made by a few zealous Law Reformers to
form a society to be called, under the shadow of a great name,
the Verulam Society; one of the objects of this Society would
appear to have been to devise a scheme for exercising professional
control over the preparation and publication of the Reports of
decisions in the Superior Courts of Law and Equity. The
Society held several meetings; but the sparks of early zeal could
not be kindled into a flame, the difficulties of devising a practical
remedy for the admitted evils soon became so apparent that all
attempts were abandoned as hopeless, and the Verulam Society
ceased to exist, leaving behind it the memory of having done no
harm and no good. One of the leading members of the defunct
Society was the late Mr. Serjeant Cox; and after the collapse of
that Society, he, probably foreseeing advantages which the Society
failed to realize, but acting in another direction, about this time
founded “The Law Times,” which, as a commercial undertaking,
prudently begun and skilfully maintained, has at length grown
into one of the most valuable ephemeral legal publications of the
day.

The Law Amendment Society was established in the year
1844, of which Mr. Serjeant Pulling was a most energetic
member; its members, however, were not confined to the legal
profession but included civilians, who were interested in all
questions which called for amendment, by means chiefly of the
Legislature. In the year 1848 the Society, at the instance of
4 HISTORY OF “THE LAW REPORTS.”

Mr. Serjeant Pulling (who had long interested himself in the
question) took up the question of Law Reporting with a view to
a remedy, and for that purpose appointed a special Committee,
directed “to consider what improvements, if any, may be made
in the present system of Reporting, and generally in the mode
of publication of Law Books.”

Of this Committee Mr. Serjeant Pulling was the Chairman. He
prepared the report, as a separate report confined to the subject
of Law Reporting, and this report was adopted by the society,
and extensively circulated.

I give this report in eatenso, as I might fail to do justice to
the labour and learning exhibited by it were I to attempt an
analysis or abstract.

The following is a complete copy.

SOCIETY FOR PROMOTING THE AMENDMENT OF THE
LAW.

Report of a Special ComMITTgeE on the Law Reporrine System.

The following reference was made to a Special Committee :—

“To consider what improvements, if any, may be made in the
present system of Reporting, and generally in the mode of
publication of Law Books.”

REPORT.—1849.

Your Committee have considered the two subjects submitted to
them, and are of opinion that the present system of law reporting
and law book publication are both capable of great improvement.

The evils arising from the present systems appear to the Committee
to be of a very serious nature; and it affords some degree of satisfac-
tion to them to find that the remedies which seem the most practicable
are not calculated to produce commensurate injury to any parties
interested.

Considering the subject of Law Reporting to be of a more urgent
nature than the other branch of the present reference your Com-
mittee have been induced to make a separate Report thereon, re-
serving the general question of publishing law books for a future
report,
HISTORY OF “« THE LAW REPORTS.” 5

The judicial decisions of the Superior Courts at Westminster, as
reported in the volumes recognised by the Courts, constitute at
the present day, almost equally with the statute book, the law of the
land.

They are, to use the language of Sir Matthew Hale (1), “ the formal
constituents of the common law;” and yet, by a singular inconsis-
tency, whilst every Act of Parliament requires the sanction of the
three estates of the realm, and its contents are communicated to the
public in the most authentic form, the law laid down by our tribunals
is in no respect officially promulgated. A statute creating the most
trifling alteration in legal procedure is ushered into public notice in
the most formal manner possible; a judicial exposition of one of the
leading principles of our common law, materially affecting the future
administration of justice, the rights of property, or the liberty of the
subject, may take place without notice and without anticipation,
amidst an inattentive crowd, whilst the voice of the Judge who deli-
vers it may not reach any one beyond the parties immediately interested
in the case which gives rise to it.

This remarkable inconsistency is productive of greater inconvenienve
at the present day than at any previous period. The concurrent
jurisdiction of the Superior Courts; the establishment of local tri-
bunals; the extensive jurisdiction of the Quarter Sessions; and other
Courts remote from Westminster Hall, render it indispensable, in
order to secure uniformity in the administration of justice, that the
reports of the judicial exposition of the law at the fountain head
should be accurately and expeditiously published, and in such a form
as to secure their being generally accessible to all who are either
officially or professionally engaged in administering it.

‘The anomalies connected with the system of Law Reporting have
become especially conspicuous in modern times. The legal decisions
which, in more remote ages, seem to have been preserved in the
memory of official recorders (2), we know were in this country, during
many reigns, promulgated by officers of the Courts in authentic form.
The growth of our reporting system is thus described by the two
great commentators on the Laws of England.

Lord Coke observes (3)—

“Of ancient time, in judgments at the Common Law, in cases of
difficulties, either criminal or civil, the reasons and causes of the
judgment were set down in the Record; and so it continued in the
reigns of Edward I. and most part of Edward II.: and then there was

(1) C. L., c. 4, p. 139, ed. by Runnington.

(2) See an article on this subject in the “ Edinburgh Review ” for August,
1820, title, Laws of the Scandinavians.

(3) 4 Inst. p. 4.
6 HISTORY OF “THE LAW REPORTS.”

no necd of Reports. But in the reign of Edward IIT. (when the law
was in his height), the causes and reasons of judgments, in respect of
the multitude of them, are not set down in the Record ; but then the
great casuists and reporters of cases (certain grave and sad men), pub-
lished the cases and the reasons and causes of the judgments and
resolutions which, from the beginning of the reign of Edward ITI. and
since, we have in print.”

Sir William Blackstone’s remarks on the system of reporting in his
time are of a less favourable nature :—‘‘ The Reports are extant in a
regular series from the reign of King Edward the Second inclusive ;
and from his time to that of Henry the Eighth, were taken by the
prothonotaries or chief scribes of the court, at the expense of the
Crown, and published annually, whence they are known under the
denomination of the Year Books. And it is much to be wished that
this beneficial custom had, under proper regulation, been continued to
this day: for though King James the First, at the instance of Lord
Bacon, appointed two reporters, with a handsome stipend, for this
purpose, yet that wise institution was soon neglected, and from the
reign of Henry the EHighth to the present time this task has been
executed by many private and contemporary hands, who, sometimes
through haste and inaccuracy, sometimes through mistake and want of skill,
have published very crude and imperfect (perhaps contradictory) accounts of
one and the same determination.” (1)

Many subsequent writers (2) have denounced our system of Law
Reporting, and the seventy years which have elapsed since Sir William
Blackstone wrote, have added to; rather than diminished, some of the
evils he points out, for though in respect of accuracy, completeness,
and skill, the reporters of the present day have cured many of the
faults of their predecessors, yet from the vast increase of new ques-
tions of law and practice which at the present day annually arise in
ows: Courts, and the great inducements which then arise for comprehen-
sive reports, a new evil has grown up, unknown in the days of the
learned commentator,—that the reports of the decided cases in any
year for one term in any of the Superior Courts at the present day
exceed, in bulk, those of all the tribunals in the country for the whole

(1) 1 Bl. Com. 71, 72.

(2) “The number of reporters, and the manner in which many cases are
reported, are most serious evils,—evils which cannot be too much lamented,
nor sufficiently exposed. The contradictory statements of the same case, the
confounding the arguments, nay, assertions of the counsel, with the decisions of
the Courts, the obiter and extra-judicial sayings of the Judges with the grounds
of the judgment, the observations of the reporter with the points of the case,
call aloud for the nicest and severest discrimination.” — Watkins’ Principles of
Conveyancing, Introduction, p. xiii.
HISTORY OF “THE LAW REPORTS.” 7

year at the period alluded to (1). Competition, ordinarily productive
of so much good, in this instance adds to the evil. The higher class
of reports, which really are or ought to be the records of the existing
law, are made as elaborate as the cases will admit of. The whole of
the written pleadings, the documentary evidence, the speeches and
arguments of counsel, with the various authorities cited on each side,
are often given even in cases where the actual decision of the Courts
really expounds no new doctrine of law, or is confined to some isolated
point. The time which is necessary to effect this, often prevents the
decisions of our tribunals being communicated to the public until long
after they have been given, and after suitors have taken a course in
direct but unconscious opposition to them, and occasionally, even after
other judges have unknowingly pronounced directly conflicting deci-
sions. The bulk and expense too of these reports render their contents

(1) The following statistics of the Reports may not be devoid of interest.

Common Law.

 

 

No. | Average of | Average of
Reporter. Court. Date. of | Pagestoa | Cases in

Vols.| Report. Volume.
Croke. . . | KLB.& C.P.| 24 Eliz. tol6Car.I.}| 4] 1°18 450
Lord Raymond . _— Will. TIL to Geo. IT.} 2] 1°34 597*
Salkeld . . —_— 1 Will. TI. toAnne}] 3] 1°38 266*
Sir W. Blackstone — 1745 to 1779 2} 1°8 3807
Burrows . 3 K. B. 1756—1770 5 | 3°8 153
Douglas . — 1779—1785 4] 2-7 152
East... — 1800—1812 16] 4°3 108
Maule & Selwyn — 1813—1817 6] 4:78 117
Barn. & Ald. — 1817—1822 5 | 4°79 150
Barn. & Cres. — 1822—1831 10] 4°95 175
Barn. & Ad. . — 1831—1834 5}; 6 169
Ad. & Ellis... —_— 1834—1841 11 | 6°45 152

Ditto N.S. . — 1841—1848 8] 7:75 131
Henry Blackstone Cc. P. 1788—1796 2] 3:9 170
Bosanquet &

Puller . — 1804—1807 By 4 100
Broderip & Bing. _— 1820—1822 3] 6°9 156
Bingham. . . _— 1822—1834 9] 4:5 172

Ditto N.C. . 1834—1840 6] 4:4 142
Scott. 2 — 1835—1845 16} 7°6 114
Manning, Grain-

ger, and Scott. — 1845—.1848 3} 9:6 101
Price . gig Exch. 1814—1825 13 | 8°6 77
Crompton, &c. _— 1831—1836 6] 4:79 141
Meeson &

Welsby — 1836—1847 15 | 6°65 129

 

 

 

 

 

 

* The pleadings take up in Lord Raymond’s Reports 361 pages, and in
Salkeld 100 pages additional.
8 HISTORY OF “THE LAW REPORTS.”

inaccessible to the great majority of those who are officially or profes-
sionally expected to be acquainted with them, and the supply of rival
productions simply adds to the cost without diminishing the incon-
venience.

It has long been considered a practicable scheme for any barrister
and bookseller who unite together with a view to notoriety or profit,
to add to the existing list of Law Reports. It may be that such
reports may be rarely referred to, that they may be inaccurate, that

 

 

 

 

 

 

 

Eaurry.
|
No. Average of Average of
Reporter. Court. Date. of | Pages toa Cases ina

' Vols.” Report. Volume.

-
Peere Williams . . | L.C. & Rolls | 1695 to 17385, 3 3°85 + 200
Ambler us ee — 1737—1778 | 2 | 2:49 5 171
Atkyns . . . . — 1736—1754 1 8) 2°79 , 286
Vesey, junr. . .. — 1789—1812 19° 5:33 | 128
Vesey & Beames. . -- 1818—1814: 38> 46 | 82
Merivale . . . — 1815—1817 | 3, 7:4 91
Swanston... — 1818—1820 | 3 | Be |
Jacob & Walker... — ; 1819—1821 | 2: 7-8 91
Jacob. . . . . = 1821—1822 | 1 | 5-2 121
Russell . 2... —_ , 1828—1829 5 6:1 97
Mylne& Keen . . — - 1882—1835 | 3} 8-1 87
Mylne & Craig . . | Chancery. .  1835—1841 5 10 72
Phillips . . . . — , 1841—1847 | 1) 7 115
Keen . . . . «| Rolls. . . 1836-1839 2) 85 96
Beavan oe say oo —_— —1839—1847 | 9 4:9 124
Maddock . . . . | V.-C.of E. .  1817—1826 | 6! 4:9 104
Simons... . = | 1826—1847 | 15 | 6-2 102
Young & Coll. . . | V.-C.K.B. . 1841-1844 | 2) 7:1 98
Hare . . . . . | V.-C. Wigram 1841-1847 |} 5 | 7:3 85
Schoales & Lef. . . | Irish. . . | 1802—1806 2; 9°7 62
Rose . . . . . | Bankruptcy . | 1810—1816 | 2] 1:6 290
Mont. & Ayrton. . —_— | 1834—1838 | 3 3:7 213

 

 

 

Dalloz. Receuil Periodique et Critique de Jurisprudence, par M. Valloz ainé
et M. Armand Dalloz, son frére.

 

 

 

Year. Cases. Pages. ae Total Average.
Cases computed . . 1846 1408 524 ‘87
Eee 1845 1570 613 °39
= 1si4 | 1372 | 640 46
a= 1843 1428 712 “49
— =i

 

 

 

 

N.B.-—The pages are double quarto and the type rather small
HISTORY OF “THE LAW REPORTS.” 9

they may be of little or no authority,—they nevertheless remain.
They tend to confuse the science; they muddy the stream and bring
on, more especially in some after age, all the evils described by Black-
stone. A case of great importance (1) was decided a few years ago
upon the authority of a note in Lofft’s Reports (2), which one of the
learned Judges observed, with some bitterness, he had never heard
three cases quoted from during a professional life of forty years (3) ;
and some of the inferior law reports of the present day may, perhaps,
meet a similar fate. But even if all the reports which are published
were correct and given by competent persons, they are now so nume-
rous that they cannot be known to one tithe of the practitioners in
the law. They are beyond the reach, not only of the public, but of
the great body of the profession. Indeed, it is not too much to say that
few of the Judges or the Bar (and hardly any of the solicitors) take
in all the current reports. Wherever there is the smallest opening, the
profitable trade of law bookselling establishes a fresh series of reports.
In each of the Common Law Courts, it is true the rival series of
reports which have been recently the longest established have been
amalgamated ; but long before this point was gained numerous series
of reports had been set on foot, professedly confined to practice cases,
criminal cases, sessions’ cases, registration cases, railway cass, parliamen-
tary cases, éc., but containing reports of decisions vouched as correct
by barristers, whose accuracy must, under the existing system, be
assumed.

The competition of the reporting system is thus carried on without
regard to the interests of the profession or public. The gentlemen
who undertake these reports are often highly competent men; indeed,
many of them have been raised to the bench of Westminster Hall.
Independent of the profit of reporting, it is a good channel to profes-
sional notoriety; but here is one great evil of the system. If the
reporter has other professional engagements, he loses his anxiety
about his reports, he throws up his office when he pleases (and cannot be
blamed for this), and it has been held that the bookseller cannot compel
him to perform it. Thus we have chasms in our law reports, which will
occur readily to any professional reader, which can never be supplied.
It is well known that an eminent counsel (formerly a reporter) prac-
tising at the Chancery Bar, has at the present moment notes of the
decisions of a deceased Lord Chancellor, taken by the learned counsel
in his character of reporter, but to this time unknown as law to all
the profession save the parties engaged in these causes. In the preface

(1) Smith v. Doe dem. Jersey, 1 B. & B. 97; 2 B. & B. 536.
(2) Hottley v. Scott, Lofft, 316.
(3) Observations of Park, J., 2 B. & B, 536,
10 HISTORY OF “THE LAW REPORTS.”

to a work recently published by a late Lord Chancellor of Ireland (1),
it is observed, “ whilst at the bar, the author retained all the printed
cases on appeal in which he was counsel, with his own notes and the
notes of the argument. From this source, principally, he has been
enabled to add the cases not at present reported between 1821 and
1826.

Thus, under the present system of reporting, the law expounded in
Westminster Hall may not only remain for years concealed from
the public, but the professed reporter himself, or the counsel in the
case, may alone be in possession of the decisions, at the risk of their
being used at any moment to contradict the law as universally received
amongst the Profession,

This inconvenience is thus alluded to in the preface to Watkins’
Principles of Conveyancing :—‘‘ Supposing that a person should be so
fortunate as to be able to extract something comprehensible out
of printed contradictions, yet other contradictions may make their
appearance in manuscript, and, overthrowing all his hard-earned
knowledge, remind him once again of the glorious uncertainty of the
law. Is the law of England to depend upon the private note of an
individual and to which an individual can only have access? Isa
judge to say, ‘Lo! I have the law of England on this point in my
pocket: there is a note of the case which contains an exact statement
of the whole facts, and the decision of my Lord A, or my Lord B. upon
them. He wasa great,a very great man: I am bound by his decision:
all you have been reading was erroneous. The printed books are
inaccurate ;—I cannot go into principle. The point is settled by this
case?’ Under such circumstances, who is to know when he is right or
when he is wrong? If conclusions from unquestionable principles are
to be overthrown in the last stage of a suit by private memoranda,
who can hope to become acquainted with the laws of England ?—and
who that retains any portion of rationality would waste his time and
his talents in so fruitless an attempt? Is a paper evidencing the law
of England to be buttoned up in the side pocket of a judge, or to
serve for a mouse to sit upon in the dusty corner of a private library ?
If the law of England is to be deduced from adjudged cases, let the
reports of those adjudged cases be certain, known, and authenticated.”

‘The inconvenience arising from the sudden retiring of law reporters
has been already noticed; the present system, however, enables, and
indeed induces, the publisher of a series of Reports, on finding them
at any time not sufficiently remunerative, to stop the supply, and
leave the notes already collected to serve the purpose which is thus
reprehended ; and hence the cause of those long intervals in the Reports
of some of the Courts.

(1) Sugden’s Law of Property, preface, p. 4.
HISTORY OF «THE LAW REPORTS.” 11

The Reporter, however, under the present system may unavoidably
be absent, or purposely omit cases which he deems not to be authorities ;
and’we have heard of an eminent Nisi Prius reporter preserving in
MS. a whole pile of decisions of a late Chief Justice which he deemed
bad law.

The evils, too, arising from the inaccuracy of some of the existing
reports are often practically felt by the profession. In an article on this
subject in the ‘“ Law Review ” of February, 1848, a long list of instances
(taken from the then last numbers of the several Reports) is given,
where cases solemnly cited and relied on in argument, were denounced
as incorrectly, inaccurately, or falsely reported; and it is a common
thing to hear of a particular report or set of reports, that they are not
of much authority. Hence the suitor, even after he has discovered what
the law is reported to be, may find to his cost that such report, how-
ever authentic in appearance, is inaccurate.

It is but little consolation to say, on the trial of a cause, “ That case
is not law,” after it has misled half the kingdom (1).

The Committee do not wish to say any thing in this place as to the
present style of Law Reporting; still it will hardly be denied that
with few exceptions the volumes of reports are commonly too verbose,
and too open to the reproach of book-making. In a useful article on
Law Reports in a recent number of the “ Law Magazine” (2), a reform of
the existing style of Law Reporting is warmly advocated. “ Instead
of a collection of judicial decisions,” it is observed, “‘ with the facts
necessary to support them, and the grounds upon which they are
made, carefully and briefly set out, we have volumes upon volumes of
reported cases, in which the points important to be known bear but a
small proportion to the mass of useless undigested matter with which
these volumes are filled. The inconveniences of such a system are
evident; instead of having to read through a few pages, and at once
obtaining a clear comprehension of a particular point, we have to
wade through an enormous quantity of matter, which, so far from
throwing additional light upon the subject, confuses by the numerous
doubts and difficulties by which each case is surrounded; the conse-
quence is, we do not obtain that certainty in the law which it should
be the object of reports to accomplish.”

To sum up in a few words the evils and inconveniences of the
existing system of Law Reporting, there is no guarantee afforded to
the public that the judicial exposition of the law will be reported at
all, or reported correctly—or in time to prevent mistakes—or in such
a manner, with respect to conciseness, form, and price, as to be
accessible to those whom it so vitally affects.

(1) Preface to Watkins’ Conveyancing, p. 21, note 10.
(2) No. 16, N. 8. art. 1, p. 1, Aug. 1848.
12 HISTORY OF “THE LAW REPORTS.”

Whilst these various evils of the present system have forced them-
selves upon the attention of your Committee, they have been much
struck by the fact, that the present voluntary outlay of labour, skill,
and money on the part of the legal profession in the shape of Law
Reports, are amply sufficient to secure, under a systematic direction,
all that could be desired in the shape of an authentic series of Reports
to be produced regularly, expeditiously, and cheaply.

There are at this moment upwards of forty barristers of acknow-
ledged skill constantly employed in the preparation of what are
deemed the regular Reports of the decisions in the Courts of West-
minster Hall, the House of Lords, &c. (1), and it is believed there are
an equal number of members of the Bar occupied in reporting for the
various weekly legal periodicals, &c., or occasionally assisting the class
first alluded to; and among these additional reporters are many of
considerable skill and legal acquirements.

The present expense of a complete set of the Reports for the current
year—exclusive of the ephemeral publications, the reports of the
Courts at Doctors’ Commons, and the various classified reports enume-
rated before, as magistrates’ cases, railway cases, election cases, &c.—
amounts to the sum of £30; and estimating the present average cir-
culation of these books at 750, it is obvious that the annual outlay
to the Profession, in purchasing them, amounts to about £22,500; and
if to this sum be added also the outlay of the Profession in the reports
of less circulation, as the Courts at Doctors’ Commons, Irish reports,
election reports, magistrates’ cases, &c., and the weekly periodicals, it
is plain that the expense comes to many thousands more. It would
seem that not more than £9000 is paid to the reporters themselves, and
the remainder is carried to the account of the expenses of printing
and the profits of the publishers and booksellers.

The high price of law books has for years been a common subject
of complaint; and when it is considered what a small proportion of
this price goes into the pocket of the author or compiler, it is remark-
able that the Profession, who are at once the producers and consumers,
should have never yet attempted a remedy.

The commission allowances, &c., to the trade on the sale of books
generally amount to between 30 and 40 per cent., and sometimes even
more, on the cost of a book (2). Thus on a book of Law Reports, on

(1) Viz., the three series of Common Law Reports; the “Law J ournal:” the
Chancery Reports; the House of Lords Reports; the Nisi Prius Reports ; and
the Practice Reports. ;

(2) Mr. Babbage, in his “Economy of Manufactures,” estimates the share
of profits derived by the trade from books sold on an author’s own account as
54 per cent. (p. 261). A less allowance, however, is usual in the law book
trade. This allowance we believe to be as follows:—To the retail dealer 20 per
cent. on Reports and 25 on other books; to the wholesale bookseller 5 per cent.
HISTORY OF “THE LAW REPORTS.” 13

which the smallest allowance is made, if the money is to be accounted
for to the author, first of all 20 per cent. on £2, its nominal price, is
allowed to the retail bookseller; 5 per cent. more, and one copy in
twenty-five, in all 9 per cent., or 3s. 8d., to the wholesale bookseller ;
and 7% per cent. at least, or 3s., by way of commission to printing and
advertisement expenses and the publisher; only £1 5s. 4d. being left
for the remuneration of the author. Hence it obviously requires a
sale of 400 copies of such a work to save the proprietor of the copy-
right from positive loss; and the publishers, relying on this, generally
succeed in getting the copyrights of the Reports into their own
hands.

If in any case a society for the purpose of publishing books were
practicable, it would seem most peculiarly so among the legal pro-
fession.

The “ Law List” of the present year contains the names of about
14,000 practising Barristers, Attorneys, and Solicitors, and this list
would be vastly increased by an addition of the local and colonial
Judges, Magistrates, and Law Officers, and the crowd of students,
articled clerks, &c. preparing themselves for the profession.

To the majority of this numerous class the serious expense of the
Law Reports in their present shape is the principal objection which
prevents their being used.

Now, if instead of the limited average circulation on which the
above calculations are formed, the reports were generally circulated
amongst the Profession—the majority of them, say, for the sake of
round numbers, 10,000—annually contributing to a fund for the
purpose a sum less than it may be assumed they have at present
annually to lay out, it is pretty clear that, instead of £30, the small
annual sum of three pounds would be amply sufficient to secure to each
of the contributors a supply of all the reports even in their present
form: a fact which may be easily rendered intelligible.

The printing and binding of 1000 copies of an ordinary octavo
volume of Law Reports, or even 800 pages, costs about £330, and
every additional 1000 copies about £160; and thus 10,000 copies of
such a work can be produced for about £1760: and if the expenses of
ten series of Reports, at this rate, be added to the sum already esti-
mated as the amount of the reporters’ present remuneration, it will

 

more, and also one copy in twenty-five, or 9 per cent.; and to the publisher
between 74 and 10 per cent. for commission. The principal law publishers
have very recently entered into an arrangement to refuse allowing any book-
sellers besides themselves more than 10 per cent. on retail sales; but it by no
means follows that this deduction is discontinued. In the authors’ accounts all
sales are still credited as made to the principal law booksellers, and at the
wholesale trade prices.

c 2
14 HISTORY OF “THE LAW REPORTS.”

be found that the whole expense of a set of Reports for each Court, as
voluminous as they are at present, would leave a large surplus from
the amount of the small annual contribution suggested.

By a recent regulation in the House of Lords, in accordance with
the practice in France and the United States of America, law reporters
are, at this day, officially appointed. In the American Courts, the
reporters, both in salary and rank, come next after the Attorney-
General of the State.

The general restoration of the old system of official reporters in our
Courts has been often advocated. Our Law Reports would thus be
stamped with some degree of authority, and the unseemly competition
in the avocation of bookmaking, which the present system engenders,
would be got rid of. However this may be, it seems to your Com-
mittee, that were any plan actually in force for the Profession having
the direct control over the publication of the Reports, many other
advantages than mere economy would be gained. The division of
labour between the reporters, when so large a number as that which
we have assumed are employed—and the system and regularity which
this would create—would go far to put an end to many of the evils
which at present exist in law reporting. The quality and not the
quantity of the material would be more studied; and the omission
of a really important decision would be deemed as serious a neglect
in the reporter as an inaccurate report of it.

This Report, though widely circulated among the profession,
and valuable as is the information contained in it, was the fig-tree
full of leaves but shewing no fruit; the suggestions it contained
did not with any distinctness point to an efficient practical
remedy. It suggested, indeed, the setting up a set of Reports
under the control of the Profession, but it did not contain any
scheme for giving effect toa suggestion so valuable and important.
It was theoretical and not practical.

The Law Amendment Society however, being, as is well known,
thoroughly in earnest in what it undertakes, did not allow a
matter of such professional and public interest and importance to
fall through, and therefore took up the subject again in 1853, and
for that purpose again appointed a Special Committee on Law
Reporting, and the following reference was made to that Com-
mittee “to consider what improvement, if any, may be made in
the present system of Law Reporting.”

In due time this Committee made their report.
HISTORY OF “THE LAW REPORTS.” 15

In the labours of the Committee and in the preparation of the
Report the Profession and the public will again gratefully
recognise the services rendered by Mr. Serjeant Pulling.

The same reasons which induced me to print the Report of
1849 in extenso lead me to adopt the same course with this
report of 1853.

SOCIETY FOR PROMOTING THE AMENDMENT OF THE
LAW.

 

Law Reportine Rerorm.
SPECIAL COMMITTEE ON LAW REPORTING.

TuE following reference was made to this Committee :—
“To consider what improvement, if any, may be made in the present
system of Law Reporting.”

REPORT.—1853.

1. In the year 1849 a Committee on Law Reporting was appointed
by this Society, and in the Report (1) of that Committee the ancient
regulations for making known the Law laid down by the Judges in
Westminster Hall are discussed at length, and the evils which arise
from the absence of any such regulations at the present time are forci-
bly pointed out; there being, as the Committee then observed, no
guarantee now afforded to the public that the exposition of the Law
by the Judges of the land will be reported at all, or reported correctly,
or in time to prevent mistakes, or in such a manner with respect to
conciseness, form, and price, as to be accessible to all those whom it
so vitally affects.

2. The Report in question was fully considered in this Society, and
was widely circulated in the Legal Profession, amongst the members
of which it attracted considerable attention; but though, as your
Committee believe, the recommendations then made for the reform of
the present system of Law Reporting met with general acquiescence
from those who are professionally conversant with the Law Reports at
present in use in Westminster Hall, no steps have yet been taken to
remedy the serious evils and inconveniences complained of.

8. Your Committee having, in accordance with the reference now
made to them, reconsidered our system of Law Reporting, entirely

(1) Printed, 10 Law Review, p. 397.
16 HISTORY OF “THE LAW REPORTS.”

agree with the former Committee in denouncing it as defective and
pernicious, both positively, as respects the mode of making known the
exposition of the Law of the land in Westminster Hall, and compara-
tively, as regards the older practice which prevailed several centuries
ago; when the Crown appointed official Reporters of legal decisions
by letters patent, and the practice adopted in the present time in the
United States of America (1), where the office of State Reporter is
regulated by general law (2).

4. Bearing in mind always that the exposition of the general prin-
ciples of the Law by the Judges in Westminster Hall for the most part
equally affects the subject with the Law positively enacted by the
Legislature,—that the Law of Property, real and personal, in this
country, is for the most part governed by precedents,—and that our
comprehensive system of commercial law has been entirely moulded
into its present form from the Judicial Bench, the contrast between
the practice of promulgating the Law enacted by the Legislature and
that which is from time to time expounded by our Judges is very
remarkable.

5. The authority of a judicial decision of the Courts of Westminster
Hall in practice, at least, equals that of an Act of the Supreme Legis-
lature. It is, until overruled, binding on all the inferior judges and
magistrates of the land, affects the title to property and the conduct
of commercial transactions, and generally controls the administration
of justice. It can be upset only by the decision of a Court of Error,
or the direct interposition of Parliament.

Judicial precedents are, therefore, to use the language of Bentham,
Judge-made laws, and, when long acted upon, become of equal force
with the express enactments of the Legislature (3); and if it is the
duty of the State to make the Law of the land universally known,
there can be no reason why the publication of the Law declared from
the Bench should be less formal and less complete than that of the Law
declared by the Legislature.

6. In the previous Report made to the Society on this subject it
was shewn how the disuse of the ancient practice which prevailed in

(1) The office of State Reporter in the United States was first established by
a special statute in 1817 (Statutes at Large of the United States, 1817, Sess. 2.
c. 63, providing “for reports of the decisions of the Supreme Courts”) and
regulated by a variety of subsequent statutes. (Id. ib. 1820, 1823, 1827, and
Sess. 2 of 1842, cap. 264.)

(2) The duties pertaining to the office form the subject of a distinct chapter
in the Code of Civil Procedure of New York. (Code of Civil Procedure of New
York, c. 8, tit. 4, ¢. 3, sec. 369-372. pa. 155.)

(3) See on this point, Vin. Abr. Precedents, B. 15; Vaughan v. Mansel,
Hardress, p. 67; 2 Lilly’s Abridgment, p. 344; Tate v. Windnam, Cro. Eliz. 65.
HISTORY OF “THE LAW REPORTS.” 17

Westminster Hall, of the Law expounded by the Judges being pub-
lished officially in the Year-books, and subsequently by Reporters
expressly authorized for the purpose, has led to the inconveniences
which are now experienced by those who are officially or professionally
engaged in the practice of the Law in immediately ascertaining what
the Law laid down by the Judges of the land is.

7. There is, at present, it must be remembered, no class of persons
officially authorized or required to report the decisions of our Courts
at all; no limit to the accumulation of publications professing to
report those decisions; no time prescribed at which they must make
their appearance—a week, a month, a year, or a quarter of a cen-
tury (1),—from the time when the Law has been expounded; and
even when the Reports have been thus compiled, there is not only an
absence of convenience for making them generally known to the local
judges, magistrates, and official and professional persons who have to
dispense the Law throughout the empire, but the high prices charged
by the law booksellers tend to confine the use of the higher class of
Reports to a very small number of professional subscribers ; and local
judges, magistrates, and professional Jawyers are every day exposed
to the inconvenience of having cited, by way of authority, notes of
decisions of the Judges at Westminster Hall, contained in legal
publications which, more or less, partake of the character of mere
newspapers.

8. Your Committee have had their attention directed to the subject
of the great labour and expense at present voluntarily incurred by the
Legal Profession in the preparation of Law Reports, and entirely
acquiesce in the opinion of the former Committee of this Society, that
by a far less expenditure of both labour and money on the part of the
Profession, Reports equal at least in material, much more regularly
and expeditiously prepared, and more comprehensive than the present
books of Reports, might, by a proper system of management, be pub-
lished at such a cost as to be made accessible to every one connected
with the administration of justice throughout the British dominions ;
in other words, that by a trifling individual contribution from
one half the persons who officially or professionally require the use
of Law Reports, the annual expenses of reporting would be amply

(1) In the valuable work published by Lord St. Leonards in the year 1849,
are contained for the first time notes of cases decided by the House of Lords
between 1821 and 1826. See preface to Sugden’s Law of Property, as adminis-
tered by the House of Lords, p. iv.

West’s Reports of Lord Hardwicke’s decisions from 1736 to 1739 were first
published in 1828. Ridgway’s Reports of Lord Hardwicke’s earlier decisions
were first published in 1794, whilst Sir Orlando Bridgman’s judgments in the
reign of Charles II. never appeared in print until 1823.
18 HISTORY OF “THE LAW REPORTS.”

provided for, adequate remuneration being afforded for the Reporters,
and ample funds left for the expenses of printing and publishing.

9. The Legal Profession, which in England alone includes more
than 12,000 members, it is proved do actually, at present, at least,
expend among them upwards of £25,000 per annum in the purchase
of Reports; and whilst this large expenditure has been shewn to be
amply sufficient to secure to the public the services of the greater
number and certainly of the best of the Reporters in an official capa-
city, and the supply of copies of the Reports to every single member
of the Profession, and to every Court of Justice in the empire, the
absence at present of proper regulations as to the mode and cost of
publication causes a useless expenditure of both labour and money ;
there being often half a dozen versions of the report of the same case,
and several series of Reports generally published. And as the highest
class of Reports (that is, the Reports of the highest authority) are
used only by about one-twelfth of the members of the Profession, they
become almost unknown in our Colonial Courts, and inaccessible in
the majority of Local Courts in this country, and, generally speaking,
even at the Assizes and at Quarter Sessions.

10. To effect a combined action on the part of the large number of
gentlemen at present engaged in law reporting; to prevent a variety
of printed versions of the same case ; to make the books of Reports
contain all judicial decisions by which the future administration of
justice is effected, and these only; to avoid mere book-making, and to
insure at once expedition, accuracy, completeness, and cheapness in
the Reports, has long been a desideratum in the Profession, and of
late years various plans have been proposed in order to attain it.

11. The plan of a voluntary association has been suggested among
the Reporters, and those who professionally use the Reports; and it
has been urged, that inasmuch as the Profession of the Law composes
at once those who frame the Reports and those who use them,—in
fact, the producers and consumers,—its members are directly con-
cerned in the success of such an association, and ought to establish it
without adventitious aid: but when the difficulties are considered of
inducing a sufficient number of individuals to act in unison, and
gratuitously incur the responsibility of so comprehensive an under-
taking, and how many conflicting interests would then have to be
dealt -with,—your Committee have arrived at the conclusion that
nothing short of an authorized Board invested with the power of
superintending the Reports in our several Courts, and regulating the
time, mode, aud expense of publication, will effectually cure the evils
now so loudly complained of, ‘

12. A voluntary Society consisting of a less number than 5000
subscribers would not be able to effectually publish Reports of such a
HISTORY OF “THE LAW REPORTS.” 19

cost as to destroy competition, and the result of the attempt would
possibly be to add merely to the existing evils caused by rival series
of contemporaneous Reports, and even were the majority of the
present Reporters to join such a Society, the series of Reports hitherto
conducted by them, might still be conducted by other hands.

13. Were a competent Board, however, invested with the power of
officially publishing the Reports at a small price out of a fund placed
at their disposal, there would be no difficulty, it is apprehended, in
inducing the best of the present Reporters to concur; for an arrange-
ment could thus easily be effected for making their remuneration at
least equal to that which they at present receive, and affording them
material advantages in other respects; and the cost to subscribers
could at once be fixed at such a sum as to effectually destroy com-
petition, and not only to secure the adherence of all those who at
present annually pay for the Reports, but of a large number of
other parties who are now precluded on the score of economy from
doing so.

14. Taking the supposed minimum annual expenditure of each
working member of the Profession in the purchase of Law Reports
at the present time at £3, it has appeared to your Committee hardly
possible for a Board which should publish authorized Reports of all
the decisions of our Courts, not to be self-supporting; and your
Committee feel, therefore, that no difficulty can be anticipated in a
financial point of view, in procuring the authentic publication of the
Reports of the decisions of our Courts in such a form as to make
them accessible to every individual engaged in the administration
of the law.

15. Your Committee have, however, already pointed out that it is
the duty of the State to undertake the work. The statutes at large
have from the time of the first invention of printing been published
under a formal arrangement with the State. The Houses of Parlia-
ment annually print and publish, at the public cost, waggon loads of
books and papers which are for the most part necessarily of far less
importance to the subject than the Reports of judicial decisions, ex-
pounding the Law of the land; and considering the number of local
judges and magistrates who are now invested with the duties of
dispensing the Law in this country, and the extent of our colonies,
where the decisions of the Courts at Westminster Hall are professedly
followed, it is hardly too much to expect that every Court of Justice
throughout the empire should at least have authentic volumes of the
Law provided at the public cost.

16. Now whilst the publication of Parliamentary proceedings is
productive of great expense to the State, which the sale of copies
to private individuals very slightly diminishes, it is proved beyond a
20 HISTORY OF “THE LAW REPORTS.”

doubt that the present very limited sale of Law Reports does actually
realise a much larger sum than would be required to cover the whole
expense of publishing ten times the number of copies under an im-
proved system. The statistics collected in the Report of the Com-
mittee of this Society in 1849 fully justified the belief, that were
complete Reports of the decisions of the Courts published officially at
at a tenth of their present cost,—say at £3 per annum instead of
£30,—there would at least be ten times the present number of sub-
scribers (1); and your Committee must add, that this very circumstance
shews that the duty of publishing authentic Reports of the decisions
of our Courts at Westminster is one which there is the less excuse to the
State for neglecting, when it is considered that in thus discharging
an imperative obligation connected with the administration of justice
the Government would hardly incur the smallest risk of expense. As
the establishment of regulations for securing the proper preparation
and speedy publication of our Law Reports in an authentic form by a
public Board so as to ensure their voluntary adoption is then free from
the difficulties which surround private undertakings, and is proved to
be practicable, your Committee submit to this Society the following
plan for effecting the objects in view.

17. Your Committee suggest that a permanent Board composed
of Commissioners should be appointed by the Crown for the
purpose of supervising and editing the Reports of judicial decisions.

18. That the Board should, subject to the sanction of the presiding
Judges in their respective Courts, select a sufficient number of com-
petent Reporters for each of the Superior Courts, to rank and be
remunerated according to seniority of appointment; and that the
cases collected from time to time by such authorized reporters should
be printed and published by the Board at regular intervals as soon as
practicable after the decisions are pronounced.

19. That an office should be provided to which all reports of cases
should be sent in order to be submitted to the Board, and after the
Reports are printed they should be sold by the Board at the smallest
practicable rate to the public, a sufficient number of the Reports
being supplied gratis to every Assize Court and every Local Court in
the country for official reference.

(1) The aggregate number of subscriptions to the several Reports now pub-
lished by the booksellers can hardly be estimated at less than 15,000; but
assuming that a great many gentlemen subscribe to several series of Reports at
the same time, the number of distinct individuals who contribute to the expense
of these Reports may, at the least, be estimated at 5000; and then, applying
the same mode of calculation to the other Reports, such as “The Law Journal,”
“The Jurist,” “The Law Times,” “The Law Reporter,” “The Justice of the

Peace,” “The Legal Observer,” &c., there will at least be found 5000 more
distinct subscribers to these publications.
HISTORY OF “THE LAW REPORTS.” 21

20. That Government should advance a sufficient sum to the Board
in the first instance to meet the expenses, and out of the Funds
collected by the Board by the sale of the Reports should be paid the
salaries of the Reporters and the general expenses of the Board, and
tha remainder applied in repaying whatever had been entrusted to
them by the Government: and at the end of each year a Debtor and
Creditor account should be made out and submitted to the Treasury,
shewing the various items of expenditure, and shewing the receipts
of the Board in the execution of their trust—the Treasury having
power to certify that the charge for copies of the Reports ought to be
reduced in case any considerable surplus remained after paying all the
expenses of the Board, and of preparing, printing, and publishing
the Reports.

21. To avoid as far as possible personal bias in the selection of
Reporters, your Committee suggest that a graduated scale of remune-
ration should be established, and the Gentlemen entitled to the higher
rate of remuneration should be those only who had been before engaged
in the duties of reporting, every newly appointed Reporter ranking as
the junior for the time being with the smallest rate of remuneration.
Your Committee further suggest, that the Board should hear com-
plaints made against the Reporters on the score of dilatoriness, inac-
curacy, or incompleteness of their Reports, and that on sufficient
ground of complaint being satisfactorily made out and certified to the
Judges, the defaulting Reporter should be removed or suspended, and
succeeded by the Gentleman next in seniority.

A sufficient staff of competent Reporters being appointed by each
Court, and the speedy publication of the Reports in an authentic
form being secured at a small cost, your Committee believe that each
decision would be authentically reported as soon as it was necessary
to quote it; but your Committee suggest that where the decision
required to be referred to should be so recent as to render it imprac-
ticable to publish it, a certified note of it from the authorized Reporter
should be required by the Judge, and given by the Board for a
reasonable fee.

This Report, in paragraphs 11, 12, 18, 15, 17, 18, 19, 20, 21, and
22, distinctly raises the issue between the preference of a set of
Reports on the Voluntary System as suggested by the Report of
1849, and a set of Reports supported by authority according to
the scheme there shadowed forth.

It will be seen at once that there is a radical difference between
the two systems. The Voluntary System was rejected, and the
22 HISTORY OF “THE LAW REPORTS.”

State-aided System recommended for adoption, but it failed to
obtain any support from the Government.

In November, 1854, “ The Jurist” advocated the establishment
of an authorized staff of Reporters for the future, and offered, if
such a reform were established on a sound basis, to retire and
seek some other form of existence (see “ Jurist,” 11th November,
1854).

In May, 1855, “ The Law Magazine” proposed as a remedy the
establishment by Act of Parliament of a staff of authorized
Reporters, but limited to the Common Law Courts :—a proposal,
which, as might be expected, came to nothing.

In the same year, 1855, Mr. W. Ewart, M.P. for Dumfries, and
a Member of the Law Amendment Society, gave notice in the
House of Commons of a motion for the appointment of a Select
Committee to inquire into the expediency of appointing author-
ized Reporters in the Courts of Law; but the motion was not
made, and of course dropped.

In 1858, at the Social Science Congress, held at Liverpool, the
Right Honorable Joseph Napier (then Lord Chancellor of
Ireland) in his address as President of the Jurisprudence Depart-
ment, suggested that judicial decisions should be authenticated,
and with that view should be reported by responsible officers and
published under responsible authority.

In 1862 the late Mr. George Sweet (a conveyancer of estab-
lished reputation) on the 10th of February of that year read a
paper before the Juridical Society, in which he advocated the
appointment of a Chief Reporter, with two or more salaried assist-
ants for each Court, and expressed his opinion that a sufficient
sum might be raised by sale of such reports to defray expenses—
in other words that such reports would be self-supporting.

In the early part of 1863 my attention was frequently called
to the great unwillingness of the Equity Judges to listen to
ephemeral reports of cases and to short-hand writers’ notes. Lord
Justice Knight Bruce on one occasion, in my hearing, protested
against the practice of reporting whatever happened to fall from
the Judges and the practice of citing that as an authority. His
Lordship more than once in my hearing distinguished between
HISTORY OF «THE LAW REPORTS.” 23

the érrea wrepoevta and the érea ypucea of the Judge, and insisted
that nothing should be cited as authority but that which the
Judge had deliberately made the ground of his decision, and his
Lordship frequently referred to Lord Coke’s observations on
Reports and Reporters.

The effect produced on my mind by these frequently expressed
views of that great Judge led me to consider whether it would be
practicable, through the agency of the Bar, to devise a scheme —
for the establishment of a set of Reports which should be inde-
pendent of all Government assistance, be managed by the Bar—
be accepted by the Judges, and be self-supporting, and thus
practically to apply in principle the suggestion contained in the
Report of 1849, and which had been rejected in the Report of 1853.

The idea was vague and in nubibus; but under its influence,
and in the hope of getting such assistance from the Bar as would
give it a practical shape, I prepared, procured to be printed, and
circulated privately among the Bar a paper of which the following
is a copy.

SUGGESTIONS FOR AN ALTERATION in the present SYSTEM OF
Law Rerorrine submitted for the CONSIDERATION OF THE
Bar, by W. T. 8. DanteEt, Q.C.

THE present system of Law Reporting is the subject of very general
and well-founded complaint on the part as well of the Judges as of all
classes of practitioners. The evils complained of are various; but the
following may be regarded as the chief :—

1. Confusion and uncertainty in the law, producing perplexity in
the administration of justice; this arises sometimes from the practice
of indiscriminately reporting cases without reference to the import-
ance or character of the decisions—sometimes from the reports con-
taining an inaccurate or imperfect statement of the facts on which
the decisions are founded.

2. The difficulty of digesting the enormous mass of constantly
accumulating materials and distinguishing the good from the bad.

3. The expense to the practitioner arising from the necessity of
possessing himself of the several series of contemporaneous reports in
that branch of the profession in which he practises.

All these evils, it is obvious, are attributable to one cause :—The
multiplication of contemporaneous Reports. This multiplication has
arisen from applying the principle of competition to correct the evils
24 HISTORY OF «THE LAW REPORTS.”

of prolixity, delay, and expense incident to the system of authorized
reporting. The evils of prolixity and delay have to a great extent
been cured; but the evil of expense has been aggravated, and new
evils created, namely, confusion and uncertainty in the law producing
perplexity in the administration of justice.

Everybody is calling out fora remedy. Some say, before anything
is done let there be inquiry, and to that end pray the Lord Chancellor
to issue a Royal Commission. To these I respectfully answer, the
evil is felt and admitted, and the cause is patent. The stage of
inquiry is passed. What is wanted is a remedy, and experience pro-
claims that a Royal Commission can only report the evil, and suggest,
put not provide, the remedy. Others say, the decisions of the Judges
are the expositions of the law ex non scripto, and it is as much the
duty of the State to promulgate to the public this branch of the law,
as it is its duty to promulgate the lex ex scripto—to publish the
Statutes; and therefure say they, let Government be applied to for
a grant to start the publication and guarantee it against loss. To
these, I with equal respect answer ;—Government assistance would
imply Government control; and this would involve the evils of an
assumption of patronage and an attempt at privilege—thus bringing
round again the evils of a monopoly to be again corrected by the
equivalent evils of uncontrolled competition. I venture to suggest
that without either a Royal Commission or a Government Grant it is
within the power of the Bar to supply an adequate remedy.

I recognise and base my suggestions upon the principle, that the
proper preparation and publication of those judicial decisions, which
are expositions of the law ex non scripto, is a public duty, and that the
public have aright to expect that it will be discharged by a recognised
body in the State qualified for the purpose. The qualifications of
such a body should be—Independence of the Government, Co-opera-
tion with, but not Dependence upon, the Judicature, Adequate know-
ledge of the law and Experience in the practice of the Courts, combined
with special skill and experience in the art of reporting. These
several qualifications are possessed in the highest degree by the Bar,
and by no other body of men—and the Bar form a recognised body
in the State—Why should they not combine and undertake the duty ?
My proposal is that they should :—and for that purpose I suggest that
the Members of the Bar now engaged in reporting, or such of them as
should think proper, together with any other Members of the Bar who
may offer acceptable services or co-operation, should form themselves
into a body of Associated Reporters, and by means of a proper system
of division of labour and editorial superintendence, undertake the
preparation and publication in weekly numbers, at a moderate charge,
of the decisions of all the superior Courts of Law and Equity. including
HISTORY OF “THE LAW REPORTS.” 25

the Probate and Divorce Courts, the Admiralty Court, and the House
of Lords, and Privy Council.

If this were well done, my expectation is, that the profession and
the public would thankfully accept the publication as a sufficient
record of all the decisions in Courts of Justice which they desire to
possess, and that the demand on the part of the public for contempo-
raneous publications of the same decisions would greatly diminish, and
in time cease. The demand for the one publication would then be
increased to an extent much beyond that which is enjoyed by any
of the existing publications ; and thus far the advantages of a mono-
poly would be secured without its evils. The reporting which suffices
for Newspapers would of course not be interfered with.

If the public and profession were thus satisfied by an early, efficient
and cheap publication of all the Reports, the Judges would, I think,
soon find that, on the ground of public benefit, it would be expedient
and desirable not to allow any other Reports to be cited as authority
before them; and thus the advantages of a system of authorized
Reports would be secured without its evils. The entire success of the
plan rests, it will be seen, upon the sustained combination of expedi-
tion, efficiency, and cheapness.

Do vested interests stand in the way? Let it be remembered that
inasmuch as all the Reports now cited in the Courts are supplied by
Barristers, vested interests in the existing publications rest for their
support upon the skill and labour of the Bar. To the extent to which
that skill and labour are now adequately remunerated, and the vested
interest is no more than a legitimate commercial profit, the plan I
propose would, I think, provide means for fairly dealing with such
vested interests. If there are any vested interests which arise from
profits of commercial undertakings in which the labours of the Bar
are inadequately remunerated, all such vested interests would properly
be left to take care of themselves.

Ts Capital a difficulty? I imagine the existing publishers would
see their interest in promoting rather than in opposing the scheme,
for I doubt whether the present unrestrained competition does not
produce its evils to them as well as others. I should, therefore, if
the Bar entertained my plan, suggest that the publishers be approached
with proposals which should involve fair participation in profits,
based upon the principle that the publishers should be agents not
principals—in short, that the copyright should be considered as the
property of the body of Associated Reporters. If the publishers
declined to co-operate, I would try a subscription list by applica-
tion to the Judges, and the several members of both branches of the
profession, and with strong hopes of success. A good subscription
list would, I doubt not, be a sufficient inducement to a printer of
26 HISTORY OF “THE LAW REPORTS.”

established reputation and sufficient capital, to run a fair share of the
risk.

The details of the plan I do not enter upon—my present object is
to know whether my brethen of the Bar think the plan feasible and
would be willing to aid in carrying it into execution. I am anxious
to collect their opinions, and shall be obliged by any answer with
which I may be favoured to this communication.

If I find that these suggestions are favourably received, I should
then desire to obtain the co-operation of those who would be willing
to be coadjutators, with a view to maturing a plan for commencing
next Michaelmas Term.

10, Old Buildings, Lincoln’s Inn,
18th May, 1863.

Slightly deviating from the chronological order which I had
prescribed for myself, I will here state that this paper at once
attracted attention, and, by some means unknown to me, a copy of
it was printed in “ The Jurist” of the 6th of June, 1863. On the
12th of June the Lord Chancellor Westbury made his celebrated
speech in the House of Lords on the Statute Law, in which he
also described in striking language the confusion in which the
Case Law stood, but his Lordship did not suggest any remedy
beyond what he proposed to be applied to the Statute Law.

Shortly after the delivery of this speech a deputation from the
Law Amendment Society, which I joined by invitation, waited
upon Lord Westbury, at Westminster, for the purpose of solicit-
ing his Lordship to obtain the assistance of Government in
establishing a set of Law Reports, which should be authentic—
referring his Lordship to the Report of 1853—Lord Westbury
regretted his inability to interfere, and humourously reminded
the deputation of the fable of the Waggoner appealing to Jupiter
to help him to get his waggon out of the ruts, and added, report-
ing is a privilege of the Bar, and the Bar must devise whatever
remedy is required.

The paper of the 18th of May was thus left to work its way ;
and it did so in the manner which will appear in the second
division of this History.
HISTORY OF “THE LAW REPORTS.” 27

SECOND DIVISION.

The steps taken after the 18th of May, 1868, and up to the 2nd of
December, 1863, the day on which the first meeting of the Bar
was held.

THE circulation of the paper of the 18th of May, 1863, among
the Bar at Lincoln’s Inn produced in a very short time results
far beyond my most sanguine expectations. I received expres-
sions of approval from members of the Inner Bar, the rising
juniors of the outer Bar, and all the leading Conveyancers, among
whom I would especially mention the late Vice-Chancellor, Sir
Charles Hall, and among the then rising juniors of the outer Bar
I would mention the present Lord Justice Lindley. Mr. Lindley,
as I must then call him, took the trouble to prepare and send me
a scheme for a set of Reports which he authorized me to make
whatever use of I pleased, and I did so, as will hereafter appear,
I also ascertained that my suggestions were favourably regarded
by all the Equity Judges sitting in Lincoln’s Inn,—the Lords
Justices Knight Bruce and Turner, and the Vice-Chancellors
Kindersley, Stuart, and Wood (afterwards Lord Hatherley).
Under these circumstances I felt myself bound to consider how I
could turn to the best account the encouragement thus unexpec-
tedly given to my crude suggestions. And it occurred to me to
apply to the then Solicitor-General, Sir Roundell Palmer, as the
acknowledged leader, the facile princeps, of the Equity Bar, for
his consent to allow me to address a letter to him in that character,
in which I might deal with the evils of Law Reporting generally,
and foreshadow my notions of a remedy. Sir Roundell kindly
gave me his consent, but without in any manner lending the
authority of his sanction or approval to the contents of any letter
I might write. Thus authorized I prepared and published on
the 12th of September, 1863, a letter addressed to Sir Roundell
Palmer, accompanied by a print, with Mr. Lindley’s consent, of
his paper before referred to. That letter and paper I here reprint
as evidence of the first fruits of professional opinion uninfluenced

by external authority.
D
28 HISTORY OF “THE LAW REPORTS.”

A Letter fo Sir Rovunpern Pater, Knr., M.P., HER
Masssty’s Souiciror-GENERAL, on the PRESENT SYSTEM
or Law Reportine, Irs Evits, anp THE Remepy. By
W. T. 8S. Danrez, Q.C.

Sir,

I propose to address to you, as an acknowledged leader of the Bar,
and through you to the Profession at large, and the public generally,
some observations upon the present system of Law Reporting,—
directed to an exposition of its evils and the causes to which they are
attributable, followed by the suggestion of a remedy.

The system of Law Reporting to which my observations are in-
tended to apply, is that which consists in the preparation and publi-
tion of those reports of judicial decisions in the Superior Courts of
Law and Equity and the Appellate Courts,—which, from the authority
attached tv them as precedents, constitute, in the language of Sir
Matthew Hale, “the formal constituents of the Common Law,” and
are spoken of by Sir W. Blackstone as “the evidence of the un-
written law.”

If there be any value in the observations which I am about to
offer,—any advantage to arise from them either to the profession or
the public,—it must be looked for in the Remedy which I propose.
The evils of the system of Law Reporting, as it has existed for many
years and now exists, have been felt and deplored by Judges, by
Jurists, and by Lawyers of every grade; the difficulty has always
been to provide an efficient remedy. That which I shall venture to
propose is radical, it will go to the uprooting of the present system,
and laying the foundations anew; it may be expected to cause an
extensive interference with and a partial subversion of existing
interests, and be open to the objection that it is an untried experi-
ment. The fact, however, that the evils to be redressed are grievous,
and of long standing,—and, as proved by experience, that the expe-
dients hitherto adopted have not only been unavailing as remedies,
but, as regards some of them, have even served to increase the
number and intensity of the mischiefs they were intended to remove,
—will at least excuse the attempt to start a new idea upon the sub-
ject, and perhaps tend to allay some of those feelings of distrust and
dislike which instinctively arise when Novelty is sought to be applied
to the alteration of an existing system.

I propose to consider the subject in these three points of view :—
First, What a proper system of Law Reporting ought to be. Second,
What our present system is. Third, How the system may be made
what it ought to be.

J What a proper system of Law Reporting ought to be.
HISTORY OF “THE LAW REPORTS.” 29

The nature and object of Reports of judicial decisions are nowhere
better defined and explained than in the preface to Douglas’s Reports,
from which I extract the following :—

“The immediate province of Courts of Justice is to administer the law in
particular cases. But it is equally a branch of their duty, and one of still
greater importance to the community, to expound the law they administer upon
such principles of argument and construction as may furnish rules which shall
govern in all similar or analogous cases.

“Such are the various modifications of which property is susceptible, so
boundless the diversity of relations which may arise in civil life, so infinite the
possible combination of events and circumstances, that they elude the power
of enumeration, and are beyond the reach of human foresight. A moment’s
reflection, therefore, serves to evince that it will be impossible, by positive and
direct legislative authority, specially to provide for every particular case which
may happen.

“ Hence it has been found expedient to entrust to the wisdom and experience
of Judges the power of deducing from the more general propositions of the law
such necessary corollaries as shall appear, though not expressed in words, to be
within their intent and meaning.

“Deductions thus formed, and established in the adjudication of patiiodler
cases, become, in a manner, part of the text of the law. Succeeding Judges
receive them as such, and, in general, consider themselves as bound to adhere to
them no less strictly than to the express dictates of the Legislature.

“But, whether a certain decision was ever pronounced, and if it was, what
were the reasons and principles upon which it was founded, are matters of fuct,
to be ascertained and authenticated, as all other facts are, by evidence.

‘“‘ Whether a particular act was done, or contract entered into by a party toa
cause, or not, can only affect him and his opponent, or at most, those who

become their representatives; and should that be pronounced to have happened
which in truth never did, third persons would not be injured. But whether a
judgment alleged to have been delivered, was really delivered, and upon the
alleged reasons, may affect all persons who are or shall be in circumstances
similar to those of the parties in that cause; yet it has somehow or other happened
that little or no care has been taken, nor any provisions made, to render the evidence
of judicial proceedings certain and authentic.

“The records of the Court are indeed framed in such a manner as to constitute
indisputable documents of such parts of the proceedings as are comprised in
them, but it is easy to show that this goes but a very little way.

“Jn the first place, the authority of a decision, for obvious reasons, is held
to be next to nothing if it passes sub stlentio, without argument at the Bar or
by the Court; and it is impossible from the record of a judgment to discover
whether the case was solemnly decided or not. Records, therefore, even when
they contain a sufficient state of the case, do not afford complete evidence of
what is requisite to the future authority of the decision.

“ But, in the second place, it is well known in how few instances the material
parts of the state of the case can be gathered from the record. According to
the modern usage, by far the greater number of the important questions
agitated in the Courts of Law come before them upon motions for new trials,
cases reserved, or summary applications of different sorts. In none of those
instances does the record furnish the evidence even of the facts; for which, in

pd 2
30 HISTORY OF “THE LAW REPORTS.”

such cases, there is no other repository, nor for the argument and reasoning of
the counsel and the Court in any case, but the collections made by Reporters.
On their fidelity and accuracy, therefore, the evidence of a very great part of the
Law of England almost entirely depends.”

And I would refer to the same preface for a succinct history of Law
Reporting from the earliest times, down to the reign of William IITI.,
at which period the system of reporting by private individuals
without official or judicial authority may be considered to have
commenced.

Our system of jurisprudence being compounded of the written and
unwritten law,—the lex ex scripto, and the lex ex non scripto,—the one
to be found in the Acts of the Legislature, the other in the judicial
decisions of our Superior Courts of Law and Equity, and Certainty
being, in theory at least, an object aimed at in both branches of the
law, it would seem to follow, almost as a self-evident proposition, that
it is as essential to the interests of the community that the judicial
decisions of our Courts,—from which the terms of the unwritten law
are to be collected, should be prepared and promulgated with a care
and authority not less than those which are bestowed upon the prepa-
ration and promulgation of the Acts of the Legislature,—wherein are
to be found the provisions of the written law. The proposition is
doubtless as true as it is self-evident; the difficulty lies, and has
always lain, in determining the manner in which a proper Record or
Report of those judicial decisions shall be prepared and promulgated,
so as to be at once accurate and authentic,—a difficulty which, after
many years of experience, still remains but imperfectly surmounted.

Suppose the question could now be considered as res integra, as a
matter not to be affected by the short-comings of our practice and ex-
perience hitherto, what should we say ought to be the characteristics
of a system which proposes to furnish the proper evidence of the un-
written law? May we not take as our guide, to the extent at least to
which the two cases are parallel, the characteristics of the system
by which the written law is evidenced? If we do this, we find at
starting that both are in their nature records,—the one as much as
the other,—to be resorted to as evidence of a fact, namely, what the
law is, Now, is it not of the very essence of a record, that it be
authentic? This characteristic authenticity is universally identified
with the acts of the Legislature. ‘he contrary notion involves an
absurdity which brings conviction to the mind the moment it is
suggested. The reductio ad absurdum argument has been facetiously
put thus:

“Conceive the absurdity of permitting the suggestion by the claimant of an
estate, that there must be some mistake in the engrossment of the Statute of
Limitations; or a convicted housebreaker contending that the legislature could

 
HISTORY OF “THE LAW REPORTS.” 31

not have meant that the offence of burglary should be punished with transporta-
tion for life.” —See “ Law Review,” vol. vii., p. 234.

Now, the absurdity, though not so striking, is equally great in
principle when we suggest a want of authenticity in the reports of
judicial decisions, treated as records of the unwritten law. But why
is the absurdity not so striking in the one case as in the other? Is
not the reason this? That having for so many years,—throughout in
fact, the whole period of the individual experience of every living
lawyer,—been enured to this want of authenticity in our reports,
we have heen so accustomed to submit unresistingly to the evil, that
we have lost sight, if not of its existence, at least of its origin and
cause, and treading without any independent thought or judgment of
our own in the beaten track of precedent,—doing as our forefathers
did because, and only because, they did it,—we have contented ourselves
with endeavouring to modify the mischiefs of which we have been
sensible, by explanations, and distinctions, and doubtings, now and
then by nice balancings, sometimes by absolute contradictions: thus
in reality increasing the evils of uncertainty and confusion for the
future— parrying the effect instead of striking at the cause—follow-
ing the disease through its symptoms, not tracing it to its origin—
adopting palliatives instead of remedies. The Lord Chancellor, in
his recent speech in the House of Lords on the Revision of the Law,
speaks of—

“The blunted sensibility of lawyers to the evils with which they have long
been familiar.”’—Macq. Ed., p. 4.

Pursuing the same parallel, the next characteristic in a report
should be singleness or unity. ‘Two records of the same fact (and what
the law is on a given subject, is a fact of which the record, whether
Act of Parliament or Report of a Judicial Decision, is the evidence)
would be an anomaly. If the two records substantially agree, one is
unnecessary—if they materially differ, one must be wrong. It may,
however, with some plausibility be said that two different minds
might report a judicial decision in two different ways, so that the
Judge whose decision it is might not be unwilling to adopt either;
and that from the combined labours of different and independent
minds you have a better chance of obtaining a more certainly accurate
result. This may be theoretically true; but we are dealing with
sound theory as applied to the real business of life, and must not be
carried away by the allurement of abstract perfection. The question
for solution is, whether, if proper means can be taken to secure reason-
able accuracy in the preparation of the report, the advantages of
Certainty arising from authenticity and singleness will not in the de-
cisive majority of cases outweigh any advantages thit would be likely
32 HISTORY OF “THE LAW REPORTS.”

to arise in a few special cases from adopting the opposite course.
Putting out of sight for the moment the evil of expense and the other
evils which experience has shewn to be incident to a multiplication of
reports, the importance of Certainty should I think decide the question
in favour of authenticity and singleness. Stare decisis rests for its
foundation upon the desire for Certainty in the law, and in the sources
from which it is to be drawn. Misera est servitus ubi jus vagum. The
want of Certainty in the unwritten law of this country is the great
defect in our Jurisprudence. It is this which too frequently enlarges
the limits and obscures the boundaries of judicial discretion, producing
an evil sometimes embarrassing to the Judge, frequently perplexing
to the Advocate, and always injurious to the Suitor.

Again, consider the nature of the thing itself. A Report of a
judicial decision may be likened to a Portrait; it is, or ought to be,
a truthful representation of a matter of fact. There may, no doubt,
be different degrees of skill exhibited in the preparation of the
picture ; it is not, however, a work of imagination : a Report affords
no scope for displaying the arts of rhetoric; it ought to be a con-
densed but correct statement, so far as necessary to elucidate the point
decided, of the issues of fact and law, the material allegations necessary
to raise the one and the other, the arguments on each side, and the
grounds and reasons of the judgment. This duty requires skill,
learning, and experience for its proper performance; but, once pro-
perly performed, the nature of the thing precludes the necessity for
repetition. Any difference that may be introduced into the simple
elements of which a Report should be thus compounded can only lead
to confusion and uncertainty, and therefore ought to be rejected.

The next characteristic of a Report is Accuracy, by which I don’t
mean ideal, absolute accuracy, nor that degree of accuracy which
would not admit of shades of difference. I don’t mean the accuracy
of a photograph—we are not in search of abstract perfection—I mean
that degree of accuracy which satisfies the judgment of a skilled and
experienced mind specially charged with the duty of determining what
is sufficient. Upon this question of accuracy the parallel between Acts
of Parliament and Reports ceases to apply. In the case of Acts of
Parliament, accuracy is obtained by what may be termed mechanical
correctness—the ordinary care of the copyist and compositor, checked
by examination. To obtain the accuracy essential to a Report, we
must resort to means more exposed to the chances of error—we require
a combination of skill, learning, and experience specially qualified for
and directed to the labour of its preparation. But fortunately for the
public there is no lack of means for securing this requisite combina-
tion. The ranks of the Bar supply in abundance the means for
obtaining the essential accuracy required, as certainly and efficiently,
HISTORY OF “« THE LAW REPORTS.” 33

morally speaking, as copyists and compositorsare able by their labours
to secure the accuracy of Acts of Parliament.

These three qualities of Authenticity, Singleness, and Accuracy are
those characteristics of Reports which theory and principle would point
out as essential; and in so far as any of these qualities are wanting or
defective, the public interest may be presumed to suffer. It will at
once be perceived that, of the three qualities thus spoken of, Accuracy
is the most important; unless this can be secured to that reasonable
extent which I have endeavoured to describe, the other two would be
worse than useless—they would involve evils more serious than any
of which we now complain.

In addition, however, to the three qualities just spoken of, there are
two others of a more practical character, but still essential,_namely,
Speedy Publication and Reasonable Cost. A report that is authentic
and accurate, and to be accepted as the only standard of authority,
should be published without any greater delay than is necessary to
ensure its reasonable accuracy. An Act of Parliament may be pub-
lished as soon as it can be copied and printed—not so a Report; some
time is absolutely necessary for its proper preparation, but the time
requisite for that purpose ought not, in the interest of the public, to
be exceeded. Why should it? What have private interest, private
convenience, or private considerations of any kind to do with the
question? The matter concerns the public interest; and if this were
once placed upon a proper footing and under proper regulations, in
which the public interest was made the primary object, we should no
more hear of private reasons affecting the publication of reports than
we should hear of private occupations or amusements interfering with
the attendance of a Registrar or the public sittings of a Judge!

The last point is, Publication at Reasonable Cost. The public, who
are bound by the law and must purchase in order that they may know
it, and particularly all legal practitioners, are entitled not only to
have it promulgated with aJl due despatch, but also to have it supplied
to them at no greater cost than is involved in fair and liberal payment
for the skill, labour, and expense incurred in its preparation and publi-
cation. The demand for the Reports is created chiefly by the necessity
fur their use; and after liberal remuneration to those who prepare
them, those whose occupation and position oblige them to buy ought
not to have the burden of their necessities increased by the exaction
of any profits not properly connected with the preparation and the
sale. I shall have to deal with this question of cost or price more at
large and in a more directly practical shape hereafter; I content
myself at this stage with enunciating the principle upon which I shall
contend that cost should be caleulated—a principle which will be
found to base itself upon the exclusion of all commercial or trade profit.
34 HISTORY OF “THE LAW REPORTS.”

So much for the first division of the subject. The points I insist
upon are :—That the proper preparation and publication of the Reports
of judicial decisions which are to be accepted as authority, are matter
of Public Concern ; and that such reports ought to possess these five
characteristics :—1. They should be authentic ; 2. There should be
only one standard of reference; 3. Proper means should be adopted
for insuring reasonable accuracy; 4. They should be published with
due expedition; and, 5, At a reasonable price.

II. I proceed to consider, in the second place, What our present
system is; and in so doing shall view it as at present compounded of
Privilege and Competition, tracing the growth and progress of Com-
petition, pointing out the evils that have arisen in consequence,
stating some of the expedients that have from time to time been
suggested as remedies, and considering the causes to which those evils
may be traced.

Our present system of Law Reporting, if system it can be called, is
founded upon the notion that Law Reporting is the proper subject of
Commercial Enterprise, and may be conducted upon the economic
principles of Free Trade, fettered, however, with one restraint, but
with one only,—namely, that the manufactured article be prepared by ~
a privileged class ;—that the Report be prepared and published under
the name of a Barrister. With this single restraint, the market for
Teports is now as open as the most devoted follower of Adam Smith
could desire. Any one who thinks he can make a trade profit out of
Law Reporting, whether by underselling his rivals, underpaying his
labourers, or any other device which commercial skill can invent to
secure an advantage in the struggle for gain, may start a Set of
Reports; and, from what seems at length to have become, with scarcely
an exception, the settled practice of the Courts in permitting the cita-
tion of reports having the names of barristers appended, establish
himself as the Purveyor of an Article which the Judges must accept
and the Public be bound by as evidence of the unwritten law. The
Lord Chancellor, in his speech on the Revision of the Law, before
referred to, thus describes the present state of Law Reporting :—

“The reports are published without any judicial control or sanction, nor is
there any provision to ensure correctness or security against error, but as soon
as a report is published of any case with the name of a barrister annexed to it,
the report is accredited, and may be cited as an authority before any tribunal.” —
Macq. Ed., p. 9.

As a consequence of this perfect freedom in the trade of reporting,
what is the result which the profession and the public now witness,
and the burden of which they are compelled to endure? There are at
present Six separate and distinct sets of publications, cach professing
to be a complete and sufficient witness of the unwritten law, and each
HISTORY OF “THE LAW REPORTS.” 35

of which is citable and cited in our Courts as authority. Familiarly
speaking, these reports are divided into two classes, and distinguished
as the Regular or Authorized reports—the reputed children of Privi-
lege,—and the Irregular or Unauthorized reports—the acknowledged
offspring of Competition. This nomenclature has however become
singularly inaccurate. The regular Reports are published at most
irregular intervals, according to the private convenience of the reporter,
sometimes with a discontinuance of the set, destroying the continuity
of the series. The irregular Reports, on the other hand, are published
most regularly—regularity of publication being essential to their
commercial success. The unauthorized Reports have become alinost the
only authority which practitioners in our Courts have at hand or care
to cite, and the authorized Reports are left with little more of the
advantage of authority than consists in a name.

But, preserving the name, though the substance may have changed,
the regular or authorized Reports now consist of the following sets :-—

The House of Lords Cases (other than Scotch appeals) by Clark.

. Scotch Appeals, by Macqueen.

. The Privy Council Cases, by Moore.

. The Appeal Courts of the Court of Chancery, comprising The Lord Chan-
cellor and the Lords Justices, and cases in Chancery, Lunacy, and
Bankruptcy, by De Gex and Jones.

5. The Rolls, by Beavan.

6. V.-C. Kindersley, by Drewry and Smale.
7. V.-C. Stuart, by Giffard.

8. V.-C. Wood, by Hemming and Miller.

9. The Queen’s Bench, by Best & Smith.

10. The Common Bench, by Scott.

11. The Exchequer, by Hurlstone and Norman.

12. Bail Court and Practice Cases, by Lowndes and Maxwell.

13. Probate and Divorce Court, by Swaby and Tristram.

14. New Admiralty Reports, by Lushington.

15. Crown Cases Reserved, by Leigh and Cave.

16. Registration Cases, by Keene and Grant.

coh

These sixteen different publications, the property of several different
persons, and consequently under as many different managemeuts,
comprise together the body of Reports which, uuder the name of
Regular or authorized, contain or purport to contain, those decisions
of our Superior Courts of Law and Eyuity and the Appellate Courts,
which ought to be the evidence of the unwritten law. And, prima
facie, one would say there is no apparent deficiency in their range :
there does not appear to be any part of the proper area of judicial
decision left unoccupied. Now, if these Reports could be consolidated
and made one, in such a manner as to answer the requirements of the
p:ofession and the public, in the matter of their preparation, the period
36 HISTORY OF “THE LAW REPORTS.”

and punctuality of publication, and their cost, do not the instincts
of common sense tell us it would be desirable? These regular Reports,
however, have been and are great wrungdoers to the public; or rather,
they disavow all obligation of duty to the public; and, therefore, can
urge no especial claim to favour. Brought into existence and sus-
tained by the motives which animate commercial enterprise, they look
primarily, if not exclusively, to what they deem to be their own
interest—their pecuniary interest—their profit. The public interest
is not their concern nor the object of their care. Are they blameable
for this? Remember the public guarantees them nothing,—neither
profit, nor protection, nor privilege; they owe the public nothing;
they are left exposed to all the consequences of Trade Competition.
They must protect themselves as best they can. Reduced circulation,
caused by competition, perpetuates high prices and leads to their increase.
Laudable attempts to reduce the price, founded upon the hope of in-
creased circulation, have been made, morethan once,and failed. Promises
of more speedy and regular publication have been made in good faith;
the promise has been proved by experience to be incapable of complete
performance. Spasmodic efforts at speedy publication are sometimes
made; but a state of spasm is not a state of health! When the pub-
lisher and the reporter are different persons, the system of payment
by length and quantity too generally prevails. This holds out a
strong temptation to prolixity, tending to deteriorate the character of
the Report; increasing the burden to the public by increased price
for worthless matter. The publisher, on the other hand, is in the
hands of the reporter as to supply of the manuscript. The reporter's
other engagements may interfere with its preparation ; by the allure-
ments of professional success, he may even be tempted to halt in or
suspend his Jabours; or the accident of death may terminate them;
and the publisher has no power over the manuscript. Hence delays
and interruptions in the publication, and gaps in the series, giving an
impetus to competition. The instances which justify these remarks
are familiar; several may be found in any Law Catalogue. Their
citation is unnecessary, and might suggest the idea that a reflection
on individuals was implied, than which nothing is further from my
intention. I desire only to point out the evils and defects of the
system, with a view to its amendment. Where, as in some cases, the
publication is at the risk of the reporter, the temptations to prolixityand
delay of course do not exist—the very opposite incentives are brought
into play. But here, the evils of Competition are felt in their fullest
intensity :—reduced circulation forbids any attempt at reduced price ;—
the incubus of trade profit, in the shape of discounts, has the effect of
sweeping away 35 per cent., or more, of the gross proceeds, leaving
not more than 65 per cent. to bear the burden of the entire cost: the
HISTORY OF “THE LAW REPORTS.” 37

balance is the profit. This balance necessarily varies, but is always
directly affected by the amount of circulation. In no case of this
class that now exists will it, I believe, be found that the profit to the
reporter amounts to anything that can be considered a fair remunera-
tion for his professional skill and labour. And inadequate as this
remuneration is, it is continually exposed to the risk of further re-
duction, arising from diminished circulation ; an evil constantly
threatened by competition, and against which no amount of skill,
labour, or industry will enable the Reporter successfully to struggle.
Here again I could verify my statements by figures with which I have
been favoured, but I think it unnecessary, and therefore undesirable
to do so; the material facts are familiar to my professional brethren.
Tam aware that the regular or authorized reporters in the House of
Lords and the Privy Council are appointed at salaries; but I believe
I shall be justified in the opinion, that advantage would result to the
public from making those Reports part of one general system founded
upon unity and authenticity, increasing at the same time the responsi-
bility and usefulness of the office, and providing an increased re-
muneration and a more satisfactory mode of payment for services so
valuable.

The evils of the regular or authorized Reports, as they form part of
the present system of Law Reporting, may be thus summed up :—

1. Enormous expense.

2. Prolixity.

3. Delay and irregularity in publication.

4, Imperfection as a record, for want of continuity.

To these I will add, further, an evil not, like the others, inherent
in the system, but occasioned by the nature of the competition to
which the regular Reports are exposed,—which, however, has become
a serious evil,—namely, that of reporting cases indiscriminately and
without reference to their fitness or usefulness as precedents, merely
because, having been reported by rivals, the omission of them might
prejudice circulation, and consequently diminish profit.

I come now to consider the Reports termed Irregular or Unauthorized.
Those at present in existence are——

1. “The Law Journal,” established in 1822.

2. “The Jurist,” established in 1837.

3. “ The Law Times,” established in 1843.

4. “The Weekly Reporter,” established in 1852, united in 1856

with “ The Solicitors’ Journal,” then established.

5. ‘The New Reports,” established in November, 1862.

In addition to these, the following have been established and dis-
continued :-—In 1829 an attempt was made by Mr. Tamlyn to report
decisions at the Rolls, in opposition to the regular reports of Russell
38 HISTORY OF “THE LAW REPORTS.”

and Mylne; but these were discontinued the following year. In the
same year, 1830, ‘The Legal Observer” was established, and con-
tinued until December, 1855 ; its place was filled up, in January, 1856,
by “The Solicitors’ Journal.” In 1835 reports of decisions in the
several Courts of Common Law (which acquired the name of the
Omnibus Reports) were started, and continued until 1840, when they
suddenly ceased, leaving the current volume in each Court incomplete. In
1848, Reports of Decisionsin the Lord Chancellor's Court were started
in the names of Hall and Twells, in opposition to these of Macnaghten
and Gordon, but discontinued in 1849. And in 1853, reports called
“The Law and Equity Reports,’ being decisions, as their name
imported, in all the Superior Courts of Common Law and Chancery,
were started, but discontinued the following year. All these attempts
were the profitless speculations of Competition. They have left,
however, an evil behind them, in this—that the case-hunting spirit
may succeed in finding in them some case not to be found elsewhere,
and which, by its citation, may unsettle more recent decisions; and
thus, though cast out from our Libraries, they serve to supply latent
elements of confusion.

Each of the five existing sets of these Irregular Reports purports to
be a complete collection of all the decisions in our Superior Courts of
Law and Equity and Appellate Courts, and each is allowed to be
cited as authority in all the Courts without any substantial dif-
ference.

It is not unworthy of remark, that some of these publications in
their outset disclaimed the intention of being what they have since
become—rivals of the regular Reports ; and aimed only at the object
of conveying to the profession and the public information as to the
proceedings in Courts of Justices more accurately than could be ex-
pected from general newspapers, and more speedily than could be
obtained from the regular Reports. Thus, ‘‘ The Law Journal,” the
first and most formidable of all these rivals, in its preliminary
announcement,—vol. i., p. 2,— with reference to Law Reports, states
as follows :---

“Tn presenting the profession with a new set of Reports of the cases decided
in the Courts of Equity and Law, it is the most anxious wish of the proprietor
that the present publication should not be considered as in any manner inter-
fering with the more elaborate labours of Mr. Jacob and Mr. Walker, or their
successors in the Court of Chancery; Mr. Barnewall and Mr. Alderson in the
Court of King’s Bench, or with those of Mr. Broderip and Mr. Bingham in the
Court of Common Pleas. A comparison of the different manner of giving the
reports will immediately remove all suspicion of any opposition being intended to
the labours of those learned and accurate Reporters.

Tn accordance with this design, “The Law Journal” was at first a
HISTORY OF “THE LAW REPORTS.” 39

weekly publication, furnishing, among other information connected
with the profession, reports in a form useful for general practitioners
—not affecting to give them the aspect of authority. This mode of
publication was continued until 1830, when a new series commenced ;
and then commenced competition with the regular Reports. The
names of the Barristers furnishing the report were given, the parts
were published monthly instead of weekly, and the form and character
of a newspaper publication were abandoned. ‘The Law Journal” has
ever since maintained a prosperous career, and at the present time no
doubt possesses a much larger circulation than any one—perhaps than
any three or more—of the so-called regular Reports. The state of
the regular Reports at the time—their costliness, the delay and
irregularities in the publication, the entire absence of anything like
unity in their system of publication and management, and the too
little regard given to the consideration of what the real interests of
the profession and the public required, were probably the causes
which led to this change in the character of “The Law Journal,”
and have since contributed to its success.

But although it must be admitted that “The Law Journal” has
done service to the public, by correcting some of the evils which
attended the system of the regular Reports, yet it must be observed
that the example set by this publication was the beginning, and from
the year 1830 must be dated the commencement, of that unrestricted
competition, which has since had so many followers, and has culmi-
nated in the number which now oppresses the profession.

In the same year, 1830, ‘The Legal Observer” was established,
following in the wake of “The Law Journal,” as a competitor with
the regular reports, but adopting, what had been abandoned by that
Journal, the character of a weekly publication. In the preface to the
first volume of ‘‘ The Legal Observer,” the Editor, in giving a summary
of the year’s labour, says :—

“We have given a series of original reports in all the Courts of Law and
Equity, which will supply the place of the more expensive Law Reports, parti-

cularly as we have been able to give reports of the decisions of Courts of which
there is at present no other report.”

The successful examples of ‘The Law Journal” and “ The Legal
Observer” after a time brought another rival into the field. In the
year 1837 “ The Jurist ” was established, competing with ‘ The Legal
Observer” as a weekly publication, and with that and “The Law
Journal” as another rival of the regular Reports. In the first number
of “ The Jurist” (14th January, 1837), this announcement is made :—

“The decisions of the Courts of Chancery and of Common Law will be
reported by Barristers, and in this part of the work an attempt will be made to
attain the correctness of the usual reports, without their prolixity.”
40 HISTORY OF “THE LAW REPORTS.”

The Newspaper character which had originally belonged to and
had been afterwards abandoned by “ The Law Journal,” had not been
entirely adopted either by “The Legal Observer” or “ The Jurist ;”
and though both were weekly publications, and both gave professional
information in the nature of news to a certain limited extent, each
professed to have higher aims—“‘ The Legal Observer” was more
antiquarian and cosmopolitan, and “The Jurist” more scientific and
didactic. In this state of things there appeared to be a place in the
field of competition not fully occupied, and, in the year 1843, “ The
Law Times” was established as a weekly Law Newspaper ; and in the
preface to the first number, this announcement is made with reference
to reporting :—

“ We have been much perplexed how to deal with the Reports. It would be
manifestly impracticable within the limits allowed by other intelligence to pre-
sent anything like a full report of all the Courts. And indeed this work ts so
well done by publications that very properly devote themselves almost wholly to it,
that it would be folly to attempt to rival or supersede them.”

This view, however, was not long maintained ; the probable advan-
vantages of rivalry, through the now established system of self-
appointed reporters, appears soon to have removed the notion that the
attempt would be folly, for in the sixth number of “ The Law Times,”
we find, under the head “‘ The Reports,” this announcement :—

The following are the names of gentlemen who favour “The Law Times”
with the reports,”—

enumerating the reporters. By this step, “ The Law Times,” equally
with “ The Law Journal,” “The Legal Observer,” and “The Jurist,”
became a competitor with the regular Reports. With these four com-
petitors in the struggle to supersede the regular Reports, and each
endeavouring to rival and supersede the others, it will not be matter
of surprise that the evils to the profession and the public, arising from
crude and hasty reporting,—and (be it said with all respect) from the
imperfect performances of inexperienced and underpaid reporters, from
the uncertainty, inconsistency, and confusion produced by numbers,
and withal from the increased expense to the practitioner,—should at
length arouse the attention of the profession.

Accordingly, we find that in the year 1848, the subject of the system
of Law Reporting was discussed in two articles published in “ The
Law Review” and ‘“‘The Law Magazine” for that year (7 Law
Review, p. 223, and 40 Law Magazine, O. 8., p. 1); to those articles
I beg to refer. They will repay the trouble of re-perusal, and fully
justify all the strictures I venture to pass upon the present system ;
they dilate as well upon the cnormous evils attendant upon the regular
HISTORY OF “THE LAW REPORTS.” 41

Reports as those introduced by their competing rivals. The result
of the attention thus drawn to the question was, that the subject was
taken up by the Law Amendment Society (which has the honour, Sir,
to number you among its influential members), and a committee
appointed, who, in 1849, made an elaborate report, which was exten-
sively circulated, and published in “The Law Review” for 1849,
vol. 10, p. 395. To this Report I also beg to refer, as embodying the
opinions—condemnatory of the system as it then existed—of persons
whose opinions are entitled to respect, if only upon this ground, that
those who wear the shoe can best tell how and where it pinches! The
Report enlarges upon the evils of delay, of expense, of prolixity, of
irregularity, of competition. Against competition the Report especially
inveighs :—

“Competition, ordinarily productive of so much good, in this instance adds
to the evil. ... It has long been considered a practicable scheme for any bar-
rister and bookseller who unite together with a view to notoriety or profit, to
add to the existing list of Law Reports. ... Wherever there is the smallest
opening, the profitable trade of Law Bookselling establishes a fresh series of
Reports. ... The competition of the reporting system is thus carried on with-
out regard to the interests of the profession or public... . Tosumupina few
words,” say the Committee, “the evils and inconveniences of the existing
system of Law Reporting, there is no guarantee afforded to the public that the
judicial exposition of the law will be reported at all, or reported correctly, or in
such a manner with respect to conciseness, form, and price, as to be accessible
to those whom it so vitally affects.”

This Report, although valuable as the expression of professional
opinion upon the system as it then existed, failed to suggest any
practical remedy; it however adverted to this important fact :—

“That the present voluntary outlay of labour, skill, and money on the part
of the legal profession, in the shape of Law Reports, are amply sufficient to
secure, under a systematic direction, all that could be desired in the shape of an
authentic series of Reports, to be produced regularly, expeditiously, and cheaply.”

No efficient remedy having been suggested, the admitted evils were
left unredressed. The result was what might be expected—the ap-
pearance in the field of another candidate for a share in the prize of
commercial profit. In Michaelmas Term, 1852, “The Weekly Re-
porter” was established, limited, as its name indicated, to reporting
only, and disclaiming all such general objects as had been embraced
by “The Legal Observer,” “The Jurist,” and “The Law Times,”—
thus challenging competition generally, not only with the regular
Reports and their existing rivals, but also with “The Law Journal”
especially, matching its rivalry with that journal by a weekly instead
of a monthly publication. In the preface to the first volume of “ The
Weekly Reporter,” dated Trinity Vacation, 1853,—after speaking
42 HISTORY OF “THE LAW REPORTS.”

with satisfaction of the result of their labours for the first legal year,
and observing that many who were at first startled by the novelty and
magnitude of the scheme, and the difficulties which it appeared to
involve, had now been convinced both of its practicability and advan-
tageous character,—the editors proceed to say—

“ They are happy to state that they have found throughout the profession a
deep and anxious interest in the success of this publication, no less on account
of the merits which may be fairly claimed for it than from dts appearance form-
ing a new era in the history of Law Reporting in this country. The expense and
the delay of the publications in which the decisions of the Superior Courts are
reported are generally felt to form a very serious evil, and to be quite out of
keeping with the economy and dispatch which are found to prevail in all
matters where useful knowledge or serious business are concerned at the present
day. There may be some who prefer the dilatory process and the exorbitant prices
of the old Reports to the cheaper and quicker system which is now commanded
by the exigencies of the times. But the matter is no longer a question of taste;
and every practitioner feels that the delay and expense which have hitherto pre-
vailed in the publication of the decisions of the Superior Courts are incompatible
with the present state of the profession, and must if possible be brought to an end.
To remedy these evils by introducing a new system, which should prove to the
profession that a different mode of reporting was at least practicable, and might
be made as useful as the old, was the object of the projectors of this publication.”

And after speaking of difficulties surmounted, and promising that the
reports in the next volume should be still more perfect and complete,
and should still more satisfy the wants of the profession in this most
important department of legal literature, they proceed—

“Meanwhile, the present volume will speak for itself, and will be of the
highest utility in presenting in a cheap and accessible form reports of all im-
portant cases that have been decided in the Courts of Law and Equity during
the past legal year.

I have extracted from this preface at some length, and recommend
the whole to the perusal of my professional brethren, for the purpose
of suggesting the reflection whether the self-seeking spirit of com-
mercial adventure, too freely indulged in, may not have a tendency
to dull that nice sense of truth and honour which ought to characterise
every act of a barrister done by him iu the exercise of his professional
privileges,—of which reporting is one,—privileges which belong to
him not as an individual, but as a member of an institution, and which
rest for their best if not only fuundation upon this, that they exist and
are to be exercised for the public good. “The Weekly Reporter”
contains a very useful and carefully compiled Table of the Names re-
poted in the volume, with a reference to the report of the same case
in contemporaneous reports. A reference to this table in the volume,
from the preface to which I have largely extracted, will show how
HISTORY OF “THE LAW REPORTS.” 43

shallow is the pretence to the claim thereby set up to novelty, expe-
dition, and cheapness, as compared with the Reports which it proposes
to supersede !

Take the following instances from the first page :—

In Chancery.

Barrington v. Liddell, under the column headed “Reference to
Contemporaneous Reports,” we find this case reported :—

“ Burrington v. Liddell :-—2 De Gex, Macnaghten, and Gordon, 480.
22 Law Journal, Ch. 1.
17 Jurist, 241.
20 Law Times, 133.”
The next case—

“ Bartley v. Bartley :—1 Drewry, 233.
22 Law Journal, Ch. 47.
16 Jurist, 1062.
20 Law Times, 140.”

Scores of instances of a similar character may be seen on reference
to the lists both of the cases in Chancery and cases of Common Law
in the same volume.

Where, it must be asked, is the ground for the assumption of
superiority over the other Reports either in expedition, novelty, or cheap-
ness? This list of vases furnishes abundant evidence that the regular
Reports, as well as their eager rivals, are running a neck-and-neck race
for public favour; and that the result is nearly a dead-heat, at least as
regards speedy publication. Hare, Drewry, and De Gex, Q. B. Reports,
C. B. Reports, and Exchequer Reports, among the regulars, are pub-
lished side by side with their rivals,—“ The Law Journal,” “ Jurist,”
“ Law Times,” and “ Weekly Reporter.” Surely this petty tradesmen-
like propensity to puffing is as inglorious to the profession as the
system which induces it is injurious to the public!

But what, it may now be asked, was the effect at the time of this
increased competition, created by ‘‘ The Weekly Reporter,” upon the
interests of the public and profession, and especially upon those whose
opinions had been strongly though ineffectually expressed in 1848
and 1849? Just what might have been expected. The sufferers were
again on the alert, but again, unfortunately, a difference arose as to
the Remedy. Some of the regular Reports in the Court of Chancery
were announced for publication at greatly reduced prices and at early
periods, in the hope of inducing an increase in the uumber of sub-
scribers. This, however, was the isolated effort of individuals, and
comprised some only, and those a very few, of the regular Reports;
and it entirely failed. As a consequence, high prices were obliged to

E
44 HISTORY OF “THE LAW REPORTS.”

be again resorted to, or rather, were never departed from. Mr. Hare,
towards the close of his useful career as a Reporter, propounded a
scheme for the formation of a Society, to be called the Juridical Society,
for the publication of the Reports, to be established by Royal Charter,
and managed by a Council of Supervision, who should have the
appointment of the Reporters; but the proposal did not meet with
favour. It did not assume any phase of authority ; it would have
been a mere voluntary association of subscribers; and it did not, I
believe, go beyond printing the prospectus and preparing the draft
charter. The Law Amendment Society took the matter again into
their consideration, and referred it to another Committee, who, by a
Report published in 1853, after confirming the views and opinions ex-
pressed in the Report of 1849, and adding various reasons of their
own, showing the importance to the public of establishing a proper
system of reporting, and the means which, if properly combined, exist
for the purpose,—express themselves thus :—

“To effect a combined action on the part of the large number of gentlemen
at present engaged in Law Reporting; to prevent a variety of printed versions of
the same case; to make the books of Reports contain all judicial decisions by
which the future administration of justice is affected, and those only; to avoid
mere book-making, and insure at once expedition, accuracy, completeness and
cheapness in the Reports, has long been a desideratum in the profession; and of
late years various plans have been proposed in order to attain it.”

“The plan of a voluntary association has been suggested amongst the Re-
porters and those who professionally use the Reports ; and it has been urged, that
inasmuch as the profession of the law comprises at once those who frame the
Reports and those who use them—in fact the producers and consumers—its
members are directly concerned in the success of such an association, and ought
to establish it without adventitious aid. But when the difficulties are con-
sidered of inducing a sufficient number of individuals to act in unison, and
gratuitously incur the responsibility of so comprehensive an undertaking, and
how many conflicting interests would then have to be dealt with, your Com-
mittee have arrived at the conclusion that nothing short of an authorized Board,
invested with the power of superintending the Reports in our several Courts, and
regulating the time, mode, and expense of publication, will effectually cure the
evils now so loudly complained of. A voluntary Society, consisting of a less
number than 5060 subscribers, would not be able to publish Reports at such a
cost as effectually to destroy competition, and the result of the attempt would
possibly be to add merely to the existing evils caused by rival series of contem-
poraneous Reporters, and even were the majority of the present Reporters to
join such a Society, the series of Reports hitherto conducted by them might
still be conducted by other hands. Were a competent Board, however, invested
with the power of officially publishing the Reports at a small price out of a fund
placed at their disposal, there would be no difficulty, it is apprehended, in inducing
the best of the present Reporters to concur; for an arrangement could thus
easily be effected for making their remuneration at least equal to that which
they at present receive, and affording them material advantages in other respects ;
HISTORY OF “THE LAW REPORTS.” 45

and the cost to subscribers could at once be fixed at such a sum as to effectually
destroy competition, and not only to secure the adherence of all those who
at present annually pay for the Reports, but of a large number of other parties
who are now precluded on the score of economy from doing so.”

The Report then contains these suggestions :—

“That a permanent Board, composed of Commissioners, should be
appointed by the Crown, for the purpose of supervising and editing the Reports
of judicial decisions. That the Board should, subject to the sanction of the
presiding Judges in their respective Courts, select a sufficient number of com-
petent Reporters for each of the Superior Courts, to rank and be remunerated
according to seniority of appointment; and that the cases collected from time
to time by such authorized Reporters should be printed and published by the
Board at regular intervals as soon as practicable after the decisions are pronounced.
That an office should be provided, to which all Reports of cases should be sent
in order to be submitted to the Board; and after the Reports are printed they
would be sold by the Board at the smallest practicable rate to the public—a
sufficient number of the Reports being supplied gratis to any Assize Court and
any Local Court in the Country, for official reference. That Government should
advance a sufficient swm to the Board in the first instance, to meet the expenses ;
and out of the funds collected by the Board by the sale of the Reports should
be paid the salaries of the Reporters and the general expenses, and the
remainder applied in repaying whatever had been intrusted to them by the
Government. And at the end of each year a debtor and creditor account should
be made out and submitted to the Treasury, showing the various items of ex-
penditure, and showing the receipts of the Board in the execution of their trust ;
the Treasury having power to certify that the charge for copies of the Reports
ought to be reduced in case any considerable surplus remained after paying all
expenses of the Board, and of preparing, printing and publishing the Reports.”

This elaborate scheme did not find sufficient favour with the pro-
fession or the public, to be taken up by authority. I have given its
details at length, in order that the difficulties in providing a remedy
may be the better judged of. The objections to the scheme, apart
from the vagueness of some of its details, appear to me to be, that it
rested upon Government influence, Government patronage, and the
advance by way of loan of public money of an undefined amount
upon the security of an experiment—the money to be expended, and
experiment conducted by persons who must have been under a very
indirect responsibility.

A further proposal was, I believe, about the same period made to
the then Lord Chancellor (Lord Cranworth) by certain of the regular
Reporters, to inaugurate a new system in the publication of the Equity
Reports, which should ensure greater expedition, regularity, and
cheapness, to be assisted by an advance out of the Suitors’ Fund; but
this proposal, for want of support, fell to the ground. Other pro-
posals may have been made, of which I have not obtained information ;
if there were any such, certain it is, they never succeeded. Private

E 2
46. HISTORY OF “THE LAW REPORTS.”

enterprise, individual exertion, voluntary association, Government
interference founded upon an advance of public money, the influence
of the Great Seal, were all suggested, and some attempted,—without
effect; and the public and the profession were left without remedy in
the matter.

After the failure of all these several attempts, there broke out a
gleam, but only a gleam, of hope from a most unexpected quarter,—
namely, from one of those who were engaged in this race of competi-
tion. In ‘‘ The Jurist” for November 11, 1854, vol. xviii, part ii,
p. 430, the Editor, in a leading article, after directing attention to the
prejudice the law was suffering as a science from the state of our
Statute Law and Reports, and the almost hopelessness of any real
amendment, speaks thus of reporting :—

“But the great evil is in the reporting system: and, especially now that the
fusion of Law with Equity has commenced in earnest, there is no hope that any
lawyer will be able to master his business until two things have been done—
first, the purification and abridgment of the existing Reports by authority; and,
secondly, the establishment of an authorized staff of reporters for the future. If
such a reform were suggested on a sound basis “ The Jurist” would gladly retire
and seek some new form of existence.”

This reform on a sound basis has, however, never yet come, and
“The Jurist” still continues the same form of existence, unwittingly
adding its quota to the evils thus deprecated in itscolumns! Encou-
raged, as it would seem, by the sign thus held out by “ The Jurist,”
“The Law Magazine,” in an article published in May, 1855, vol. liii.,
p- 292, endeavoured to revive professional energy upon the subject,
and proposed a remedy, limited however to the Common Law Courts. The
proposal is thus stated :—

“That an Act of Parliament should be passed for the regulation of the Reports ;
that a staff of competent Reporters should be appointed by and be under the control
of a certain number of the leading members of the Bar; that the Reports should
be considered authentic by the Courts, and that no reference should be allowed
in argument to any other Report; that the decisions of the three Courts should
be published in a consolidated form; that they should be issued to the public
within as short a period as is consistent with accuracy, and that the charge to
the subscribers should not be larger than would be found adequate to support
the expenses of the work.”

And the reviewer urges the following, among other reasons, in sup-
port of his proposal :

“The Reporters are not their own masters, and cannot individually, or as a
body, without extraneous assistance, reform the system. The booksellers are
not to blame for looking to their own interest; the Bar have the remedy in their
own hands by applying to the Legislature upon the subject.”
HISTORY OF “THE LAW REPORTS.” 47

At the time this article was written, there was a notice before
Parliament by Mr. W. Ewart, M.P. for Dumfries, of a motion for the
appointment of a Select Committee of the House of Commons, to
inquire into the expediency of appointing authorized Reporters in our
Courts of Law; but the motion was never made, and the scheme last
proposed for the appointment of Reporters for the Common Law
Courts by the Bar, under the sanction of an Act of Parliament, fell
to the ground, and was heard of no more. The subject, nevertheless,
lost none of its interest with those who felt its importance and were
anxious for amendment.

In the inaugural address of The Right Honourable Joseph Napier
(then Lord Chancellor of Ireland) as President of the Section of
Jurisprudence, read by Har] Russell to the Association for the Promo-
tion of Social Science, at their meeting held at Liverpool in October,
1858,—in enumerating various matters in which the law was defective
and amendment called for, Mr. Napier thus expresses himself with
reference to the system of Law Reporting :-—

“How is our code of judicial decisions to be maintained as part of a binding
system of law, if those decisions be not authenticated, reported by responsible
officers, and published under responsible authority? . . . The suit between A. B.
and C. D. involves a decision in which the public is a party deeply interested.
But there is no public provision made for an authentic Report of such a decision,
or that it should be dealt with otherwise than as the private litigant, the casual,
perhaps incompetent, reporter, or the speculating publisher may secure.”—
Transactions of the Social Science Association for 1858.

I will produce only one other witness to the evils of the present
system of Reporting, and one other suggestion of a remedy. Mr George
Sweet, the learned and indefatigable Editor of the last edition of
Jarman and Bythewood’s ‘‘ Conveyancing,”—and who, from his posi-
tion and experience, is an authority very worthy of attention,—in a
paper read by him before the Juridical Society on the 10th of February,
1862, “Upon the Expediency of Digesting the Precedents of the
Common Law, and Regulating the Publication of Reports,” upon the
latter subject says :—

“Reporting is now uncontrolled. There are five competing series in the
Superior Courts ” (adding in a note, A sixth series of Reports in all the Courts
has been announced) “each of which by reason of competition, and it must be
added, of the badness of the article, barely affords a scanty remuneration to the
reporters and the publishers. The reports are dear, and the expense is most felt
by those who have most leisure to study them; they are diffuse, so that the
material points are overlaid; and they contain cases which ought never to be
reported,—wasting time, filling shelves, and incumbering the law with a multi-
plicity of useless details. It may be difficult to find a remedy for this plague of
Reports. Competition and privilege have been tried at different times, and
neither has given satisfaction. The sole fruit of Lord Bacon’s attempt to reform
48 HISTORY OF “THE LAW REPORTS.”

the system of reporting, was the appointment of Hetley; and Hetley’s Reports
are not valued. It is, however, by no means clear that reporting is a proper
subject for competition. It is only by the liberality of the Judges that notes of
cases taken by self-appointed reporters are allowed to be cited. The end
sought being an authentic record, it seems that a responsible officer should be
appointed to keep the record.”

He then proposes :—

“That a Chief Reporter should be appointed for each Court, with a liberal
salary and two or more salaried assistants to take notes in Court; the duty of
the Chief Reporter being mainly to determine what cases should be published,
to revise the Reports, and to see that his assistants perform their duty. I need
not say that the Reporters should be wholly independent of the Judges, and
that they should remain in office during good behaviour. A fund sufficient to
defray the expenses of the establishment might be raised by sale of the Reports.
The sale of the King’s Bench Reports at one period exceeded 3000 copies. The
publishers printed 4000 copies, and paid the Reporters at the rate of nearly
three guineas for every page. Since that time, the sale of some of the regular
Reports has dwindled, as I am informed, to 300 copies.”—Jurid. Soc. Papers,
vol. ii., p. 583.

The sixth plague, whose coming was heralded by Mr. Sweet, in
due time made its appearance. On the 15th November, 1862, the first
number of “The New Reports” was published, with an array of
names, as Editors and Reporters, which certainly furnishes abundant
evidence, that if ever Law Reporting should be put upon a proper
footing, the public interest would be in no danger of suffering for
want of members of the Bar able and willing to render the necessary
service. I believe none of its earlier rivals ever attempted, or perhaps
were able, to display such an imposing list of University Honours,
wherewith in their advertising sheet to captivate the public, as has
been displayed by the fortunate publisher of these ‘‘ New Reports.”

This appearance of another candidate for a share of profits already
so reduced as to afford, in the language of Mr. Sweet, “a scanty
remuneration to the Reporters and the publishers,” might well be
looked upon as an intrusion even by existing rivals, and might almost
justify a protest against the proceeding as unprofessional, by tending
to reduce still further the remuneration of the existing Reporters; are-
muneration which commercial enterprise, protecting its own profits, had
already reduced to a bare pittance! To those who looked at the matter
apart from private considerations, and only with a view to the interests
of the profession and the public, the appearance of these “New
Reports” has suggested the urgency of again making some attempt
to provide a remedy for an evil which seems to possess a power of
expansion and growth to be measured only by the minimum of com-
mercial profit for which speculation will be content to risk a throw.
HISTORY OF “THE LAW REPORTS.” 49

Here let me pause and consider some of the results which the
present system of Law Reporting in its combined form of regular
and irregular—authorized and unauthorized—Reports brings upon
the profession and the public.

The irregular Reports are established, one and all, for the avowed
purpose of relieving the profession and public from the expense of
the regular Reports, and each, as it came into existence in succession,
was based upon the principle of underselling its immediate prede-
cessor. Thus, “The New Reports,” the latest of the rivals, are
cheaper than their immediate predecessor, “‘The Weekly Reporter.”
“The Weekly Reporter” is cheaper than “The Law Times,” “The
Law Times” is cheaper than “ The Jurist,’ “The Jurist” is cheaper
than “The Law Journal.” Now, what effect has this repeated process
of underselling had upon the cost of the regular Reports? Only to
make their enormous cost a commercial necessity, and to preclude the
possibility of reduction ; because the effect of competition has been,
not to supply their place by an adequate substitute, and thereby to
remove them from the field, but only to reduce their circulation.
What has been the effect of competition upon the competitors them-
selves? The answer must be, so to reduce their several circulations
as, in the words already quoted, “to leave only a scanty remuneration
to the Reporters and the publishers.” And as, between the publishers
and the Reporters,—those who create and who alone can create the
property out of which the res quocunque modo res is to be got,—how
fare the Reporters? Their profits, 1 fear, are somewhat after the
fashion of those things which come forth from between the upper
and nether mill-stones—ground to the uttermost! The following is a
description of their remuneration, as furnished to me by one who,
with adequate means of knowledge, speaks, I am satisfied, truth-
fully :—

“The persons who report now are remunerated, a few, well,—a few more,
reasonably well,—most of them shabbily,—some not at ail literally !”’

Thus it would seem that the “no cure no pay principle” has been
introduced ; and under this it may be said that reporting has become
a labour of love! Love of what? Notoriety! the Pleasure of seeing
one’s name in Print! Or, shall we suggest the more laudable object
of “ Improvement in their profession?” This would be well if these
gallant volunteers did not publish the fruit of their loving labours as
Authority; but as they do this, they are like students in anatomy
seeking to acquire a knowledge of the science by vivisection, They
are demonstrating upon the body of the living public, who reason-
ably enough cry out against the cruel operation.

If this vicious system wrought no evil but to its followers, it might
50 HISTORY OF “THE LAW REPORTS.”

be suffered to pass without notice, and be left to reward them by its
own consequences. But it does produce evil in more ways than one,
—not only in reducing the already too “ shabby” remuneration of those
who labour in the same vineyard, but in adding another element of
confusion and uncertainty to the law,and another item of cost to
the practitioner. For the most serious aspect of this matter of ex-
pense is as it affects the purchasers of Reports. The effect of com-
petition has not been to relieve the practitioner from the necessity of
purchasing the regular Reports, nor, among the various competing
irregular Reports, to establish any one series which would be sufficient
for his purpose. The consequence is, that the addition of each set of
competing Reports, though introduced with the tempting allurement
of being a little cheaper than its immediate predecessor, is no benefit
to the practitioner, but only an increased burden, unless indeed he
refuses in disgust and despair to take in the new intruder; and thus
expose himself to the risk of finding some case cited against him as
authority of which he had never heard. Itis a very favourite illusion
with those who are interested in maintaining the present system of
competition, to treat the question of expense as one which may be
judged of by taking into account only the cost -of their own series,
and perhaps one other. Thus, say they, What can any practitioner
desire more in the shape of Reports than is furnished by “The Law
Journal ” and, for example, “ The Weekly Reporter?” And they put
the case thus: The cost of these two is little more than half the cost
of the regular Reports in the Court of Chancery alone (laying aside
those of the House of Lords, Privy Council, and the Common Law
Courts); and in them the profession has a complete series of Reports
in all the Courts, including the Appellate. The Cases in “The
Weekly Reporter” are reported weekly, and with the utmost prompti-
tude, while the same cases are published in “The Law Journal” at
the longer interval of a month, thereby allowing a sufficient period
for bestowing the care necessary for ensuring accuracy; and all this
work is done by barristers! What can the public or profession want
more? To this it may be answered, If there were no other Reports
to be cited than those in “‘ The Weekly Reporter” provisionally, until
those in “The Law Journal” were published, and then the latter
only, the argument would be worth listening to. But it is obvious
that the same argument may with equal plausibility be urged by
“The Jurist,” “The Law Times,” and “The New Reports,” each for
its purpose allying itself with ‘The Law Journal; ” and the result of
this fond logic is, that the profession have four equal sufficiencies,
and of course are left burdened with three redundancies,—where one
would suffice, they are burdened with four. And, in addition, the
argument ignores the existence of that indestructible element in the
HISTORY OF “THE LAW REPORTS.” 51

question,—the regular Reports. In truth, the difference lies between
those who bear the burden and those who help to impose it. The
complaint of the one is founded upon the entire weight they have to
sustain, the others think they answer it by referring to that part
only of the weight which they separately contribute, and claim a
triumph for such sophistry !

The annual cost of the entire series of Reports, regular and irre-
gular, is now somewhere about £45, perhaps a little more, of which
the cost of the regular Reports is about £30. The result is that few
(if any) practitioners take in the whole of the series; and some few
(but I believe an increasing number) have in despair or disgust given
up taking in any, or at most confine themselves to one of the irre-
gular sets,—depending upon the opportunities for reference which
the Law Libraries of the Inns of Court and other public bodies afford.
There still remain, however, a considerable body of practising barristers
whose interest in the law as ascience, as well as their duty to themselves
and their clients, precludes from following this last example; and
though they do not take in all the Reports, feel themselves obliged
to take them in to such extent as to render the expense a grievous
burden.

My own experience, I venture to think, from inquiries I have made,
may be taken as a fair sample of the burden of the Reports as borne
by a large body of practitioners in Lincoln’s Inn. To some I know
the burden is greater, to others doubtless it is less. Of the regular
Reports, I take the House of Lords Cases, the Scotch Appeal Cases,
the Privy Council Cases, the Cases before the Lord Chancellor and
the Lords Justices, the Rolls, and the three Vice-Chancellors; I also
take the Q. B. Reports, but no other Common Law Reports. Of the
irregular Reports, I take and have taken for years “The Jurist,’
“The Law Times,” and “The Weekly Reporter,” and I admit I have
once or twice found the disadvantage of not having taken “The New
Reports.” This series, imperfect as it is, costs me about £29 12s. 6d.
per annum, exclusive of binding, and I believe I shall therefore be
within the mark if I estimate that the expense of the present system
to a great proportion of the Equity Bar is not less than £30 a year.
For another estimate I would refer to the observations of the writer in
“The Law Review,” in an article on Law Reporting, published in
1848, vol. vii. p. 223.

Not only, however, is the expense a grievous burden, but the
article, when bought and paid for, is not worth the money. The
badness of the article is part of Mr. Sweet’s complaint. Treated as
an investment, you cannot calculate upon a loss of less than 50 per
cent.—70 or 80 per cent. would perhaps be nearer the mark. Reports
are not like treatises or books of practice, the value of which is neces-
52 HISTORY OF “THE LAW REPORTS.”

sarily destroyed by a new edition or a more recent work on the same
subject. Reports affect a more permanent character, and ought to
have a more permanent value than fleeting publications. Apart,
however, from the money value, the Reports are, as Reports, intrin-
sically bad. And why? Because they are mostly prepared under
the lash of competition. The Reporters, especially those whose
Reports are published weekly, have neither the leisure nor the oppor-
tunity of access to papers which are requisite to insure accuracy,—
the wonder is, that the weekly Reports are, generally speaking, so
accurate as they are. Again, the Reporter, to make up the weekly
number, must have regard to quantity rather than quality: he has
not the proper means, is not in a proper position, to exercise a sound
judgment as to what should be reported and what not. A case which
turns only upon its special circumstances is too often, through want
of skill and experience in the Reporter, converted into a decision of
general application, and sets the law wrong. Reporters of the present
day cannot afford to do as Lord Campbell did in his day asa Reporter,
keep a private drawer for the suppression of reports of cases which
are bad law. This system of indiscriminate reporting re-acts to a
certain extent prejudicially upon the regular Reports. They are, or
fancy they are, obliged, in their own defence, to report cases which
their better judgment would suggest should be omitted. Another
result of the system is this: irresponsible and underpaid labourers
cannot be expected to be always at their post, always equally diligent
in their labours (unless, indeed, it be a labour of love!); and thus it
sometimes happens that when a Reporter is absent, the notes of a
brother Reporter are at his service, and the friendly office is of course
returned, and this convenient reciprocity has a tendency to grow into
a system. The result to the public is, that whereas they are perhaps
comforting themselves with the assurance that in a multitude of
counsellors at least there is safety, the reports of the same case which
they read and pay for several times over in the several irregular
Reports, are not necessarily the fruit of the labours of as many diffe-
rent persons, but may be, in all important particulars, the labour of
amuch less number.—possibly of only one! A system which employs
five different men to do five times over a work which only requires to
be done once, and that by one man, necessarily involves the evil at
which my present observations point, especially if the remuneration
to each man employed is shabbily less than the intrinsic value of the
labour, if properly done separately by each. I fear it sometimes, too,
happens, that the regular Reporter, pressed by his publisher for
manuscript on the one hand, and by the demands of an increasing
business on the other, finds it easier to avail himself of the imperfect
labours of his brethren of the irregular Reports, then to arrange his
HISTORY OF “THE LAW REPORTS.” 53

own notes, and himself extract from the pleadings and evidence in
the cause the proper materials for his Report. And to all these evils
I may add another, namely, the increasing unwillingness of counsel
and solicitors, in consequence of occasional loss and inconvenient
detention of briefs and papers, to allow to so many that opportunity
of access which they would willingly afford to any One Reporter.
The result, I believe, is, that the more the system is considered and
looked into, the more it will be found to work prejudicially to the
profession and the public; and experience shews that, left to itself,
it contains within itself no principle of correction in the interest of
the public. :

Before I close this division of the subject, I wish to deal with a
view of the question which I may expect will be warmly insisted
upon in support of the existing system of competition, as opposed to
any system to be founded upon exclusive privilege. The term
Privilege, it will be said, is only a disguise for an Odious Monopoly,
and that the proposal to establish one authorized set of Reports, to
the exclusion of all others, involves a want of proper regard for the
rights of property, inasmuch as it would tend to the serious injury,
perhaps destruction, of valuable existing interests, which have grown
up under a system based upon the principles of free-trade. I must
not, however, be understood to represent that these views are uni-
versally entertained. On the contrary, a reference to articles on the
subject which have appeared in “The Jurist” and “The Solicitors’
Journal” during the course of the present year, will shew that those
periodicals are prepared to meet the question, though affecting their
own interests, in a praiseworthy spirit of candour and liberality. I
shall endeavour to demonstrate that Monopoly and Free-trade have
nothing to do with the question; and that the terms as well as the
things they represent are abused by the attempt to apply either the
one or the other to a system of Law Reporting intended for citation as
authority ; and, therefore, that any existing interests which may have
grown up under such an abuse, must not be allowed to erect them-
selves into a barrier to obstruct, but on the contrary must give way
to, any change in the system which the public interest requires.
Whether they could fairly establish any claim to compensation, would
be another question, and be open to very different considerations.

Monopoly and Free-Trade, the names as well as the things they
represent, are properly applicable to that only which is the subject of
legitimate commerce; they are not applicable to anything which is
properly the function of the State. Legitimate commerce is properly
the subject of individual enterprise, and to that it should be left.
Interference by the State with that which is properly an object of
commerce, and the subject of individual enterprise, is an anomaly,
54 HISTORY OF “THE LAW REPORTS.”

unjustifiable upon principle—excusable only upon the plea of neces-
sity, or its alternative—expediency. LE converso, that which is pro-
perly a function of the State ought not to be permitted to become an
object of commerce, 80 as to be made the subject of individual enter-
prise, uncontrolled. Whatever concerns the proper promulgation of
the law, is a function of the State. Law Reporting is, in our system
of jurisprudence, an essential part of the proper promulgation of the
law ex non scripto, and therefore a function of the State. It is true,
the discharge of this function has for too long a period been neglected
by the State, and allowed of late years to become an object of com-
merce and the subject of individual enterprise. This neglect how-
ever, has not destroyed a principle—it has only perverted it ; and the
result is,—an abuse; and the consequence of that abuse,—the evils
we experience.

A strong argument against the propriety of permitting Law Re-
porting to be an object of commerce may also be deduced from the
results. The principles of free-trade, when properly applied by indi-
vidual enterprise to a legitimate object of commerce, never fail, after
fair trial, to produce, as a result, either increase in the quantity or
improvement in the quality of the article to be consumed, without
increase in cost; or an article of consumption equal in quantity or
quality, or both, at a reduced cost. The Triumph of Free-Trade is
the production of a better article and more of it at a less cost. But if
there be neither increase in quantity, nor improvement in quality, nor
reduction in cost, then are we not justified in concluding that the prin-
ciples of free-trade have been abused by an attempt to apply them to
an object to which they are not properly applicable? Now, the result
of the experience of the last thirty years, in the application of
the principles of free-trade, through individual enterprise, to Law
Reporting, as an object of commerce, has been, by an increase in
quantity, to deteriorate the article to be consumed, and at the same
time to increase the cost; to produce results the very opposite of
those which the principles of free-trade, when applied to an object
to which they are properly applicable, never fail to secure!

Again, demonstration may be supplied in another form. The sub-
jects upon which individual enterprise animated by the principles
of free-trade, would endeavour principally to operate, through its
proper agencies of capital, skill, and labour, are either the raw
material, the manufactured article, or the market for consumption.
In the case of Reports, the raw material consists of matiers of litiga-
tion which arise in Courts of Justice; they can neither be increased
nor modified, nor in any manner affected, either in quantity or quality,
or cost, by any agency of the free-trader. The raw material is pro-
duced as it were ready for use upon the spot, and the man of commerce
HISTORY OF “THE LAW REPORTS.” 55

must take it as he finds it. How stands it with the manufactured
article—the Report itself? Confessedly, this must be the work of a
privileged class. The free-trader must here admit restraint; there is
no room here for either his skill or labour; the right to exercise both
are conceded by him to the privileged class. And as to Capital, the
only use he has for it is to pay just so much of the value of that
privileged skill and labour as he finds he cannot withdraw for his
own benefit. And lastly, as to the market; this, like the raw mate-
rial, exists independently of any application of capital, skill, or labour
by the man of commerce, for its creation, development, or extension.
The market exists in the necessities of the public for aknowledge of
the law—a market which, though it cannot be increased, may, never-
theless, be most injuriously diminished by the effect of those evil con-
sequences which have resulted from permitting Law Reporting to
become an object of commerce.

A very slight consideration will also serve to shew that the term
Monopoly, as well as the thing it represents, is as misapplied to any
proper system of Law Reporting as Free-Trade. Viewed in its true
light, Law Reporting is a function of the State, and the public are
concerned in its proper discharge ; and if for this purpose it be expe-
dient that persons be appointed exclusively for the office, and their
employment be odiously termed a monopoly—as well might the term
be applied in an odious sense to the appointment of the Registrars,
nay to the Judicial Office itself! The objection is a mere ad captan-
dum argument, urged by interest as an appeal to prejudice!

I will close this part of the subject by the following familiar
passage from the pages of a Philosopher and a Jurist :—

“ Deterred by an interested clamour against innovation, from abrogating what
is useless, simplifying what is complex, or determining what is doubtful, and
always more inclined to stave off an immediate difficulty by some patchwork
scheme of modifications and suspensions, than to consult for posterity in the
comprehensive spirit of legal philosophy, we accumulate statute upon statute,
and precedent upon precedent, till no industry can acquire, nor any intellect
digest the mass of learning that grows upon the panting student; and our juris-
prudence seems not unlikely to be simplified, in the worst and least honourable
manner,—a tacit agreement of ignorance among its professors.” —Hallam, Mid.
Ages, vol. ii., p. 123.

III. I proceed, in the last place to consider The Remedy! How
the existing system may be made what it ought to be,—that is, to
secure for the public One Set of Reports which, being prepared with
accuracy and published expeditiously and cheaply, shall be fit to be
accepted as the only authentic evidence of the unwritten law.

The remedy, to be effectual, must go to the root of the evil. Now,
the evils of the present system appear to me to have sprung from the
56 HISTORY OF “THE LAW REPORTS.”

neglect of the State to provide properly for the discharge of a public
duty ; and thus it has happened that private enterprise having stepped
in to supply those public requirements which the State had neglected,
the result has been, what all experience would lead us to expect, that
private interests have become so predominant that the public require-
ments are no longer duly cared for. The remedy should therefore be
applied directly to the object of making the public interest paramount,
and the private interest subordinate and subservient. The details of
the remedy must, of course, be adapted to the exigencies of the par-
ticular case. Private enterprise, it will be seen, having converted
Law Reporting into a commercial adventure with profit for its object
has, however, not been able to make the adventure profitable merely
through its own independent agencies, but has been obliged to enlist
privilege into its service,—namely, the privilege which a Barrister
enjoys of authenticating any Report to which his name is appended.
Now, it is the unrestrained exercise of this privilege which has be-
come the proximate cause of the evil. Without the Barrister’s name
appended, the Report could not be cited as authority. It is plain,
therefore, that the evil would be corrected if the exercise of this pri-
vilege could be placed under such a control as the public interest
requires. This renders it necessary to inquire into the nature of the
privilege. Is it the privilege of the individual, which he has a right
to exercise according to his own will and pleasure; or isit a privilege
which he enjoys as a member of the Institution to which he belongs ?
If the former, then he can only be restrained in its exercise by the
interference of the Legislature. If the latter, then the restraint may
be effected by a regulation of the Institution to membership with
which the privilege is attached. A little consideration will, I think,
shew that the latter is the true nature of the privilege. Akin to the
privilege of pre-audience and liberty of speech in Courts of Justice, a
Barrister, as amicus curie, has the privilege of informing the Court
from his own knowledge and experience of any case in point; this he
may do in person when present. What is reporting but doing the
same thing in substance when absent? In the one case, the only
manner in which the privilege can be exercised, preserves it from
abuse. In the other, unfortunately, the only manner of its exercise
engenders abuse. Thus it appears that the privilege is professional
and not personal; and therefore may be controlled by the Institu-
tion, to the extent at least of preventing any exercise of it which
should be injurious to the public; for I take it that the privileges
of the Bar are not, as has been sometimes objected against them,
autocratic, and obnoxious to the charge of being monopolies, but rest for
their foundation upon considerations of public benefit. Nor could any
proposed limitation 1m the interest of the public of the privilege as
HISTORY OF “THE LAW REPORTS.” 57

now exercised be justly complained of asa hardship to any individual
barrister. Every Barrister would still be left perfectly free to exercise
his skill and devote his labour to reporting for the information of the
public. The value of such reporting depends upon its being done in
the manner best suited to those public requirements which it professes
to meet, and not upon the name of the Reporter being appended to the
report ;—the distinction will be found to lie between reporting for the
purpose of conveying intelligence, and reporting for the purpose of
recording the law. The public interest requires that both these things
be efficiently done ; but the public interest also requires that the two
be kept distinct--that the one be supplied through as many different,
channels as unrestricted competition will open —that the other be pre-
served and made authentic by persons specially appointed in the
interest of the public for that purpose. It is from the confusion and
improper blending of these two distinct public objects, that the
present evils have arisen. The proposal to restrain the exercise of this
privilege amounts to no more than this—that things which hitherto,
by an abuse, have been joined together to the public injury, should
henceforth be separated and kept distinct in the manner which the
public interest requires. The question may also properly be con-
sidered in the light in which it affects the Bar as as a body, separate
and distinct from the public generally. Thus considered, how does
the question stand? We find thata small portion of the Bar (scarce
perhaps, a twentieth part) are exercising a privilege which belongs to
the entire body in a manner which is injurious to all the rest ? Have
not the great majority who are thus injured a right to protect them-
selves by a regulation which shall control the minority? Surely they
have, or ought to have. The difficulty, however, if any exists, is only
speculative; for I believe I am well warranted in saying, certainly
with reference to the Reporters in the Courts of Equity, regular as
well as irregular, that many of them are dissatisfied with the existing
system, and would hail with satisfaction a change which would place
Law Reporting upon a footing more compatible with the independ-
ence and honour of the Bar, and better adapted to the interests of the
profession and the public. The Bar, as an Institution, being thus, as
I conceive on public grounds, invested with the privilege of authenti-
cating the Reports; and its members as a body, being legitimately
interested in having the present system changed, and the preparation
and publication of Reports placed upon a better footing, I propose
that this should now be undertaken by the Bar as an Institution of
the State; and that arrangements should be made for the proper
appointment of Reporters, to be approved of by the Judges, and that
no Reports but The Bar Reports should thenceforth be allowed to be
cited as authority.
58 HISTORY OF “THE LAW REPORTS.”

The steps to be taken for this purpose I suggest should be as
follows :—

First, that a Meeting of the Bar be called by the Attorney-General,
as the Head of the Profession, for the purpose of passing resolutions
condemnatory of the present system,—insisting upon the expediency
for a change, and approving the principle of the change proposed. As
a precedent for a meeting to be held under such auspices for an object
of general interest and importance to the profession, it may be suffi-
cient to refer to the meeting which was held some few years back in
Lincoln’s Inn Hall, at the instance of the Parliamentary Bar, to settle
a disputed point of general professional interest. ‘T'he only question
in this case would be, whether the present system of reporting could
be considered a subject of sufficient importance to the interests of the
Bar to justify the resort to a proceeding of such gravity. I shall
greatly have mistaken the views and feelings of my professional
brethren, and the interest they take in the matter, if I felt any doubt
upon this point.

To make such a meeting effective for the purpose for which I
suggest it, it would of course be essential that it should have the sym-
pathy and support of the leaders of the Bar :—This would be requisite to
give the proper weight to numbers. If resolutions to the effect above
suggested were passed at a meeting, so attended and supported as to
deserve the respect of the profession, I should then suggest that the
Benchers of the four Inns of Court be memorialized by the Meeting,
represented by the President, to concur in the necessary measures for
the appointment of a Joint Committee of the four Inns (after the
manner of the Joint Council of Education), to be called The Council of
Reporting, and to consist of fifteen members, of whom the Attorney-
General, the Solicitor-General, and the Queen’s Advocate for the time
being, should be members ea officio. The other twelve members to
be elected and appointed, three by the Benchers of each Inn,—for the
period of three years, and to be fairly selected from practising members
of each department of the Bar, without reference to standing, so as to
form a body who, from their position in the profession, would them-
selves be interested, and would also fairly represent the interests of
the rest of the profession, in establishing and maintaining the constant
efficiency of the ‘‘ Reports” :—vacancies in the body during the trien-
nial period to be filled up by the remaining members, regard being
had to the branch of practice in which the vacancy occurred ; any of
the three ex officio members vacating his office during the three years
(otherwise than by elevation to the Bench), to continue a member for
the remainder of the triennial period. I propose that this body should
act gratuitously, and that five should be a quorum. That they should
have the appvintment and removal of all the Editors and Reporters,
HISTORY OF “THE LAW REPORTS.” 59

and the management and direction of all the affairs, financial and
otherwise, relating to the printing and sale of the Reports, with power,
for the latter purpose, to delegate any part of their authority to a
Committee of their own body, and to appoint one or more paid agent
or agents. The Editors and Reporters to be subject, as to the Courts
of Equity, to the approval of the Lord Chancellor, the Master of the
Rolls, the Lords Justices, and the Vice-Chancellors, or any three of
them (the Lord Chancellor and the presiding Judge of the respective
Courts being of the quorum); as to the Courts of Common Law, to
the approval of the Lord Chancellor, the two Chief Justices, the
Chief Baron, the Judge Ordinary of the Divorce and Probate Courts,
and the Judge of the Admiralty Court, or any three of them (the
Lord Chancellor and the chief or presiding Judge of the respective
Courts being of the quorum); and as to the Appellate Courts, to the
approval of the Lord Chancellor, and two members of the Judicial
Committee as to the Privy Council, and two Law Lords as to the
House of Lords. That the Reporters so to be appointed and approved
be recognised as officers of the respective Courts, have a place assigned
to them at the Bar, and have access to and possession, for the purpose
of reporting, of all copies of pleadings, evidence, papers, and docu-
ments connected with cases to be reported, which it is in the power of
the Court to authorize or afford.

The staff of Editors and Reporters, and their particular duties,
would of course be determined upon and prescribed by the Council ;
but it should be sufficient for the purpose of ensuring the attendance
in each Court of one Reporter every day the Court sits,—the attend-
ance to be as regular and continuous as that of a Registrar,—and for
the preparation and publication in Weekly Numbers of Reports and
- Notes of Cases for the use of the profession and the public, and for
citation in Court until the more complete Reports shall have been pub-
lished. I propose that full and complete reports of cases shall be pre-
pared and submitted to the Judge, and published once in every three
months, or oftener if convenient, after the manner of the existing
regular “Reports,” so as to form separate volumes, as at present.
These Reports should be published under the joint responsibility of
the respective Editors and Reporters, and the series should be called
“The Bar Reports,” and from the time of their publication should be
the only Reports citable as authority. This last object will be effectu-
ated without the necessity of resorting to the exercise of any power
inherent in the Judges, if the Bar resolve that the privilege of
appending the Barrister’s name to a Report for the purpose of citation
as authority, be exercised in subordination to the authority of the
Council. It is only by permission of the Judges, granted in the exer-
cise of a judicial discretion as to what is for the public good, that the

F
60 HISTORY OF “THE LAW REPORTS.”

present system of citation has grown up; and the same discretion,
having regard to the same object, may, I conceive, withdraw or limit
the permission :—So that the Judges and the Bar together would have
full power to accomplish the object of making the “ Bar Reports” the
only authority to be cited.

The complete Reports should contain a copy or sufficient abstract of
the decree or order, and be accompanied with proper headings, indexes,
and digests, and, where necessary, with notes and commentaries eluci-
dating the point decided. The object should be to render these
Reports a work which will not only be a safe guide in the future
administration of justice, but also, by preventing the accumulation of
useless and mischievous matter for the future, help to promote the
study of law asa science. In my view it would be desirable that the
Editors and Reporters should be expected to devote their whole time
and attention to the discharge of their duties, or, at all events, that
the distraction of private business should not be permitted to any
extent to interfere with the regular and efficient discharge of their
duties; and that the salaries should be of an amount sufficient to
secure the continued services of men duly qualified by learning and
experience. And I should hope that the arrangements would be of
such a nature, as regards salary and prospect of professional advance-
ment, as to ensure the services of all such of the existing regular
Reporters as might be able and willing to undertake the discharge of
the more responsible duties which would be involved in the new
system, and also of as many of the other gentlemen having experience
in reporting who might be willing to offer their services, in preference
(where qualifications were equal) to barristers who had not been so
employed. The number of Reporters required would, I conceive, very
greatly exceed the present number of the regular Reporters; and, in
addition, the services of at least three responsible working Editors
would be required :—And as their qualifications and position would
be higher and their responsibility greater, their salaries should be
higher also.

I will now consider how funds will be raised to support such a
system as I propose. It will be observed that the scheme rests for its
foundation upon this,—that “The Bar Reports” be the only Reports
cited. If that be not secured, the proposal would in effect be only
adding a seventh plague to the six already existing. I assume, also,
that this exclusive privilege will be preserved from abuse by the
qualifications of the persons to be appvuinted as Editors and Reporters ;
the responsible and honourable position they will occupy in the pro-
fession, and the check the Council of Reporting will always be able
to exercise over them; and that by these means this result will be
realized,—namely, that the Reports will be regularly and properly
HISTORY OF “THE LAW REPORTS.” 61

prepared and published in such a manner as to command the con-
fidence of the Judges and the Bar, and satisfy the wants of the pro-
fession and the public. Upon these assumptions (and my confidence
in the ability and willingness of the Bar, leads me to believe the
result I depend upon will be realized), I should not propose to adopt
a scale of prices which would enter, or have the appearance even of
entering, into competition with any periodicals which are established
for the purpose of supplying the profession and the public with
information as to the proceedings in Courts of Justice. I conceive
that ‘The Bar Reports,” having a distinct and higher object, would
assume a place among law publications as a standard work of the
highest importance and merit, and be purchased by the profession and
public accordingly, and consequently be self-supporting.
I should suggest the following scale of annual subscriptions :—

£ 8. d.
For the entire Series . . . . . . ) . 1010 O
Courts of Chancery and Appellate Courts . 6 6 0
Courts of Common Law and Appellate Courts 6 6 0
Courts of Chancery . a GN ee Se oe Be SOO
Courtsof Common Law . ..... . 5 5 0
The Appellate Courts 4 4 0

Other subdivisions might be made to suit the wants of particular
classes. The weekly publication should be considered as part of the
entire series only. If taken with any of the subdivisions, I would
propose that a charge of one guinea should be added. Subscriptions
paid in advance should be entitled to a liberal deduction.

As the scheme is based upon the expectation of being self-support-
ing, and to be independent of any grant of public money, I think the
Government may fairly be expected to take a sufficient number of
copies for the use of the various functionaries connected with the
administration of justice at home and abroad,—upon the same prin-
ciple as Acts of Parliament are now supplied to magistrates and
various public bodies. The charge to the Government should be at a
liberal discount in proportion to the number taken.

I would suggest that the printing and sale should be conducted
upon one of these two plans: either by contract with some printer of
established reputation and sufficient capital, and a Manager at a salary ;
or by the establishment of a Public Press, to be called “The Inns of
Court Press,” to be established by Charter, with a capital to be pro-
vided by subscription or in agreed proportions by the Inns of Court,
and repaid with a moderate rate of interest (say 4 per cent.) out of
profits; to be under the management and control of a Committee of
the Council of Reporting and a Manager at a salary and a commission

F 2
62 HISTORY OF “THE LAW REPORTS.”

upon the proceeds of advertisements. The Press to be at liberty to
undertake also the printing and publication of works on legal subjects
by any member of an Inn of Court, under the control and supervision
of the Committee ; the object being to secure to authors a larger and
fairer share in the profits of their labours than they are now able to
obtain.

The funds to be realized by the sale of the Reports and profits of
the Press (if established) should be applied, after payment of all
expenses of printing and management, to the payment of such liberal
salaries to the Editors and Reporters as the Council should fix, and
then to the formation of a Guarantee Fund (the maximum to be fixed
by the Council) to be applied in payment of such compensation to
existing interests affected by the proposed arrangements as the Council,
may deem it just and equitable to award; and also for superannuation
allowances to any Editors or Reporters who, through sickness, acci-
dent, or infirmity, might be disabled from continuing their labours.
If, after answering these several purposes, any surplus should remain,
I propose that the benefit of that surplus should be given to the
Public, either in the form of supplying Government copies gratis or a
general reduction of price, or in such other way for the public benefit
as the Council may direct,—so that commercial profit be thoroughly
eradicated from the system.

I do not pretend within the compass of this letter to do more than
state the nature and principle of my proposals, and give a very
general outline of their leading objects. The duty of preparing the
necessary details would, if the proposals should be thought worthy of
being adopted, devolve upon the Council of Reporting, and the
arrangements they would sanction and mature, would require the
confirmation either of a Charter or an Act of Parliament, probably of
both.

In the proposals I have ventured to make, my object has been to
aid in redressing a public grievance, through the instrumentality and
agency of the Bar (in preference to the external authority of the
Government or the Legislature), by regulating, in a manner calcu-
lated to advance the public interest, the exercise of a privilege vested
in the Bar directly connected with Reporting. I have adopted for
this purpose the instrumentality and agency of the Bar because I
believe not only that its own legitimate interests will be advanced
and secured in a manner consistent with its independence and honour,
but because I believe also that the elements of which the Council of
Reporting will be composed, the nature of its powers, and the sanction
under which they will be exercised, will be such as to afford the best
security for a wholesome exercise of patronage, and prevent the
conscious security of an official appointment degenerating into the
HISTORY OF “THE LAW REPORTS.” 63

languor of supineness ; thus correcting as far as possible the evil
tendencies of privilege without incurring the actual evils of competi- ~
tion.

Such as the proposals are, J now submit them to the consideration
of the profession and the public.

Nihil simul inventum est, et perfectum!

Before I conclude, I must avail myself of the opportunity this
publication affords of gratefully acknowledging the various communi-
cations with which numerous professional brethren have kindly
favoured me in answer to the suggestions which, in May last, I distri-
buted for private circulation among the Bar; several of them will
recognise in this paper the use I have freely made of their views and
observations. And I beg particularly to thank Mr. Beavan and Mr. De
Longueville Giffard for very valuable assistance and information, and
also Mr. Nathaniel Lindley for a most useful Paper on Legal Reports,
which, although in some minor matters it varies a little from my
suggestions, I have, with his permission, printed as an Appendix to
this letter, considering that it represents opinions now very generally
entertained by the Chancery Bar.

In conclusion, thanking you, Sir, for your courtesy in permitting
me to make this form of address the medium of communicating my
views to the profession and the public, and with profound respect for
your distinguished attainments as an Advocate and a Jurist,

I subscribe myself with great sincerity,
Your obedient faithful servant,

W. T. S. Daniet,
10, Old Buildings, Lincoln’s Inn.
12th September, 1863.

APPENDIX.
Paper oN LecaL Reports, py NATHANIEL LINDLEY, Esq.

THE object of a Report is, not to inform the public of all that passes
in a Court of Justice, but to preserve a record of what is decided to be
law ; and the object of having this record is, to facilitate the study of
the law itself.

Hence, the duty of a Reporter is widely different from that of a
newspaper writer on the one hand, and from that of the Registrar of
the Court on the other. The compositions of the first are not intended
for study, and the duty of the last is only to register the final result
of each particular case which is brought before the Court.
64 HISTORY OF “THE LAW REPORTS.”

Reports, to be good, must be so both as regards the subjects re-
ported and the manner in which the Reports themselves are framed.
With respect to subjects reported, care should be taken to exclude—

1. Those cases which pass without discussion or consideration, and which
are valueless as precedents.

2. Those cases which are substantially repetitions of what is reported
already.

On the other hand, care should be taken to include—

1, All cases which introduce, or appear to introduce, a new principle or a new
rule.

2. All cases which materially modify an existing principle or rule.

8. All cases which settle, or materially tend to settle, a question upon which
the law is doubtful.

4, All cases which for any reason are peculiarly instructive.

With respect to the manner in which the Reports should be
framed—

1. They should be accurate.

2. They should be full, in the sense of containing everything material and
useful.

3. They should be as concise as is consistent with the above objects.

In particular they should show—

. The parties.

. The nature of the pleadings.

. The essential facts.

. The points contended for by Counsel.

. The grounds on which the judgment is based.

. The judgment, decree, or order actually pronounced.

arr-wWN HE

Reports which give the judgment with little or no information
respecting the pleadings, the evidence, or the arguments, are of no
real utility ; whilst those, on the other hand, which give the plead-
ings, the evidence, and arguments at unnecessary length, are open to
the objection, that they entail waste of money, time, and trouble on
those who have to procure and read them. Both classes of Reports
are discreditable to their authors; for both are the result of idleness
and indifference to the wants of those for whom the Reports are
intended.

It has, indeed, been plausibly urged, that the judgment itself should
contain a statement of the facts deemed by the Judge to be material
to be established, as well as of the reasons on which he decides upon
them, and that a good Report should give the judgment only. But
even if all judgments were as elaborate as, according to this view,
they should be, it would still be found that a Report of the judgment,
HISTORY OF “THE LAW REPORTS.” 65

and no more, would exclude much matter of the greatest value. It
does not follow that what alone is material to the judgment, is alone
worth putting into the Report. Much is to be learned by a study of
the pleadings, even although there may have been no occasion for the
Judge pointedly to allude to them; and it must never be forgotten
that for practical purposes it is of the greatest advantage to know in
what form each case was brought before the Court. In many cases,
however, such matters would naturally be passed over by the Judge,
whose attention is, or should be, concentrated on those points on which
the case, when mastered, is found to turn.
With respect to the publication of Reports, it is desirable—

1. That they should be published as speedily as is consistent with a con-
scientious discharge of the Reporter’s duties.

2. That they should be printed in clear type, on good paper, and be of a
convenient portable size.

3. That they should be accompanied by good indexes and marginal headings.

4, That they should be sold for the lowest price which is consistent with the
payment of the expenses of their publication.

Having stated the requisites to a good Report, it is necessary to
consider how their attainment may be best secured.

In any other country but this, it would be considered as much the
duty of the Government to publish the decisions of the Superior
Courts, as to publish the enactments of the Legislature. Both are in
this country of equal importance to the public; for, without the study
of both, no useful knowledge of English law cau be acquired. Nor
are there any disadvantages necessarily incidental to such a measure ;
for the Reports would certainly pay their own expenses, and the
Reporters might be kept independent of Government and judicial
influence, and at the same time efficient, by vesting the power of
removing them, if not also the power of appointing them, in a
Committee of the members of the Bar.

But without any Government assistance at all, a series of Reports in
every respect satisfactory may be secured by alittle exertion. The pro-
fession is just now unquestionably suffering from a plethora of Reports ;
and it is felt to be desirable, if possible, to have only one set, and to
have it with reasonable expedition, and at a reasonable cost. There
are apparently two modes of obtaining this object without invoking
the aid of Government. One mode is, to suppress what are called
the irregular Reports, and arbitrarily to allow one set only to be used.
The other mode is, so to improve the irregular Reports, as to render
it unnecessary to have any others. The first of these modes would be
unjust, inexpedient, and impracticable, whilst the second is open to
none of these objections. The existence of the irregular Reports is
owing to the circumstance that the regular Reports do not supply the
66 HISTORY OF “THE LAW REPORTS.”

wants of the public; and experience shews that the competition of the
irregular Reports is not sufficient to secure any permanent improve-
ment in the regular Reports. The result of the present system unde-
niably is, that good Reports are to be had at a moderate price; and a
stranger might well ask, what more do you want? The answer is by
no means obvious, and would not occur to any one who was not
practically acquainted with the peculiar position of what are called
the regular or authorized Reports.

The authors of these Reports enjoy advantages which the others
do not. The advantages consist mainly in greater facilities in obtain-
ing papers, and in some cases in a revision of the sheets by the Judges.
Whatever the advantages, however, may be, it is certain that a very
considerable part of the persons who require to take in the Reports,
feel obliged to take those which are authorized. However bad they
may be, and however excellent others may be, the authorized Reports
must practically be had by a certain class of the Report-consuming
public. The authorized Reports, however, are by no means what they
should be. They are all very expensive—many of them are shame-
fully in arrear, and some of them are disgracefully done. Hence,
there are just grounds of complaint against them, and a strong desire
is felt for improvement. Free competition in Reporting does not
remove the evil; and the reason obviously is, that the authorized
Reports enjoy advantages which their rivals do not. If all the
authorized Reports were cheap, good, and not unreasonably behind-
hand, the complaints now so loud and just would cease to be heard.

To improve the regular or authorized Reports, is, therefore, the
great thing to be accomplished. To do this, all that appears to be
necessary 1s—

1. To have Reporters appointed and removable by the Judges or by a
Committee of the Bar, or by the Judges and a Committee of the Bar
jointly. :

2. To give those Reporters facilities of access to all pleadings and other docu-
ments forming part of the records of the Court. It would be well if all
documents furnished to the Judge should, when he has done with them,
go to the Reporters for a time.

8. To require the Reporters to publish their Reports periodically, say once a
month, and never to be more than a month in arrear.

4, To fix the price of the Reports at as low a sum as would suffice to pay the
expenses of their publication, including a liberal remuneration to the
Reporters.

There can be very little doubt, that if the Reports were what they
should be, they would, although sold at a comparatively low price,
produce amply sufficient to pay their expenses ;—and if a tolerably
large minimum demand could be insured, as it might be by opening
HISTORY OF «THE LAW REPORTS.” 67

subscription lists, there would be no difficulty whatever in finding a
publisher who would advance what might be necessary to defray the
current expenses of publication. Should there, however, be any such
difficulty, it would be easily removed by allowing subscriptions to be
paid in advance: a subscription, if paid in advance, should be lower
than if paid afterwards.

It may be urged as an objection to this or any similar plan, that it
would still leave room for Reports published more speedily, though
with less care, than the authorized series. This would to a certain
extent be true; butit would not be a serious evil. For the author-
ized Reports would naturally be preferred to all others for permanent
use; and the irregular Reports would cease to be of any real value,
except during the short interval which would elapse between the
decision of a case and the appearance of a Report of it in the author-
ized series. The present nuisance of having several concurrent sets
of permanent Reports, would, however, be removed; for if the
authorized Reports contained all the cases worth reporting, there
would be no occasion to preserve the other Reports. The cases to be
found in them and not in the authorized series, would, ea hypothest, be
worthless, and the citation of them would naturally cease.

My letter to Sir R. Palmer, as printed, got into moderate
circulation, and was received with sufficient favour to justify an
attempt to give effect to the suggestion contained in it of calling
a meeting of the Bar, to consider the question under the authority
of the Attorney-General. At the time the letter was published
(12th of September, 1863) Sir William Atherton was Attorney-
General. His death occurred shortly afterwards; and in the
October following Sir Roundell Palmer was gazetted Attorney-
General and Sir Robert Porrett Collier Solicitor-General.. Under
these circumstances, on behalf of all who had interested them-
selves in the question and not on behalf of myself only, I sent
to Sir R. Palmer, as Attorney-General, a letter of which the
following is a copy :—

10, Old Buildings, Lincoln’s Inn,
80th October, 1863.
Dear Mr. ATTORNEY,

; May I take the liberty of asking whether if a requisition
numerously signed by Members of the Bar requesting you to calla
meeting of the Bar for the purpose of considering the present state of
Law Reporting with a view to a change of system were presented to
you, you would be disposed to accede to the request. I make this
68 HISTORY OF “THE LAW REPORTS.”

application because none of us who take an interest in the matter and
desire the Meeting would wish to initiate an abortive proceeding.
Should you intimate your willingness to accede to such a request, I
would take all possible care that your doing so should not be regarded
as an intimation of any opinion on your part either as to the existence
of any evil in the existing system calling for a change or as to the
necessity or expediency of any change that might be suggested,
Allow me to offer you my sincere congratulations, and to subscribe
myself,
Your obedient faithful servant,

W. T.S. Dantet.
The Attorney-General.

On the following day (the 31st of October) I received from the
Attorney-General the following reply :—

Lincoln’s Inn,

October 31st, 1863.
Dear Dantizt,

I must first thank you for your kind congratulations, and next
for your pamphlet, which is marked by your usual ability.

It would, I think, depend very much upon the number and character
of the signatures whether I should feel myself justified in inviting the
Bar to meet in compliance with such a request as that which you
suggest. The subject (as far as I know) is one over which no control
has ever yet been asserted on the part of the Bar, although formerly
it was under the control of the Judges. Nevertheless the Bar have
undeniably an important interest in it. I do not think that the
Attorney-General should convene a meeting on such a subject except
in deference to a strong expression of opinion; but I have not myself
any objection in principle to dving so if there should appear to be
anything like a general wish for it.

Believe me,
Yours ever sincerely,

RouNnDELL PALMER.
W. T. 5. Daniel, Esq., Q.C.

Immediately on receipt of this reply, acting in concurrence
with members of the Bar who approved the course I was taking,
I prepared a memorandum of which the following is a copy :—

To Sir Rovunpett Patmer, Kwnicut,
Her Majesty’s Attorney General.

We, the undersigned members of the English Bar, request. that you
will be pleased to call a meeting of the Bar at such time and place as you
HISTORY OF “THE LAW REPORTS.” 69

shall think proper, for the purpose of ascertaining the opinion of the
Bar as to the existing system of Law Reporting with a view to the
amendment thereof.

Dated this day of November, 1863.

In order to facilitate obtaining signatures to the requisition, I
had eleven copies prepared on separate sheets, which were divided
between myself and those members of the Bar who volunteered
their assistance. The date was left blank, to be filled in when
the sheets should be returned to me with signatures; and I signed
my name to each of the eleven sheets by way of authentication.
These eleven sheets were returned to me on the 13th of November,
1863, and the date was then filled in and my name struck out of
all the sheets but one. On the following day I presented the
sheets as signed to the Attorney-General. He carefully looked
through them; and then remarked that, although they were
sufficiently representative of the Equity Bar and the body of
Conveyancers, he saw but few names of members of the Common
Law Bar; and on that account he did not consider the signatures
obtained sufficiently representative, and returned me the signed
sheets. I then explained that I had not myself seen any of the
leaders of the Common Law Bar, but if he would suspend his
judgment I would myself go down to Westminster Hall and see
how far the leaders, and the Common Law Bar generally, sanc-
tioned the request for a meeting of the whole Bar, and would
ascertain and report to him what I found to be the feeling of the
Common Law Bar upon the subject. The Attorney-General
kindly consented to this request, and thereupon I took the
earliest opportunity of going to Westminster Hall, and there had
the good fortune to meet with Mr. Serjeant Pulling, Mr., now
Mr. Justice, Field, and Mr. Serjeant, afterwards Mr. Justice,
Hayes, and others, who approved the request for a meeting. I
had the signed sheets with me, and left some of them with them
to get signed. Those sheets were afterwards returned to me on
the 18th of November, with the signatures of twenty-six leaders
of the Common Law Bar, and many more juniors; and on that
day I sent the requisition, so signed, to the Attorney-General,
accompanied by a letter, of which the following is a copy :—
70 HISTORY OF “THE LAW REPORTS.”

10, Old Buildings, Lincoln’s Inn,
18th November, 1868.
Dear Mr. ATTORNEY-GENERAL,

I beg now to hand to you the requisition of the Bar requesting
you to convene a meeting on the subject of Reporting—you will find
appended to the papers the signatures of 382 Members of the Bar, and
amongst them those of the leaders at the Equity Bar with only two
exceptions; also those of twenty-six leaders at the Common Law Bar,
a list of which accompanies. This list contains the name of Mr. Phipson,
whose signature is not appended to the requisition. He is now, I
believe, absent from London through ill health, but I inclose a letter
which he wrote to me upon the subject after perusal of my pamphlet,
from which you will see that he approves of my suggestions, and par-
ticularly of the action I proposed through the Attorney-General.

In consequence of what fell from you on Friday last as to the feel-
ing of the Common Law Bar upon the subject, I have endeavoured by
personal communication at Westminster Hall to ascertain what that
feeling is. And as far as I can ascertain it I believe it to be divided.
I think there is much more of indifference than of any other feeling.
With some there is an objection on the ground that any such change
as that suggested would interfere hardly with existing interests, espe-
cially those of the younger Barristers who now make some income by
reporting. Others object on the ground that competition with all its
evils is better than an exclusive system in any shape ever can be.
Others there are, and I think not a few, who admit the public mischiefs
of the present system as fully as the Equity Bar, and would desire
some such change as that suggested, but are not zealous about it,
because individually they find that their professional duties do not
oblige them to take more than one set of Reports, and “The Law
Journal ” satisfies their requirements. Even with the objectors, how-
ever, I did not ascertain that they went so far as to object to a Meet-
ing being called to discuss the question, but rather wished it, though
they would not actively promote it.

I may add that with a few exceptions the authorized Reporters and
those connected with “‘ The Law Journal” have not signed, but I feel
justified in stating that their not signing is not attributable to any
feeling of hostility, but rather to a desire to be strictly neutral.

You will observe, I doubt not, the number of leading Juniors at
both Bars, and also the number and names of the Conveyancers who
have signed.

May I venture to hope for a favourable reply, and that at as early
a period as you may find yourself able to give the subject your
attention.

Your obedient faithful servant,

The Attorney-General. W. T. S. Dantet.
HISTORY OF “THE LAW REPORTS.” 71

On the following day (the 19th of November) I received from
the Attorney-General a letter, of which the following is a
copy :—

Lincoln’s Inn, November 19th, 1863.
Dear Daniczt,

I have to acknowledge the receipt of your letter of yesterday
with the requisition of the Bar requesting me to call a Meeting on the
subject of Reporting ; and in reply I beg to say that I shall be happy
to call a meeting as requested, and shall be glad to hear from you on
what day, and at what time you think it will be convenient for the
Meeting to be held. I think that the Hall will be the most suitable
place, and it will be desirable, therefore, to ascertain if the use of it
can be granted for the purpose.

I should mention that the Privy Council will begin to sit on Thurs-
day, the 26th, and if the arrangements for the proposed Meeting will
not allow of its being held before that day, I should be glad to have it
fixed for as late a time in the day as it conveniently can be.

Believe me,
Yours very truly,

RoonpeLu PAaLMer.
W. T. 8. Daniel, Esq., Q.C.

On the 21st of November the Attorney-General sent to me a
notice calling a meeting of the Bar for the 2nd of December, of
which the following is a copy :—

Meetine or THE Bar.

A Requisition having been presented to me very numerously signed
by Members of the Bar, by which I am requested to call a Meeting of
the Bar at such time and place as I shall think proper for the purpose
of ascertaining the opinion of the Bar as to the existing system of
Law Reporting with a view to the amendment thereof: I do hereby,
in compliance with the said Requisition, invite the Members of the
Bar to meet by permission of the Treasurer in the Dining Hall of
Lincoln’s Inn on Wednesday, the 2nd of December next, at half-past
four o’clock in the afternoon for the above mentioned purpose.

(Signed) Rounpett Patmer,
Attorney-General.

In the interval between the 19th and 21st of November the
consent of the Treasurer to the use of the Hall for the purpose of
the meeting had been obtained by me.

The number of Barristers who signed the requisition to the
72 HISTORY OF “THE LAW REPORTS.”

Attorney-General to call the meeting was 382, and, for the pur-
pose of preserving a record of their names, I give the following
list :—

To Sir RounpEett Pater, Knt.,
Her Majesty’s Attorney-General.

WE the undersigned Members of the English Bar request that you
will be pleased to call a meeting of the Bar, at such time and place as
you shall think proper, for the purpose of ascertaining the opinion of
the Bar as to the existing system of Law Reporting, with a view to
an amendment thereof.

Dated this 13th day of November, 1863.

FitzRoy Kelly.

E. B. Denison.

J. Hinde Palmer.
John Fraser Macqueen.
E. Bazalgette.

W. M. James.

W. A. Collins.

8. B. Toller.
Henry W. Oole.
W. R. Grove.

J. G. Phillimore.
John Baily.

F. Shapter.
Richard Baggallay.
C. Jasper Selwyn.
Richd. Malins.

T. W. Willcock.
Josiah W. Smith.
R. Paul Amphlett.
Thos. W. Greene.
Richd. D. Craig.
James Bacon.
John Osborne.

H. M. Cairns.
Arthur Hobhouse.
Charles Hall.
James Dickinson.
Thos. H. Terrell.

J. J. Hamilton Humphreys.

E. Leigh Pemberton.
Francis Roxburgh.
Geo. Goldsmith.
John Sheffield.

R. G. Welford.

P. M. Laurance.

John Cutler.

Fredk. A Burgett.
Fred. Dumergue.
Alex. Pulling.

H. W. Sotheby.
Lewin Taverner.
Arthur Symonds.
Newton R. Smart.

G. Murray.

James T. Hopwood.
F. Vaughan Hawkins.
Charles 8. Roundell.
Granville R. Ryder.
John Spankie.
Michael R. Barry.
Edward C. Browning.
Daniel C. Lathbury.
Leonard B. Seeley.
Fras. H. Appach.
Charles Francis Trower.
Thos. Bates,

Alfd. Hill.

W. W. Kerr.

8. H. Boult.

J. Ignatius Williams.
Arthur P. Whately.
George E. Cottrell.
Edward Hedge.

F. Hoare Colt.
Athelstane Willcock.
J. Sayer.

E. W. Stock.

8. H. Burbury.
Marcus Martin.

R. Ryder Dean.
HISTORY OF “THE LAW REPORTS.”

J. T. Humphry.
Thomas Henry Haddan.
W. R. Ellis.
Henry Fox Bristowe.
Arthur John Wood.
John Digby.
G. Denman.
(Only as thinking the matter fit to
be discussed.)
W. C. Beasley.

G. M. Giffard.
Alfred Hanson.
Ford North.

Henry W. Busk.
W. dH. Bagshawe.
Geo. Sweet.

W. Mackeson.

J. R. Kenyon.
Henry Cotton.
Benjamin Hardy.
George Lake Russell.
H. R. Vaughan Johnson.
O. D. Tudor.

W. R. F. Boyle.
Wn. Park Dickins.
Wn. W. Faber.
Fielding Nalder.
Ben. B. Swan.
Charles P. Phillips.
Wn. Freeman.
Jasper K, Peck.
Homersham Cox.
C. H. Russell.

C. W. Bardswell.
William B. Heath.
Edward Dunn.

W. H. Torriano.

H. T. Erskine.
Horace Davey.
Richd. 8. Tripp.
Charles Pontifex.
Fredk. Stallard.

G. 8. Law.

Wn. Cracroft Fooks.
Francis Webb.
Arthur Kekewich.
Charles Parke.

73

J. C. Heath.

J. E. Bright.

E. Chisholm Batten.
Frans. 8. Reilly.

H. Hopley White.
Thomas Chambers.
H. Hawkins.
William Field.

T. Dunn Salmon.

Wilson Hetherington.
Thos. Stevens.

George Simpson.

T. W. Wiglesworth.
Graham Hastings.
Alexander Dauney.
W. H. Terrell.

F. J. Wood.

C. Cecil Trevor.
Edwd. Cutler.

J. N. Goren.

H. Pace.

George R. Harding, Junr.
8. James.

B. Babington.

Fredk. Currey.

W. B. Glasse.

Francis F. G. Walparsch.
G. Osborne Morgan.
Jas. Annes Young.

C. Grey Wotherspoon.
John B. Karslake.
Bassett Smith.

D. Logan.

J. Francis Chance.
John H. Gough.

R. E. Cumberland.

J. Underhill.

E. Comyn.

T. H. Goodwin Newton.
Charles Kent.
Richard Searle.

James F. Jeffrey.

R. Griffith Williams.
E. Callaghan.

John L, Tatham.
Rickman Godlee.
74 HISTORY OF “THE LAW REPORTS.”

J. B. Braithwaite.
Edward Harrison.
Simpson Edwards.
A. G. Marten.

Joseph W. Chitty.

J. H. Taylor.
Harris Prendergast.
C. Locock Webb.
Thomas H. Fischer.
C. T. Simpson.

J. Lorence Bird,

TT. Lewin.

E. J. Bevir.

J. L. Kettle.

W. T.S. Daniel.

L. Mackeson.
Joshua Williams.
W. P. Jolliffe.

E. K. Karslake.
George Druce.
Edward F. Smith.
Frank W. Bush.
Thos. C. Renshaw.
C. M. Roupell.

F, P. L. Hallett.
John Westlake.

F. W. G. 5. Everitt.
Henry ©. Phear.
Mark Dewsnap.
Henry Stevens.
Edgar Rodwell.
John Rendall.

C. M. Elderton.

E. L. Nugent.
Frederic C. Rasch.
C. Chapman Barber.
John Young Kemp.
G. Jessel.

Edward Bury.

Geo. Little.
Thomas Stevens.

James Pearse Peachey.

J.C. W. Buxton.
Rd. D. M. Sandys.
GC. G. Prideaux.

Robert R. A. Hawkins.

H. Sargant.

Stephen Soames.
Hunter Rodwell.
Hy. Udall.

Robt. Hy. Hurst.

George N. Colt.

E. T. Holland.

T. C. Blofeld.

John Walker.

M. Archer Shee.
W. J. Bovill.
Thomas Webster.
F. G. A. Williams.
Edward Lloyd.

C. Stewart Drewry.
C. Clement Berkeley.
Gordon Whitbread.
T. Arch. Roberts.
Edw. Fry.

F. A. Bedwell.
Edward E. Kay.

J. E. Woodroffe.
Edmd. Beales.

J. F. Schomberg.
J. Surrage.

H. Chance.

Henry R. Woodhouse.
T. 8. B. Eastwood.
Springall Thompson.
William Atkin.
Henry Casson.
Thos. Platt.
Arthur J. Wigram.
W. Knox Wigram.
J. Henry Dart.

KE. Macnaghten.

R. W. L. Forster.
Leonard Field.
Thos. C. Briggs.
Edward Webster.
Arthur Burrows.
J. 8. Darnbrough.
Hilton T. Jenkins.
J. Wardo-Dobbin.
Marshall Hall.

W. Smart.

Il. C. Folkard.
HISTORY OF “THE LAW REPORTS.” 75

W. W. Barry.
W. J. Tapp.

W. F. Rae.

J. Boyd Kinnear.
Pryce A. Major.
George Waugh.
R. C. Christie.

Hans Busk.

Benson Blundell.

W. Powis.

Wr. Hosack.
William D. Oliver.

G. F. Speke.

R. Watters.

Alfred Wills.

Henry Matthews.

W. J. Bernhard Smith.

Alfred Waddilove, D.C.L.

R. Stuart.

Robert Phillimore.
Robert Lush.

H. Manisty.

G. Hayes.

Fred. O'Malley.
John C. F. 5. Day.
Wm. Baliol Brett.

Edward James.

C. Hoggins.

Stephen Temple.

J. Monk.

J. D. Coleridge.

A. F. O. Liddell.

fi, J. McIntyre.
Markham Law.
Joseph Wm. Dunning.
George Mellish.

W. W. Karslake.

E. C. Clark.

Henry Thos. Salmon.
Richd. 5. Ferguson.
E. T. Smith.

J. 5. Godfrey.

 

James J. Aston.

B. Forbes Mosse,
Henry M. Dunphy.

Is. P. Wood.

Charles Wood.

George Miller.

Henry T. J. Jenkinson.
A. Gallway.

Vernon Lushington.

John F. Villiers.

G. W. Hastings.

A. Cleasby.

Arthur Collins.
Morris 8. Oppenheim.
G. Harry Palmer.
Wm. Grantham.

B. T. Williams.

W. D. Gardiner.

Dec. Sturges.

John Rigby.

Arthur Dixon.

Daniel Jones.

James Stirling.

Charles B. Locock.

James Charles Whitehorne.
T. Tindal Methold.
Montague Smith.
76 HISTORY OF “THE LAW REPORTS.”

ve
John W. Rooth. Wn. Pearson.
John Simmonds, Wm. D. Evans.
W. W. O’Brien. Francis Housman.
S. Haywood Blackmore. H. F. Shebbeare.
Thos. Randle Bennett. C. J. Shebbeare.
J. E. Palmer. Edwin Ward.

8.
A. G. Codd. C. T. Smith.
John A. Russell. Douglas Brown.
W. P. Dymond. Charles Boyle.
David Keane. Gordon Allan.
J. E. Davis. J. B. Phear.
Henry Buller. J. F. Collier.
F. J. Smith.

9;
W. M. Best. W. Brown.

10.
Clem. T. Swanston. Nathl. Lindley.
A. C. Eddis. 8. M. Martindale,
John Pearson. W. H. Townsend.
Fredk. C. J. Millar. G. Horsey.
C. R. Freeling. Steph. Cracknall.
Francis Nichols. W. Worsley Knox.
William Lensdale. William Stebbing.
Edmund James.

11.

A. Edgar.
Josiah Rees.

De G. Dax.

The following is a copy of the names of the twenty-six leaders
of the Common Law Bar, which I handed to the Attorney-General,
as having signed the lists, with a reference to the lists they
severally signed :—

LEADERS OF THE COMMON LAW BAR WHO HAVE SIGNED.

The Queen’s Advocate (5).

W. R. Grove (1).
Sir FitzRoy Kelly (1).

J. B. Karslake (2).
HISTORY OF “THE LAW REPORTS.” 77

Montague Smith (6). G. Denman (1) (only as thinking the
J. D. Coleridge (6). matter fit to be discussed).
Edward James (Attorney-General for Geo. Mellish (6).
the Duchy of Lancaster) (6). A. Cleasby (5)
Stephen Temple (6). Robt. Lush (5).
J. Monk (6). H. Manisty (5).
C. Hoggins (6). Serjt. Hayes (5).
A. F. O. Liddell (6). Fredk. O’Malley (5).
Hunter Rodwell (2). W. Baliol Brett (5).
The Common Serjeant (1). T. W. Phipson (letter).
J. Geo. Phillimore (1). Dr. Waddilove (5).
H. Hawkins (1). Serjt. O'Brien (7).

N.B.—The numbers refer to the paper on which the signature will
be found.—W. T. 8. D.

The meeting was duly held at the time and place appointed.
The Hall was well filled: the numbers were estimated at about
700. The intention to hold the meeting, and its object, had
been noticed as a matter of professional interest in some of the
London daily papers, especially in “The Daily News” of the 30th
of November, and “The Times” of the 2nd of December.

The article in “ The Times” is worth perusal, and, therefore, I
print it.

The Attorney-General has, we are informed, called a meeting of the
English Bar to consider the question of ‘‘ Law Reporting,” and the
meeting is to be held this day. So unusual an occurrence ought to
attract public attention, for we may depend upon it that when the
lawyers are all met together there are outside interests atstake. It is
not for nothing that all the cells and cupboards and attics that are
clustered round Westminster Hall and inside Lincoln’s Inn are sending
forth their frequenters to one spot to-day. It must be a very practi-
cally felt evil which could induce so over-worked a lawyer as the
Attorney-General to give himself the trouble of attending such a
gathering. If there be an evil of such great moment pressing upon
the lawyers, we may be sure that it is also pressing upon us laity ; for
the lawyers are not likely to bear any more of it than they cannot
contrive to shift off their own shoulders. Lord Westbury some time
since gave us a glance at the system, and its effects upon general
interests, when he publicly and deliberately said that “No one can
tell with certainty whether a particular case which he finds reported,
and which is supposed to govern the particular case in which he is
interested, will or will not be followed by the Judges.” Nothing can
be worse than this. If recorded cases are but pitfalls of bad law, such
a dangerous labyrinth may be puzzling to the lawyers, but it must be

G2
78 HISTORY OF “THE LAW REPORTS.”

death to the clients. We shall do right, therefore, to regard with
some watchfulness the proceedings of the learned body who are to-day
to consult about their interests and ours.
The grievance is this. The decisions of the Judges, except as to
the plaintiff and defendant, are at present mere air. This air passes
through twenty different trumpets, and gives twenty different sounds.
There is a diversity of reports of every case, and there is no authority
for any one of those twenty. Where, as in ninety-nine cases out of a
hundred, the Judges give verbal judgments, a strong phalanx of legal
gentlemen each makes his note of that judgment, and these notes all
differ from each other. All these are printed in serials more or less
elaborate and dilatory or rapid and superficial, and when they come
to be quoted as precedents the Judges make no ceremony of disavow-
ing any which they dislike and protecting their own consistency at
the sacrifice of the reporter. This produces not only unseemly dis-
cussions between Bar and Bench, but also great uncertainty in the
rights of persons. Just as the Monte Testaccio at Rome is made up of
pieces of worthless potsherd, the remnants of the broken utensils of
many generations, so our mound of modern English law is made up
much less of hard, rocky statute law than of the refuse remains of the
broken jars cast into heaps by our ancestors. The modern Romans
dig wine caves in their mountain of potsherds, and enjoy themselves
in the groves at its base. We should be glad also if we could get a
useful modern code and hand over our dustheap of old potsherd pre-
cedents to other uses. But this is hopeless, and as we are constrained
to be ruled by “case law,” we ought to take some rational precaution,
not only that our potsherds should be brought to the heap with honesty
and impartiality, but also that they be of the proper material. As to
honesty and impartiality, we believe there is very little now to be
said on this score against the present system. It is, in fact, a merit
of this system that it produces by publicity and competition a fair
assurance of impartiality. Against oppression on the part of Judges
the reporters for the public press are perhaps a sufficient protection ;
but to bad law arising from carelessness, or ignorance, or prejudice, the
white-wigged recorders who sit in rows beneath the Judge—his critics
as well as his recorders—are a severe discouragement. Toa single
official reporter there might be private intimations given that a parti-
cular case had better be passed over. It is notorious that in former
days such intimations have been given, and that cases carelessly
decided were simply left out of the books. Such a suggestion can
hardly be made to a competing chorus of observant lawyers. We hope
that this point of view will not be neglected when the merits and
demerits of an open system of reporting are canvassed, for it must
not be forgotten that if the class of professional legal reporters were
HISTORY OF “THE LAW REPORTS.” 79

extinguished, the great bulk of merely technical questions would be
decided almost in private. Go into any of our Courts during term time,
except perhaps on motion days, and you will find very few persons
there beyond the Judges and the counsel immediately engaged, except
two classes of reporters—the newspaper reporters watching for cases
of public interest, and the barrister reporters, watching for points of
law. Take the latter away, and you take away a great pressure of
professional criticism. These men do public service. We do not say
this merely with a view to recommend the continuance of the present
system, but to remind the Bar—justly and sorely complaining of the
costliness of their reports—that the considerations of public utility
are not entirely on one side of this question.

The remedy for the uncertainty of the law, so far as it arises from
the uncertainty of foregone decisions, has been much discussed.
Mr. Daniel and Mr. Pulling, both experienced men, have ventilated
the subject in pamphlets and speeches, and the Law Amendment
Society has had much to say upon it. Mr. Pulling proposes to recur
to what there is good reason to suppose was in very early times the
practice, and to insist upon a written judgment entered upon the
record in every case when a judgment in banc has been given. How
far the Judges would be disposed to undertake this additional labour
we cannot, of course, even speculate ; but it seems to be a very reason-
able requirement that a judgment upon a legal question should be put
into writing by the Judge who pronounces it. The most careful
Judges are in the habit at present of committing their judgments to
writing before they pronounce them, and upon very important cases
the judgment is always written. If this were done in every case
decided in banc, we should have authoritative decisions which could be
published at reasonable cost, and upon which every one would rely.
The present reporters would probably find employment in preparing
these judgments for the press, with a précis of the pleadings, and
perhaps with a summary of the arguments of counsel. A system
based upon these suggestions might answer, but we confess we have
great doubts of any scheme which involves an authorized Board of
Reporters, and the rigid exclusion of all judicial dicta which have
not received the approval of that Board.—The Times, Wednesday,
December 2, 1863.

The Attorney-General, of course, looked to me to prepare
beforehand the resolutions to be proposed, and the persons to
move and second them. To do this properly required much
assistance from my professional brethren, and that was willingly
afforded me. My chief anxiety was to obtain the consent of
proper persons, that is, persons who would be approved by the
80 HISTORY OF “THE LAW REPORTS.”

Profession, to act as members of the Committee, to whom, if the
principle of amendment were adopted, it would be referred to
prepare a scheme for amendment, to be afterwards submitted. to
and approved of by the Bar. I was anxious to obtain the consent
of Mr. Serjeant Pulling to act on this committee, and succeeded
in obtaining his consent just before the Attorney-General went
into the Hall to take the chair. I had already obtained the
consent of all the others.

The Committee was intended to consist of twenty-one members
only; but during the meeting a proposal was made to add the
Hon. Mr. Denman, Q.C. (now Mr. Justice Denman), making
the number twenty-two, and this proposal was at once adopted.
Some amendments were moved to the first resolution, but they
were all negatived by show of hands, and all the resolutions were
carried by a large majority.

The following is a succinct but accurate report of the proceed-
ings of the meeting :—

AT a general meeting of the Bar held in Lincoln’s Inn Hall, on
Wednesday, the 2nd day of December, 1863, Sir Roundell Palmer,
Knt., M.P., Her Majesty’s Attorney-General, presiding—

On the motion of W. T. 8. Daniel, Esq., Q.C., seconded by Sir
FitzRoy Kelly, Knt., Q.C., M.P., it was resolved :—
1st.—That in the opinion of this meeting the present system of
preparing, editing, and publishing reports of judicial deci-
sions in this country requires amendment.
On the motion of Sir Hugh M. Cairns, Knt., Q.C., M.P., seconded
by Richard Malins, Esq., Q.C., M.P., it was resolved :—
2nd.—That a Committee be appointed to prepare a plan for the
amendment of the present system of preparing, editing and
publishing reports of judicial decisions, and to report thereon
to a future meeting of the Bar.

On the motion of Arthur Hobhouse, Esq., Q.C., seconded by G.
Osborne Morgan, Esq., it was resolved :-—
3rd.—That such Committee consist of the following twenty-
two members of the Bar, namely :—-

Sir R. P. Collier, Knt., M.P., Solicitor- W. T. 8. Daniel, Esq., Q.0.

General. Montague E. Smith, Esq., Q.C., M.P.
Sir Robert Phillimore, Knt., Queen’s C, Jasper Selwyn, Esq., Q.C., M.P..
Advocate. Sir Hugh M. Cairns, Knt., Q.C., M.P.

Sir FitzRoy Kelly, Knt., Q.C., M.P. R. Paul Amphlett, Esq., Q.C.
HISTORY OF “THE LAW REPORTS.” 81

The Hon. George Denman, 9.C., M.P. G. W. Hastings, Esq.

George Mellish, Esq., Q.C. Henry Matthews, Esq.
James Dickinson, Esq. Nathaniel Lindley, Esq.
Joshua Williams, Esq. J. R. Quain, Esq.

George Sweet, Esq. Alfred Wills, Esq.
Alexander Pulling, Esq. John Westlake, Esq.
George Druce, Esq. F. Vaughan Hawkins, Esq.

And that of these, seven be a quorum.

In the interval, I believe, between the publication of my letter
to Sir Roundell Palmer of the 12th of September and this meet-
ing of the Bar on the 2nd of December, 1863, or about that
time, Mr. Serjeant Pulling, whose active interest in the dis-
covery of a remedy by means of some State-aided or State-sup-
ported system of Law Reporting never flagged, and is eminently
worthy of public recognition, published a pamphlet expounding
his views on the subject, in harmony with, though slightly vary-
ing in detail from, the plan suggested in the 1853 Report of the
Law Amendment Society, with the merits of which he claims,
and is justly entitled, to be credited. The Serjeant was so kind
as to send me a copy of this pamphlet,which I feel myself bound
to do him the justice of reprinting—cn extenso. And I desire to
express my sense of obligation to the Serjeant for his liberality
in recognising some feature of merit in my scheme, though differ-
ing in principle so radically from his own, as shewn by the passage
in italics, p. 89.

OUR LAW-REPORTING SYSTEM,

CANNOT ITS EVILS BE PREVENTED ?

THE question of a reform of our present defective system of Law
Reporting we may at length hope will be taken into consideration by
those having the will and power to deal with it effectually.

The views of anyone who has earnestly given attention to the
subject before it became a popular topic may at this moment be worth
publishing. Hence the appearance of what follows.

The author, having written on the evils of our Law-Reporting
system upwards of twenty years ago, and subsequently on more than
one occasion called public attention to the questions involved in it,
through the medium of the “Society for the Amendment of the Law” (1),

(1) The subject of Law Reporting was first brought before the Law Amend-
ment Society in 1849, and in that year an elaborate Report drawn by the
present writer was adopted by the Society. The subject was again renewed in
1853, when a further Report containing some suggestions for a remedy was
82 HISTORY OF “THE LAW REPORTS.”

takes this opportunity as well of referring to what has been thus
already published, as of explaining more in detail how, in his opinion,
an effective remedy may be provided without producing any commen-
surate inconvenience.

Strange as it may appear, it is nevertheless true that our law now
makes no provision for the ordinary proceedings, or indeed the actual
decisions, of our superior Courts being really recorded at all.

The daily proceedings of each branch of the Legislature are formally
entered on the journals, and the Magistrates and Judges of inferior
Courts are compelled to keep authentic notes of their proceedings,
for the Courts at Westminster have legally the control over them;
and on a certiorari issuing to bring up such proceedings for super-
vision, authentic notes of them are indispensable. The precautions
against inaccuracy, however, which Parliament adheres to in its own
proceedings—the duties which our superior Courts practically pre-
scribe for inferior tribunals—are in a great degree lost sight of in
Westminster Hall. No journal or register exists of what there takes
place from day to day ; no authentic record whatever is preserved of the
great majority of the cases in which formal applications for redress are
unsuccessful ; and even in cases where a record is preserved, the files
of the Court afford no clue to the real merits of the proceedings.

The record of a judgment in an ordinary action at common law
contains a meagre entry of the names of the parties, of the formulz
which have been adopted for raising the issues, of the finding of such
issues by the jury, and of the bare fact of the award of the judgment
in favour of the plaintiff or the defendant. Of the essential merits of
the case decided on, or of the facts, the grounds and reasons of the
decision, there is no authentic entry. Notes of the actual facts proved,
of the points of law raised or intended to be raised, of the arguments
pro and con., of the ruling of the Judges and the grounds and reasons
on which they are based, may or may not be taken at all, or taken
with accuracy, or communicated to the public when taken. In
practice, it is left to the discretion of each Judge to enter such notes
in his own memorandum-book before or after he has adjudged the
case ; or either or all the parties or counsel engaged may keep notes,
giving their own version of the matter. Beyond this it depends wholly
on voluntary reporters, who may be in waiting, to preserve any record

 

adopted. To these two Reports (now out of print, though copies are preserved
among the records of the Society), and to the extracts and quotations contained
in them, the reader is referred for the first version of much that has been since
written on the subject. The writer therefore deems it better, when reiterating
what has already appeared in those Reports, to incorporate the substance with
that which now appears here for the first time, rather than lengthen the
pamphlet by reprinting the papers referred to, or even by continual references
to, and quotation from what has been thus already published.
HISTORY OF “THE LAW REPORTS.” 83

of them, and to exercise absolute discretion (having regard to their own
interests) in selecting what shall and what shall not be made public.

Though the system of our Courts of Equity admits of a more de-
tailed statement of the facts in the formal proceedings, yet the order or
decree gives only the mandate of the judge, and the whole record hardly
discloses more of the grounds of any decision than the meagre record
of a common law action. Lucid and conclusive as the judicial sentence
may be, the grounds and reasons on which it is based are nowhere
authentically registered. Precedents in our Equity Courts, as in our
Courts of Common Law, are cited only from the published volumes of
voluntary reporters.

These defects in‘the mode of recording our judicial sentences are
the more remarkable when we consider the great solemnity and
weight which attach to them. The judgments and decrees pro-
nounced on both sides of Westminster Hall affect not only the imme-
diate litigants, but, indirectly, all the Queen’s subjects. As precedents,
they become constituent elements of our system of law(1). On these
almost alone is fuunded the larger portion of our Commercial Code ;
and there is indeed hardly any branch of our jurisprudence which
may not be said to be based upon them, for such solemn expositions
of the law, like the constitutions which arose from a complete examina-
tion and judicial sentence of the Supreme Court under the Roman
emperors, are adopted into and become a part of our general law, of
which all must take notice (2).

It has ever been the boast of our judicial system that all cases of
difficulty in Westminster Hall “ cognitionaliter examinantur”—that
they are not adjudged or resolved “ in tenebris or sub silentio suppressis
rationibus’’ (3); but in open Court, after full argument, the judges
declaring the authorities, grounds, and reasons of their decisions (4).

When the Court has thus solemnly disposed of any question in
litigation, an authentic record of the actual result, and of the grounds
of the decision, seems essential to the cause of justice, as well for
the protection of those immediately affected, who may desire to
appeal from the decision pronounced, as for the larger number who
may be bound by such a solemn exposition of the law.

If the litigant who excepts to the ruling of the Judges has no

(1) See as to this Hale’s “‘ History of the Common Law,” c. 4.

(2) 1 Bl. Com. 71, and a host of authorities and dicta of our Judges, quoted in
the masterly speech of Lord Chancellor Westbury on the Revision of the Law,
June 12, 1863.

(3) Si imperialis majestas causam cognitionaliter examinaverit et partibus
cominus constitutis sententiam dixerit, omnes omnino Judices qui sub nostro
imperio sunt, sciant hanc esse legem, non solum illi cause pro qua producta est,
sed et in omnibus similibus. C. 1.14, 12.

(4) Preface to 9 Coke, Rep. xiv.
84 HISTORY OF “THE LAW REPORTS.”

certain record to refer to, in order to rest his case on, when appealing
from the decision—if the rulings of the Courts in Westminster Hall
are to settle the law by which all of us are bound—it can hardly be
said that an authentic record of all that is material in such decisions
is not as much a necessity as the formal entry of the mere award of
judgment, or an authentic version of the Acts of the Legislature.

The practice of confining the records of our judicial proceedings to
entries of the formal pleadings, and of the mere award of judgment,
seems to a great extent to be a prejudicial innovation on the more
prudent precautions of a less civilised age. Time, which has im-
proved our general system of jurisprudence, has very far from matured
the practice of administering it. To record judicial proceedings was,
in ancient times, to preserve the memory of the substance. The
record at this day is for the most part the mere wrapper with which
the substantial question was enveloped when under the considera-
tion of the Court. Recorders, in the simple age of our unlettered
forefathers, were those whose province it was to attend in Couwt,
and note what was said and done, in order to remember or record
the same for the security, as well of the immediate parties to the
proceedings, as of that far more numerous class who had subsequently
to ascertain how the law, on any particular matter, had been solemnly
expounded (1).

As the records of our Courts came to be preserved in writing, the
entry seems to have contained a summary of the very substance of
the proceedings, and in all cases of difficulty the grounds and reasons
of the decisions were set out (2). The practice of officially entering on

(1) Some vestiges of these very ancient duties of Recorders are to be traced in
the practice of the Recorder of the city of London, orally certifying the
customary law of the City: the presence of that learned functionary being
always indispensable in the ancient civic Courts, in order to record pleas and
judgments, though he was not the Judge.

(2) Bracton is profuse in his quotations from the actual Rolls of the Courts to
prove the way in which the law had been judicially expounded. “ Fitzherbert’s
Abridgement” of judicial decisions, tem. Henry III., and subsequently before
the time of the Year Books, it is remarked by a learned writer, can be looked
on only as notes framed from the actual enrolments to which Fitzherbert had
access. See Mr. Horwood’s preface to the authorized edition of the Year Books
of Edward I. just published.

In Margaret Weyland’s case, which is given at length in the first volume of
the Rolls of Parliament, 19 Edward I. no. 1, m. 12, it is formally entered on the
Record that the rolls of the Justices in Eyre and de Banco were to be searched
for precedents, “quia casus consimilis nungquam antea evenit.? Scanty as the
entries on our ancient records were, they appear when necessary to have always
disclosed the substantial question in the case, and the grounds of the decision..
Lord Coke refers to a number of such records in which this might particularly
be observed. See references in marginal notes to 4 Inst. 4, and the diligent
HISTORY OF “THE LAW REPORTS.” 85

the record the grounds and reasons of the judgment seems to have
been gradually discontinued, and in the time of Edward III. (1) to have
wholly ceased. As one of the evils which we have inherited with an
extremely technical system of special pleading may be counted that of
causing our judicial records to disclose the forms only, and not the
substance, of the matters adjudicated.

Of the why and wherefore of the decisions, even when founded on
principles judicially expounded for the first time, as little in the
majority of cases can be gathered from the record as from the man-
dates of an Eastern Cadi, and if we take the great majority of oar
leading cases which are given in our books of reports, and compare
them with the actual records, Sir William Blackstone’s notion of the
one being an index of the other will be seen to have a very slight
foundation. The innovation of omitting from the entry on the
record of solemn judgments of the grounds and reasons on which they
are founded is often referred to by our older text writers. Lord Coke,
in speaking of “the Records of Parliament,” observes (2) :—

““The reason wherefore the Records of Parliament have been so
highly extolled is, fur that therein is sct down, in cases of difficulty,
not only the judgment, or resolution, but the reasons and causes of
the same by so great advice. It is true that of ancient time, in judg-
ments of the Common Law, in cases of difficulty, either criminal or
civil, the reasons and canses of the judgments were set duwn in the
record ; and so it continued in the reigns of Edward I. and most part
of Edward II., and then there was no need of reports; but in the
reign of Edward III. (when the law was in his height), the causes
and reasons of judgments, in respect of the multitude of them, are
not set down in the record, but then the great casuists and reporters
of cases (certain grave and sad men) published the cases and the
reasons and causes of the judgments or resolutions which from the
beginning of the reign of Edward III. and since we have in print.
But these also, though of great credit and excellent use in their kind,
yet far underneath the authority of the Parliament rolls, reporting
the Acts, judgments, and re-olutions of that highest Court.”

The growth of our present Law Reporting system—if system it can
fairly be called—has been often described. Lord Coke, in the passage
just quoted, glances at the mode in which it was first introduced.

reader may see many remarkable instances of this in the earlier portion of the
Abbreviatio Placitorum. Sir William Blackstone, who is the apologist of our
system even when pointing out its defects, speaks of the reports “ as serving for
indexes to, and also to explain, the records.” (1 Bl. Com. 71)

(1) In the Court of Chancery the Registrar’s books contained entries of the
grounds and reasons of decrees and orders up to a much later period.

(2) 4 Inst. 4.
86 HISTORY OF “THE LAW REPORTS.”

Sir William Blackstone states that the Year Books were compiled by
the Prothonotaries (1); whether this was so or not, they seem clearly
to have been official compilations, and according to Plowden (2), the
preparation of these was entrusted to four Reporters duly chosen and
appointed by the Crown, who used to confer all together as to the
making and publishing them. But since the reign of Henry VIIL,
when the appointment of official Reporters ceased, the work of re-
porting the points of law involved in our judicial decisions has been
abandoned to mere volunteers, with what consequences to the com-
munity a glance at the present state of our Law Reports will best
explain.

If among the many hundred distinct volumes which the reported
decisions of Westminster Hall are spread over—added to each year at
an increasing rate—there are the laboured productions of accurate,
learned, and trustworthy lawyers; if haply we can find among these
volumes instances where all that ought to be reported is given and no
more, will any practising barrister hesitate as to the fact, that in a
large number of the so-called “ Reports” the greatest defects are to be
found? <A century ago we find complaints made of reports made
through haste, inaccuracy, or want of skill, containing crude, imperfect,
perhaps contradictory accounts of one and the same determination (3). Is it
without reason that charges have since been made of equal if not
greater defects ?

As the proceedings of our Courts are nowhere authentically re-
corded, reports of them may be given by any who choose to give
their version of them; and various and conflicting accounts of their
proceedings are contained in publications of a great variety of cha-
racter: the elaborate series expensively printed and published by the
law booksellers, the rival series competing in price and in the number
of cases given and the more expeditious and less elaborate reports
contained in the legal periodicals. Each of these publications would
at this day be cited as an authorily before the Courts. Vyeing with
one another in containing as many various recommendations as pos-
sible, many of our law reports at this day contain not only the actual
decision and all that is necessary to make it intelligible; but the
forms, the pleadings, &c., the arguments of counsel, pro and con., and
the obiter dicta of the various Judges in disposing of the fallacies put
forth in argument. These may be, and no doubt are, useful for the
various purposes of practitioners, but they are altogether de trop as
records of the substantial question decided.

(1) 1 BI. Com. 72.

(2) Preface to Commentaries or Reports, p. iv.; and see Sir Harbottle Grim-
stone’s preface to Croke’s James.

(8) 1 Bl. Com. 72.
HISTORY OF “THE LAW REPORTS.” 87

The published reports at present often give different and sometimes
contradictory versions of the same case, but even when they seem in
great part formed from one another, we find the Judges disclaiming
them altogether as inaccurate (1). However, as there is no distinction
between what is authentic and what is not so, our Courts at present
are driven to rely on them, or even on notes of cases published in text-
books, or legal newspapers, with matter wholly extrinsic, or published
years after the date of the decision (2). Nay, there is no law or practice
which prevents the manuscript note of a decision taken by any dilet-
tante member of the Bar being cited as an authority to upset what
was before deemed to be the law. “If,” as well observed in one of
our best text-writers, “conclusions from unquestionable principles
are to be overthrown in the last stage of a suit by private memoranda,
who can hope to become acquainted with the laws of England? and
who that retains any portion of rationality would waste his time and
his talents in so fruitless an attempt? Is a paper evidencing the law
of England to be buttoned up in the side-pocket of a Judge, or to
serve for a mouse to sit upon in the dusty corner of a private library ?
If the law of England is to be deduced from adjudged cases, let the
reports of those adjudged cases be certain, known, and authenticated (3)

Is there no mode of preventing these evils? no way of securing this
certainty, publicity, and authenticity to the reports of the decisions of
our Judges?

Why should not our superior Courts of Law and Equity, like the

(1) “The Law Review” for Feb., 1848, gives a long list of cases cited from
the published reports of the preceding year, in which the Judges disclaimed as
incorrect, inaccurate, or false, what they were there reported to have said or
decided.

(2) Lord St. Leonards, in the preface to his Treatise on the Law of Property as
administered in the House of Lords, only published in 1849, observes that—
“Whilst at the Bar the author retained all the printed cases on appeals in
which he was counsel, with his own notes and the notes of the argument. From
this source, principally, he has been enabled to add the cases not at present
reported, between 1821 and 1826.”

In the important proceedings relating to the Alexandra, at this moment pend-
ing in the Court of Exchequer, the only judicial decision referred to on the con-
struction of the Foreign Enlistment Act was one by the late Mr. Justice Coltman,
fourteen years ago—and of this no other than a newspaper report could be
found. The Court, after vain efforts to obtain a note of the decision made by
any Judge, barrister, or short-hand writer, was compelled to resort to a subter-
fuge to avoid infringing the rule against receiving newspaper reports as autho-
rities, by asking Mr. Baron Martin, who had been engaged as counsel in the case,
to refer to The Times of July 6, 1849, and, after thus refreshing his memory,
to say whether the decision there reported was pronounced. See The Times,
November 12, 1863.

(3) Preface to Watkins’ Conveyancing.
88 HISTORY OF «THE LAW REPORTS.”

Houses of Parliament, have authentic journals preserved of all their
proceedings? At this day we have every facility afforde1 for such a
desideratum. The whole time occupied by the sittings of the superior
Courts in Banco does not average half the time of the sittings
of the Legislature. By the aid of efficient short-hand writers, whose
services could be secured at a very moderate expense, and a selec-
tion from the number of gentlemen who, under the present practice,
assiduously attend to take notes of the proceedings, these journals
might be accurately prepared day by day, and duly entered up as
soon as practicable, so as to give an authentic version of what
has taken place in the natural order in which it should come, according
to date (1). :

By a few salutary rules for the guidance of the Recorders or Regis-
trars, the journals might easily be made to contain, neither in too
diffuse or too obscure a form, all that was required to give with the
written documents on the files of the Court a complete record of the
substance of each case, and of the ruling or decision of the Judges
upon it. Let copies or extracts from these journals be supplied at a
fixed price to all who might require to use them, and such copies duly
sealed be received as authentic.

Such an authentic version of the proceedings of our Courts would go
far, not only to secure accuracy in the reports of cases subsequently
published, but to put a stop to disputes which too often now occur in
particular cases as to what was said or decided in a previous stage of
the cause.

Should the course here suggested be adopted, the subject of Law
Reporting would really be easy to deal with. Let a sufficient number
of competent men be appointed to select from the journals cases, which
containing a new exposition of the law, ought fairly to be published
as precedents for future guidance. Let these reports be received as
authorized versions of the cases therein reported. Let any one before
the precedents were published, cite the journals, producing authentic
extracts from them; but let no report be received as an authority in
our Courts which was not vouched in one or the other of these modes.
Let all this be well carried out, and the difficulties which now beset
the question of reforming our system of Law Reporting will at once
vanish. Can it not be well carried out, and will any serious practical
inconvenience arise from the change?

If the selection of persons fitted for the work of recording and re-
gistering the proceedings of our Courts, and publishing authentic
versions of those cases which affect the general administration of
justice, were left to the Lord Chancellor, or even to a Board composed

(1) The sittings of the Common Law Courts in and out of term, and including
the sittings in error, uever occupy more than one hundred days in the year.
HISTORY OF “THE LAW REPORTS.” 89

of members of the Bench and the Bar, there can be little fear that the
work would be effectually done. There are among the body of gentle-
men at present engaged in the business of Law Reporting, more than,
enough to be found able and willing to do the work proposed effectu-
ally, if appointed; and it can hardly be assumed that gentlemen so
authorized would be more likely to neglect their duty than when
deriving their appointment from law booksellers. Security should of
course be afforded for preserving them from any undue influence, and
for discharging those who became inefficient, inaccurate, or inatten-
tive. Whether such a supervision might be effected by a Council of Benchers
of the Inns of Court, as proposed by Mr. Daniel, deserves consideration.

Assuming the practicability of such an appointment of persons fully
efficient to record the proceedings of our Superior Courts, and sub-
sequently publishing the Law Reports, will there be any difficulty on
the ground of expense ? :

This objection is one which it is right to deal with, but never-
theless it must be borne in mind that as it concerns the State to record
and promulgate the law laid down by our Judges equally with that
prescribed by the Legislature, if the cost were a serious consideration,
this practically forms but a very slight element in the question, par-
ticularly when we are told that there is at present an available fund
in the surplus fees of the Courts over and above what is required to
pay the salaries charged upon them.

The whole cost of such an establishment as is here suggested, and
of printing and publishing sufficient copies of the authentic reports
for the use of the whole legal profession, would be far less than that
which the Profession at this day incur for supporting the present very
objectionable system (1). Looking to the fact that a large number of
the Law and Equity Reports are even now directly required for the
public service at home and in the colonies, the legitimate demand for
authentic reports would be large enough to cover the whole cost of
providing them.

lt remains to say a word on the subject of the vested interests in the
present publications in use by the Profession as Law Reports.

Were an authentic system of Law Reporting established, so as to

(1) Some statistics given in the Reports of the Law Amendment Society
already referred to will easily make out this. If the publications here suggested
were to besold at £3 a year, the revenue from the sale alone would be ample to pay
all the expenses.

The number of practising barristers and solicitors who now pay dearly for the
present reports, and would gladly be taxed at £3 for the authentic series,
exceeds 10,000; whilst the persons who as Judges and legal officials in the Queen’s
dominions ought to be supplied with them at the cost of the State are at least
1000, so that a revenue from the sale alone might be looked to of £33,000 per
annum.
90 HISTORY OF “THE LAW REPORTS.”

-preclude any but the authorized versions being received as authentic
in our Courts, there might still remain ample room for some of the
present publications,

The Law Reports proposed containing only the case as actually
decided, the periodicals which should give the speeches of counsel, the
obiter dicta of the Judges, the forms of pleading used, &c., would still
be a desideratum by many who might thereby derive valuable informa-
tion. Again, a republication from the authorized cases, of cases with
notes, or of those which related only to one subject, as Criminal Law,
Magistrate’s Law, &c., might even find more subscribers than they
get at present. Be this as it may, however, the question of vested
interest is not likely to be urged with any success with respect to the
very important matter now under consideration. Ifthe improvement
proposed is to be recommended on public grounds, vested interests in
the system to be superseded can only be regarded as vested interests
in a great abuse.

“The Times,” on the 3rd of December, 1863, made the follow-
ing comments on the result of the meeting :—

The resolution which was carried yesterday by a large majority at
a crowded meeting of the Bar embodies a statement which has long
been recognised as a truism by the profession and the public. To
say of a system which leaves one branch of our law to be shaped by
irresponsible Reporters, and provides no authentic register of decisions
affecting the rights of every British subject, that it “ requires amend-
ment,” is to affirm what is self-evident. Many may think that too
much weight is attached to precedents, and that it would be far better
if our tribunals were no longer absolutely bound by them. There are
but few principles of the Common Law that have not found their way
into statutes, and if an authoritative digest of these were compiled,
modern Judges might still be guided, without being fettered, by the
opinions of their predecessors. This, however, is not the present ques-
tion. ‘The question is whether, assuming that the series of cases mis-
called “‘our unwritten law ” is to remain uncodified and undigested,
some adequate security ought not to be taken for their being reported
properly. Hitherto no such security has been found, or even sought
in earnest, since the Year-books were discontinued in the reign of
Henry VIII. A partial and futile effort of Lord Bacon to procure an
official record of case-law, and constant expressions of vain regret from
our great lawyers, beginning with Coke, are the only traces of a disposi-
tion to confer this great boon on the nation. We are told that ignor-
ance of the law is no excuse for any Englishman, and yet it is a fact, not
only that we may be crushed with obscure precedents gleaned up and
down many hundred volumes, but that the most recent have to be
HISTORY OF “THE LAW REPORTS.” 91

verified by a comparison of several different versions. For a proof of
the inconvenience and injury to the interests of justice that may arise
from discrepancies in reporting, we need not go further back than the
case of the “ Alexandra,” although it was the published notes of the
shorthand writer that were thereimpugned. The disputes that may
occur now and then on the motion for a new trial, for want of cer-
tainty as to the language employed by the Judge, are however,
’ trifling compared with the permanent evil of having no Reports of
conclusive authority. Itis somewhat hard that the mischief of an
evil precedent, once established, can be annulled by the Legislature
alone, but it is monstrous that so fatal a power should belong to a
precedent which may have been incorrectly reported after all.

This is the main abuse with which Mr. Daniel calls upon the legal
profession to deal. He traces the history of judge-made law from the
earliest times, shewing how the Year-books were succeeded by a period
of “loose” reporting, loose reporting by a close licensing system, the
licensing system by a privileged monopoly, and monopoly by open com-
petition between “ regular” Reporters, legal serials, and newspapers.
The only value of this historical sketch is to shew that we have tried
every way, except the best one, and have failed to obtain what we
have a right to insist upon. At this moment we have six sets of
Reports competing with each other, none of which can be quoted as a
final standard of reference, and all of which can be quoted as evidence
on the point decided. Mr. Denman argues that this multiplicity of
Reports is the best guarantee for accuracy, and the best corrective for
the tendency of Judges to qualify what they have themselves laid
down. But surely these two objects would be more directly attained
if one transcript of the judgment were deliberately made by respon-
sible persons from their own notes, checked as they would still be by
the trustworthy, though unauthorized, testimony of private Reporters.
Members of the Bar, and the public generally, would then know
where to find the doctrines upon which the fate of future lawsuits
may depend. As it is, the omission of a material element in the case,
or the confusion of an obitur dictum with the ratio decidendi, may
entirely vitiate the value of a precedent as preserved in a particular
Report, which may have been prepared in the utmost haste for a
weekly or monthly periodical. The only remedy for this is the colla-
tion of it with other Reports of the same fugitive kind, and with
those which come out—sometimes years afterwards—with a certain
official prestige and under the names of their authors, though not
always with any paramount claim to respect. Granting that the
exact significance of the decision can be elicited in this way, the pro-
cess is enormously dilatory and expensive. It is dilatory, because

H
92 HISTORY OF “THE LAW REPORTS.”

the Reporters, out of a natural anxiety to omit nothing which others
insert, crowd their pages with cases which prove nothing, and details
which do not elucidate the cases. It is expensive, because it involves
taking in or getting access to six publications instead of one, the
price of this last being enhanced by the very diminution of its cir-
culation owing to the opposition of its rivals. When we add that
even the Reports which are called “regular” are under no uniform
system of management, are compiled on different principles, are issued
at uncertain intervals, and possess no judicial sanction, although they
are often corrected by the Judges, we have said enough to recommend
Mr. Daniel's resolution to the common sense of our readers.

The next question, and, indeed, the only one that admits of serious
controversy, is, what is to be done? We might evade this, as the
meeting evaded it, by throwing it upon the committee of eminent
lawyers just appointed. Perhaps, however, the problem is one which
would appear more formidable to a professional than to an ordinary
mind. In the first place, there is really no reason why the appointment
of an “ official,” or, as we should prefer to call him, a responsible, Re-
porter for each Court should exclude the class whose interests are
supposed to be adverse to change. It would be the duty of this
gentleman, out of whatever fund he might be paid, to select and
reduce to a succinct form those cases, and those only, which involve
important matters of law. This would take some little time; and
meanwhile the curiosity of the public and the profession would
create a demand for ampler and fresher accounts of legal proceedings.
In the great majority of the cases contemplated written judgments
are even now pronounced, and the responsible Reporter would have
nothing to do but to embody them, as is now done. The chief dif-
ference would be that he would be bound to produce the results of
his labours with much greater despatch than at present, and that the
Judges would revise their own words while they were still fresh in
their memories. No doubt it would be an essential feature of this
system that no other Report could be cited as conclusive; but the
Bench might still be enlightened by cases borruwed from non-official
sources, as they now are by the extempore illustrations which counsel
frequently offer from their own experience. Something like this
practice has been adopted in Parliament, and there are no apparent
objections to its application in Courts of Law. It would not involve
of necessity the principle that the Judge should be virtually his own
Reporter where the judgment is oral, for the reporting body might
be made independent of the Judicature. These are essentially diffi-
culties of detail, and such as the leaders of the legal profession, in
concert with the Bonch, might easily overcome. What the public
HISTORY OF «THE LAW REPORTS.” 93

and the working members of the Bar may fairly expect is an acces-
gible and sufficient record, at a reasonable cost and within a reason-
able time, of the law which the Judges are always making, though
by a legal fiction they are said to declare it, and which thenceforth
becomes binding upon all. Whether this record should be prepared
under State sanction or under judicial sanction, and how far private
enterprise should be encouraged at the same time, it is for the com-
mittee to consider.

In the “Morning Advertiser” of the 5th of December, 1863,
there appeared a letter addressed to the Attorney-General and
sent to the “Morning Advertiser” for publication. This letter is
of interest, as shewing that the outside public began to appre-
ciate the importance of the proceedings of the Bar, and the
value of the services rendered by the Attorney-General.

THE SUBJECT OF LAW REPORTING.

[The following letter to Sir Roundell Palmer, Attorney-General,
on the subject of Law Reporting, has been transmitted to us for
publication by one of our ablest Correspondents.—Ep. M. A.|

Sir,—It is not probable that you will permit the interested opposi-
tion of a minority, however large, to defeat your proposal of an
amendment to the present system of Law Reporting; and it is the
duty of all who are able to assist you in carrying out a reform of
which it is not too much to say that it is by far the most important
Law Reform for the benefit of the public which has ever been
proposed; and should put to shame the members of the “ Law
Amendment Society,” who must have known the evil, but wanted
the moral courage to propose a remedy which was certain of severe
opposition from those lawyers who fancy they have a personal interest
is continuing a system of which it may be truly said, that if it was
intended to render the law ambiguous and expensive, it has assuredly
succeeded in effecting that object.

Many years have elapsed since I was indebted to you for the
recovery of a very large sum of money, and gratitude has been my
principal motive in addressing to you this letter, detailing a plan by
which your reform may be most easily carried out, and, as I believe,
without the slightest injury to those newspapers which the legal
profession will always support on account of their intrinsic merit.
As to those things which are called Reports, the principal object of the
parties who publish them is, not to furnish the public with the best

H 2
9+ HISTORY OF «THE LAW REPORTS.”

possible account of the decisions of the Judges, but to put money in
their own pockets; and as to their cry about your proposed reform
being a monopoly, there cannot be in truth a more stringent monopoly
than the present system. If any one doubts this, let him attempt to
set up as a Law Reporter in any of our Courts, and, however well
qualified he may be, he will find it an impossibility. To chatter of
the freedom of the present system is nothing more or less than a
plagiary on the well-known aphorism of Horne Tooke—“ that the
London Tavern was open to all.”

There are two classes of decisions to be dealt with :—

First. Those on very important subjects, wherein the Court takes
time to deliver its judgment.

Second. Those on which the Judges decide as soon as the counsel
on both sides have concluded.

As a rule, to which of course there would be many exceptions, it is
the first class of which both the public and lawyers desire to have
the most accurate reports. And assuredly nothing can be more easy ;
it would be merely to require that such decisions should be given from
a written document which should immediately after delivery be
handed to an officer of the Court to be kept as a record, which might
always be had by any one choosing to pay for a copy. New this
would clearly satisfy one part of what is desired, and would also have
the great utility of preventing Judges indulging in similar twaddle
to that of which the Alexandra case is the last instance.

But it is not all that is necessary; for both the public and lawyers
have aright to know what principles the Judges have decided; and
for this purpose I would propose that in each Court an officer should
be appointed who should on each Saturday publish a condensed sum-
mary of every judgment pronounced in his Court the precerling week
—this condensed summary being, in fact, little if anything more than
the marginal notes at present accompanying each report; and it is
clear to my mind that such summary of the judgments in all the
Courts would not occupy more than a few pages.

This is all the lawyer would require; for when he wished for full
information of the reasons for such decision, he would desire his client
to procure a copy of such and such judgments, and then he could say
how the case before him was affected by them.

There are many ways of meeting the second class of judgments,
namely, those which are delivered after counsel have concluded. I
think the best way would be, to leave such cases entirely in the
hands of the Judges, and let them decide in any cage before them
whether it embraces points, either of principle or practice, on which
it would be us: ful the public and the profession should be informed ;
HISTORY OF “THE LAW REPORTS.” 95

and in such cases he would merely have to say, I will give judgment
to morrow morning. This he would do from a written document,
which would be immediately treated as in the first case.

I have the honour to remain, Sir,
Your obedient and faithful servant,

AN OsLicED CLIENT.
The Morning Advertiser—Dec. 4, 1863.

Thus far success had attended the efforts of the Profession, and
I began to feel there was some truth in what I had learned at
school :—
“ Dimidium facti, qui coepit, habet.”
96 HISTORY OF “THE LAW REPORTS.”

THIRD DIVISION.

The steps taken after the 2nd of December, 1863, and up to the 28th
of November, 1864, the day on which the third ee of the
Bar was held.

Tue first meeting of the Bar Committee appointed at the meeting
of the 2nd of December, 1863, was held on the 22nd of December
following. The meeting was held in the Benchers’ Reading
Room, in Lincoln’s Inn. This room had been kindly granted by
the Society for the purpose, and all the subsequent meetings of
the Committee were held in the same room; and by the liberality
of the Bench of Lincoln’s Inn was thus used without charge.

As I had been permitted to take a prominent.part in the pro-
ceedings at the Bar Meeting which had resulted in the appoint-
ment of the Committee, it was expected that I should take what-
ever steps might be necessary for bringing the Committee together
with a view to their proceeding to discharge the duty entrusted
to them, and which they had undertaken. I therefore gave notive
to each of the twenty-two members that the first meeting would
be held on the 22nd of December, at the Benchers’ Reading
Room in Lincoln’s Inn—having previously ascertained that that
day would be generally convenient, and that the Benchers were
willing to allow the room to be used for the purpose. The
meeting was held accordingly, and the following fifteen members
attended, and as entered in the minutes were as follows:

W. T.S. Daniel, Q.C. Geo. Druce

C. J. Selwyn, Q.C., M.P. G. W. Hastings

kh. P. Amphlett, Q.C. Henry Matthews
Geo. Mellish, Q.C. Nathl. Lindley
James Dickinson Alfred Wills

Joshua Williams John Westlake

Geo. Sweet F. Vaughan Hawkins

Alex. Pulling

The absent members were Sir R. P. Collier, Solicitor-General,
Sir Robert Phillimore, Queen’s Advocate, Sir FitzRoy Kelly,
HISTORY OF “THE LAW REPORTS.” 97

Knt., Q.C., M-P., Montague E. Smith Esq. Q.C., M.P., Sir Hugh
M. Cairns, Knt., Q.C., M.P., the Hon. Geo. Denman, Q.C., M.P.,
and J. R. Quain, Esq.

By the resolution appointing the Committee seven formed a
quorum, and more than double that number having attended, the
Committee were fully competent to proceed, and they proceeded
accordingly.

Their first resolution, moved by me and seconded by Mr.
Dickinson, was by a unanimous vote to appoint Mr. R. P.
Amphlett permanent Chairman ; and by a similar vote Mr. J. T.
Hopwood, of Lincoln’s Inn, Barrister, was appointed Hon. Secre-
tary. The question of the appointment of another Secretary, to be
selected from the Common Law Bar, was directed to stand over
for the present ; and Mr. Hopwood was requested and undertook
to keep minutes of the proceedings of the Committee. The
meeting was then adjourned to the 14th of January, 1864.

But I was requested, and undertook, in the meantime to prepare
a draft circular stating the appointment and object of the Com-
mittee, to be sent to the Judges and Profession generally. The
circular to be ready to be considered by the Committee at their
meeting on the 14th of January next. I accordingly prepared a
draft circular which was submitted to, and with some alteration
approved by the meeting held on the 14th of January; and the
following resolution was passed.

“That the circular prepared by Mr. Daniel, with the altera-
tions made therein by the Committee, be printed; and
that the Secretary be requested to send a copy to all
Judges and ex-Judges of the House of Lords, Privy
Council, and Superior Courts of Law and Equity, and
all Barristers and Pleaders practising in London,—to
the Incorporated Law Society, and the Metropolitan and
Provincial Law Association, and such other persons as
any member of the Committee or the Secretary should
think desirable, accompanied by a letter stating that the
Circular was sent at the request of the Committee, and
that a meeting would be held on the 18th of February
next to consider the answers to the circular.”

The following are copies of the circular and letter :—
98 HISTORY OF “THE LAW REPORTS.”

LAW REPORTING.

At a General Meeting of the Bar held in Lincoln’s Inn Hall, on
Wednesday, the 2nd day of December, 1863, Sir Roundell Palmer,
Knt., M.P., Her Majesty’s Attorney-General, presiding—

On the motion of W.T. 8. Daniel, Esq., Q.C., seconded by Sir
FitzRoy Kelly, Knt., Q.C., M.P., it was resolved :—

1st.—That in the opinion of this Meeting the present system of
preparing, editing, and publishing Reports of Judicial Deci-
sions in this country requires amendment.
On the motion of Sir Hugh M. Cairns, Knt., Q.C., M.P., seconded by
Richard Malins, Esq., Q.C., M.P., it was resolved :—
2nd.—That a Committee be appointed to prepare a plan for the
amendment of the present system of preparing, editing, and
publishing Reports of Judicial Decisions, and to report
thereon to a future Meeting of the Bar.

On the motion of Arthur Hobhouse, Esq., seconded by G. Osborne
Morgan, Esq., it was resolved :—

3rd.—That such Committee consist of the following twenty-two
Members of the Bar, namely :—

Sir R. P. Collier, Knt., M.P., George Mellish, Esq., Q.C.

Solicitor-General. James Dickinson, Esq.
Sir Robert Phillimore, Knt. Joshua Williams, Esq.

Queen’s Advocate. George Sweet, Esq.
SirFitzRoy Kelly, Knt.,QC.,M.P. Alexander Pulling, Esq.
W. T.S. Daniel, Esq., Q.C. George Druce, Esq.
Montague E. Smith, Esq., Q.C., G. W. Hastings, Esq.

M.P. Henry Matthews, Esq.

C. Jasper Selwyn, Esq., Q.C., M.-P. Nathaniel Lindley, Esq.
Sir Hugh M. Cairns, Knt., Q.C., J. R. Quain, Esq.
M.P. Alfred Wills, Esq.
R. Paul Amphlett, Esq., Q.C. John Westlake, Esq.
The Hon. George Denman, Q.C., F. Vaughan Hawkins, Esq.
M.P.
And that of these, seven be a quorum.

At the first Meeting of the Committee, held on the 22nd of Decem-
ber, 1863, Richard Paul Amphlett, Esq., Q.C., was unanimously
appointed Permanent Chairman of the Committee.

 

The Committee thus appointed are anxious, in order the better to
discharge the duty entrusted to them, to collect the opinion of the
HISTORY OF “THE LAW REPORTS.” 99

profession upon the subject of Law Reporting ; and for that purpose
the Committee are desirous of receiving any observations which you,
either alone or in conjunction with others, may be so obliging as to
make upon what, in your opinion, are the advantages or disadvan-
tages of the present system, and also any suggestions, either as to
the principle or details of any amendment of the existing system
which you may think desirable.

BencuHers’ READING Room,
Lincoty’s Inn Hatt,
January 20th, 1864.

Sir,
At the request of the Committee recently appointed by the

Bar to consider the present system of Law Reporting with a view to
its amendment, I have the honour to submit for your consideration
a circular which has been issued by the Committee, and to state that
they would feel much indebted for any observations or suggestions
which you may be pleased to make with reference to the important
object of the circular.

The Committee will meet on Thursday the 18th of February next,
to consider any suggestions with which they may have been favoured
in the meantime.

I have the honour tu be, Sir,
Your obedyent servant,
Jauzs T. Hopwoop (Hon. Sec.)

Several thousands of the circular and letter were sent and
distributed by the Hon. Secretary to and among the Judges and
the profession.

At the same meeting it was also resolved that Mr. Denman,
Mr. Matthew, Mr. Pulling, Mr. Quain, and Mr. Westlake be
appointed a sub-Committee to inquire into the practice as to
recording judicial decisions and reporting the grounds and reasons
of such decisions in Foreign Countries, India, the Colonies, and
Scotland, and to report thereon to the Committee. Such sub-
Committee to have power to add to their numbers.

The sub-Committee undertook the duties confided to them
and in due time made a carefully prepared and exhaustive report
to the Committee, which is printed at length in a subsequent part
of this volume (1).

It appearing that the duties of the Hon. Secretary were becoming
(1) See p. 18.
100 HISTORY OF “THE LAW REPORTS.”

onerous, it was resolved at a meeting of the 28th of January,
1864, to appoint Mr. Wm. Dundas Gardiner, of Lincoln’s Inn,
Barrister-at-Law (he having volunteered his services) to act as
Hon. Secretary jointly with Mr. Hopwood; and the question of
the appointment of a Secretary from the Common Law Bar was
allowed to stand over—no offer or proposal having hitherto been
made with that object by any member of the Common Law Bar.
At meetings held on the 18th of February, the 25th of February,
and the 3rd of March, 1864, communications from various indi-
viduals and Law Societies, amounting in all to seventy-four,
including some from Lord St. Leonards, Mr. Justice Willes and
Vice-Chancellor Wood (afterwards Lord Hatherley), had been
received. All these had been carefully read by the chairman,
Mr. Amphlett, and he had made a synopsis of them for the use
of the Committee. And at the meeting on the 3rd of March, it
was resolved that certain of the papers, which appeared to be
representative of general opinions and in themselves of much
value, should be printed for the use of the Committee, and distri-
buted among them with a view to careful consideration. This
was done; and the following are copies of the selected papers.

Lorp Sr. Leonarps.

Tur present scheme of reporting has the advantage of furnishing
the Profession with an immediate Report of every case of any import-
ance, with, no doubt, the unavoidable drawback of the want of time
for the Reporter to obtain the briefs and papers in the cases, and to
give to them that study and deliberation which the subject demands ;
but this is supplied by the regular Reporter, to whom ample time is
allowed, and from whom an accurate and condensed statement of facts
is required. Open to objection as the scheme may be, the Bar, I
think, would not be willing to lose either the earlier or the later
Reporter. There is such a demand for the last authority, that now and
then it is not the greatest lawyer, but the one who has read up the
latest cases who proves the best advocate.

By our law every decision after a regular argument is an authority,
for our decisions are not like those of the French, good only for the
successful party, but they operate as precedents, and will, unless
erroneous, be followed. This system works admirably, although, of
course, there will always be judgments open to objection.

J have not experienced any difficulty in consequence of differences
HISTORY OF «THE LAW REPORTS.” 101

between the Reports. The weekly ones, which are ably conducted,
would not be relied upon in an important case, if any doubt arose
about the facts, but the briefs in such recent cases could always be
readily obtained, and the facts be ascertained before the publication
of the Report in full.

I should think it objectionable to call for legislative interference,
or to attempt to place Reporters under the Government, or to appoint
short-hand writers. You can no longer prohibit, or control by the
strong hand, reporting. Every man is and must be left at liberty to
go into Court and report what he pleases. The newspaper press has,
and will continue to have, that privilege. No Judge could properly
refuse to hear a case quoted by the Bar, but a Judge would not upon
a law point allow a newspaper report to be quoted, nor would he act
upon an important decision quoted from a Report hastily published,
without further examination. When the regular Report is published,
after the Reporter has had full time to obtain and read the briefs, and
to consider the facts, the Court can safely act, for if there be any error
in such a Report, it is quickly detected.

We have excellent materials to proceed upon. There are perhaps
too many weekly reporters, but not too many of those I term the
regular Reports. The first you cannot interfere with further than
this, that the Court may, and the authority has frequently been
exercised, refuse to allow a weekly reporter to be quoted, when the
case is published in the regular Report. If the former are or should
become too numerous, that is an evil which should be left to cure
itself. Unless the sale is satisfactory, the publication will necessarily
cease. One evil of numerous Reporters is, that cases, however unim-
portant, are reported, fur every Reporter is naturally desirous to
secure the insertion of his own report of a case which will not be
found in any of the other Reports.

But the regular Reports are no doubt open to some objection.
Many cases depending upon local Acts, which are not likely ever again
to come into discussion, are reported at great length: so cases, for
example, depending upon the construction of a long correspond-
ence, can hardly be usefully reported, unless the Judge lays down or
explains a rule of law. It would be useless to multiply instances. A
Judge may with great propriety go at large into an examination of
the facts for the satisfaction of the suitor, which it may not be neces-
sary to report at length, although no doubt the Court frequently, in
its own view of the facts, clears up half the difficulties in the case.
It is impossible not to be struck with the learning and labour ex-
hibited by our Judges in their judgments; but the length now and
then is greater than the case, as a legal authority, would justify the
Reporter in fully reporting.
102 HISTORY OF «THE LAW REPORTS.”

But these things can be easily corrected, and it would be desirable
that one unifurm plan of printing should be adopted. No number
should close with part of a case; such a mode of reporting gives the
student and the practitioner additional trouble, and has the appear-
ance of an attempt to compel the purchaser of the mutilated report to
purchase the next number, and so through the series.

Some of the regular Reporters have felt themselves at liberty to
leave portions of their earlier cases unreported for a considerable
time, whilst they report the current cases. This is of course open to
serious objections. Law Reports have always been costly, but until
of late years they were of considerable value when on our shelves,
Now, however, the booksellers have so managed, that after the lawyer
has half-bound his Reports, he finds their value in his hands not
largely exceeding the cost of the binding. There should, therefore,
be no Reports of unnecessary length, or of points not of importance.
With the bookseller it is of course merely a trade transaction, so that
the Reporters may, in carrying out their improvements, require, in
some measure, the support of the Bar and the Bench. The Profession
owe a debt of gratitude to those members of the Bar who with know-
ledge, ability and labour, dedicate themselves to reporting ; and in
dispensing legal patronage, long-continued labours of a Reporter
should not be overlooked.

Although I am opposed to legislative authority or an undue control
over Reporters, yet I think much may be done by the Bench and tke
Bar to place reporting on a more satisfactory footing. The Judges
cannot be required to write their judgments; that must be left to
their own discretion. Where the Judge coirects the Report of his
judgments, he would of course avoid altering the sense of what fell
from him, and he should not detain the MS. an hour longer than
necessary, for that would tend to delay the publication, and thus an
impediment would be caused by the Bench itself in the accomplish-
ment of the object in view. The Reporter should not be under or sub-
ject to the Judge, but he should be in confidential communication with .
the Judge. There has always in my time been an acknowledged
Reporter, that is, a Reporter in whom the Judge reposed confidence
and to whom he allowed a copy of his written judgments to be fur-
nished, and in many instances the Judge corrected the MS. Report.
This operated as a check upon rival Reporters in the same Court, but,
if I recollect rightly, Lord Denman, when Chief Justice, broke through
the rule, and whilst there were rival Reporters in the King’s Bench,
allowed both to have copies of the written judgments. It is not pro-
bable that there will hereafter be more than one Report of the pro-
ceedings of each Court. Although the Judge has no power to appoint
a Reporter, he has necessarily considerable influence over the assump-
HISTORY OF “THE LAW EPORTS.” 103

tion of the office by any gentleman at the Bar. There is no want of
competent persons to fill the office, but no man conld hope to succeed
who did not possess the confidence of both the Judge and the Bar, and
no bookseller would undertake the publishing the Reports unless he
were satisfied that the Reporter did possess that confidence. I believe
that what is now passing will go far to correct any solid objection to
the present mode of reporting, and as the Bar has taken up the subject
with general approbation, I would beg to suggest that besides the
Report, which I presume the Committee will make embodying their
views, the Bar should establish from their own body a permanent
committee, a sort of family council, with power to add new members
as occasion may require, whose duty it should be to keep a friendly
eye over the Reports, and to suggest such improvements as may in
their judgments be required, and to communicate with the Bench and
the Reporters thereon, and, if it should be deemed necessary, to call a
general meeting of the Bar. The simple appointment of such a body
would in all probability prevent any irregularity in the reporting of
the judicial decisions. If any occurred they could speedily be cor-
rected ; and it would be understood that this power, if I may so term
it, would be so exercised as in no respect to wound the feelings of the
highly honourable and learned class of our brethren at the Bar who
dedicate their time to reporting the decisions of our Courts.

Imay observe that I consider any attempt to purchase the interests
in any existing Reports altogether inadmissible, nor do I think that
any satisfactory arrangement is likely to be made between the large
body of the Reporters in the various Courts.

Connected with this subject there are two important questions
upon which the opinion of the Bar must have great influence.
1. What are we to do with the Reports already published? 2. What
are we to do with the future Reports after their publication? My
answer to both these questions would be, do nothing, but leave both
classes to be svld to all desirous of purchasing.

As to the first class, I should consider it a waste of time and money
to touch them. No good law library is without them, and although
at one time they were dear, yet now they are cheap, and a sufficient
stock is always in the market. To republish them as they are would
cost a very large sum, no bookseller would undertake it, and it would
be a waste of public money : any man who wants an old Report which
is not on his own shelves, is sure to find it in the library of his Inn.
If an attempt were made to curtail and consolidate these Reports, it
would be an expensive and a useless labour. No bookseller would under-
take any such publication, and who, having already the old Reports
at large, with all the arguments, would buy the curtailed edition ?
Speaking for myself, I have constantly found the arguments in the
104 HISTORY OF “THE LAW REPORTS.”

old Reports a great help to me during my long career. Who would
venture to condense Coke or Plowden, for example? Besides, if we
require condensation, can we hope to excel Chief Baron Comyns, or,
if we look for an enlarged view, can we compete with Chief Baron
Gilbert (part of Bacon’s Abr.), whilst, if we call for an abridgment,
have we not Viner’s, in twenty-four folio volumes, besides a modern
Appendix of six octavo volumes, and other works of great merit.
And, not to be serious for a moment, if we prefer verse to prose we
have all Coke’s Reports condensed in verse, e.g.,

Archer,—If he for life enfeoff in fee,
It bars remainders in contingency.

2. As to the suggestion that periodically the future Reports should
be consolidated and corrected, we must bear in mind that we shall at
a large cost already have the Reports themselves on our shelves, and,
as I have already reminded you, of little pecuniary value relatively to
their cost. A mere republication of the Reports under separate heads
would be very expensive and would not sell, and if yon desire to go
further, to whom would you entrust the important task of omitting
this case and throwing doubts upon that? Where is the man to be
found? And by what power is such an authority to be granted?
For, unless it be stamped with authority, it would simply rank
amongst the legal publications of the day; and, even if made with
authority, the Bar would be at perfect liberty to resort when necessary
to the original Report, and perhaps damage the improved version of it.
A code of law founded on the Reports every five or six years would
be no benefit. In truth in the many excellent treatises which, at least
in sufficient numbers, now issue from the Press, we have upon all im-
portant subjects Codes and Codes, resting altogether on the know-
ledge and labour of their authors. They are not law, but they under-
take to consolidate and explain the law upon the particular subjects
which they discuss, and for which purpose all the Reports, ancient as
well as modern, are resorted to. Such treatises, with such corrections
as the Legislature only can make, and which can seldom be well
directed, unless a comprehensive view can be readily taken of the
whole subject, tend to place the law on a just foundation. The
authorities are not likely to harmonise unless they are collected and
the entire subject considered. It is then that the discrepancies and
departures from principle are for the first time observed. In such
works discussion and, it may be, respectful disapprobation may be
allowed, for their observations can only become law by force of their
own weight, which may lead to their adoption by the learned Judges.
Happily they are not law, but such works have more than the advan-
tages which can be offered by an authorized Code, which is to be
HISTORY OF “THE LAW REPORTS.” 105

binding upon us as law. It would seem to be wise, therefore, not to
attempt to condense, correct and consolidate the Reports, ancient or
modern,
Str. Lronarps.
12th February, 1864.

G. W. Hemmine, Eso.

My pear Hoprwoop,

T send you a note of what has occurred to me on the subject of re-
porting, although I confess I can suggest nothing but a choice between
two plans, each in many respects open to criticism. J think it may
be assumed that very strong objections exist to the present system of
reporting, but I doubt much whether the Bar are at all agreed as to
what the objections are.

The following are the points most dwelt upon :—

1. Singleness and authority in the Reports are insisted on on one
side as essential to certainty in the law, while on the other competi-
tion and multiplicity are supposed to insure greater general accuracy,
though at the expense of occasional conflict and uncertainty.

2. Multiplicity of Reports is objected to by some as entailing on
the Bar needless labour and useless expense, while others extol the
system as affording the best possible education to a large body of
industrious juniors.

3. Self-constituted and competing Reporters are supposed to be a
greater check upon negligence, whether on the Bench or in the re-
porting staff, than would be supplied by an official staff of Reporters,
while against this it is argued that the free trade system invariably
leads to the reporting of a dozen worthless cases for one of real value
as a landmark of the law.

It is obvious that the Committee must come to a decision on these
three main points hefore taking practical difficulties into consideration.

For myself I feel very strongly that there is much weight in what
ix said on both sides, and that the only thing to be considered is
the balance of inconvenience as between free reporting (which is sub-
stantially what we have at present) and some form of official report-
ing, which is the only alternative. I see no middle course.

If the Committee are in favour of a free system, they must be con-
tent to perpetuate the expense and multiplicity now so much com-
plained of, and to see shoals of cases printed half a dozen times over
which never ought to get into type at all. While fifty barristers are
doing the work of ten, and five or six printers are employed going
over the same ground, no shifting of the conditions of competition will
ever materially reduce the cost of the Reports. Until one set of
106 HISTORY OF “THE LAW REPORTS.”

Reports substantially occupies the whole field there can be no real
economy. Neither can there be any check on the monstrous growth
of the Reports.

Again, if an official system, under whatever shape, is adopted, the
Committee must, I thiuk, be prepared to face many real objections.
Without any arbitrary exclusion of ephemeral Reports from the
privilege of citation in Court, (which I think would be most unjust,)
an official set of Reports, if issued, as they should be, at moderate prices,
would end by destroying all rivals; and an occupation, which is of all
most useful to a young barrister, would be taken away from four-
fifths of those who are now improving themselves by it. At present
the effect is, that practising barristers are indirectly taxed both in
purse and in time to provide their younger brethren with useful
training ; and it is a question to be considered whether the Bar have
or have not a right to protect themselves both against the pecuniary
mulct and the deluge of unnecessary law to which they now submit.

But I think it is idle to dream of keeping up ephemeral Reports on
their present scale side by side with an official set published at a
moderate price. The practical working of price is this, The small
Bar circulation, counted by hundreds, is not much affected by it, but
the large country circulation, counted by thousands, depends almost
entirely upon price. If the country market were taken away from the
periodicals, as it would be by cheap official publications, the ephemeral
Reports could never sustain themselves, and the result, whether for
good or evil, would be a single set of Reports.

Another drawback to an official system would be the extreme
difficulty of arranging the patronage.

At present, when a regular Reporter requires assistance, he practi-
cally nominates his colleague, subject to the approval of the Judge.
Both the old Reporter and the Judge have every inducement to select
the best man, and the Reporter has ample means of judging, by trial
if he pleases, or at any rate by observing who are the most efficient
among the Reporters for the different periodicals.

On an official system all this would be changed. The Reporter
would have no voice in selecting his colleague or successor, and
wherever the patronage was lodged, and however purely it was
administered, there would be no partially-trained body of Reporters
as there is now to select from, and no such intimate knowledge as a
Reporter himself can easily obtain of the qualifications of this or that
colleague. I fear, therefore, that a system of patronage could not be
depended on for the selection of the most efficient Reporters.

J do not think so much of a suggestion often made that a salaried
official would be likely to neglect his duty. Nothing of the sort
occurs in the House of Lords or the Privy Council. The supposed
HISTORY OF “THE LAW REPORTS.” 107

stimulus of competition under the present system is almost imaginary,
and I believe that, whether under a free or an official system, the only
operative inducement to care and industry is supplied by a man’s
regard for his own credit, —a feeling which would be quite as strong
in the case of an official as in that of a barrister who takes up re-
porting in the expectation of being able to throw it aside after two or
three years.

I have putas fairly as I can what seem to me the chief objections to
the free and the official systems respectively. It is perhaps not very
material whether the arguments on the one side or the other strike
me as the more weighty, but if I am to give an opinion I confess I
feel little hesitation in the matter. The monstrous absurdity of
smothering the law in a mass of printed Reports, all the pith of which
might be condensed into perhapsatenth of its present bulk, does, I think,
outweigh every other consideration : and I am satisfied that no remedy
will ever be found for this evil except in some kind of official system.

As to the details of such a plan, I do not see how an Executive
Committee of the Bar would ever be able to carry it out. If all other
difficulties were removed (and there are many), the vast sums which
it would be necessary, not indeed to pay but to guarantee, would
probably prove a serious obstacle. All that any Committee could do
would be to suggest plans, to be carried out by the Lord Chancellor,
backed by Government authority, so far as the pecuniary part of the
project was concerned. What I should like best to see would be a set
of Official Reports, printed by the Queen’s Printer, and sold like other
public documents for the mere cost of the paper; but if this were
objected to, it would be very easy to fix an extremely low price which
would just suffice to cover all expenses after the first few years, during
which it would be necessary to incur some loss.

The patronage is the greatest difficulty. I don’t see the objection
to the Judges retaining the sort of veto which they exercise at present,
though Iquite agree that the Judge ought not to control the Reporter in
any way, and for myself, I may say I have never known such control
to be attempted. The mere revision of proof sheets, to correct clerical
errors or chance misapprehensions, is, I think, useful, and is never
(so far as my experience goes) abused so as to alter in any way the
reasoning of a judgment. The present relations between the J udge
and the Reporter would not, I think, be improved by formally vesting
the absolute patronage in the Judge of each Court.

It has been suggested that the appointments might be vested in a
Committee of the Bar, but I don’t think this would work, and I
should scarcely expect that the Government would give salaries
without retaining the absolute patronage in the hands of the Executive
or the Bench.
108 HISTORY OF «THE LAW REPORTS.”

This leaves no alternative but to vest the appointment of Reporters,
like other legal appointments, in the Lord Chancellor. I doubt
whether any Lord Chancellor would get such information as would
enable him to make the best selection, but I see no other course.

Another objection has been sometimes taken to this course, viz.,
that there would be something unconstitutional in making Reporters
dependent on Government, and so giving to the Executive a sort of
control over the manufacture of law. But I don’t see that this is
more substantial than a similar objection to the appointment of judicial
and other legal officers, for I assume that Reporters would be appointed
during good behaviour, and that, except in very rare cases, it would
never become necessary to removethem. Lastly, as a matter of detail,
I think that Reporters should not be excluded from practice. I know
there will be the temptation to neglect the official duty, and to
leave everything to assistants; but, on the other hand, J doubt if any
man out of practice would make a good Reporter, and of course, pro-
hibition of practice implies a higher salary than would otherwise be
necessary.

In conclusion, let me repeat, what I am most anxious to impress on
the Committee, that a choice of evils is all that presents itself, and
that it is idle to indulge in vain complaints of the present system,
unless the evils of an official plan are thought more tolerable. I have
heard several compromise plans spoken of, such as subsidising the
present Reporters and putting them on terms as to price, promptitude,
and the like; but I have not met with any suggestion of the kind
which struck me as feasible. Ido not believe that any middle course
between the existing plan and official reporting can possibly be
devised. It will be for the Committee to choose between these two.
I will only add that if there is any information as to the practical
working of the present plan of reporting which the Committee would
like to have, Ishall be most happy to give them all the details in my

power.
I am, yours very sincerely,

G. W. Hemmine.

K. E. Kay, Esq.

7, Stone Buildings, Lincoln’s Inn,
16th February, 1864.
GENTLEMEN,

I may perhaps be pardoned for offering some suggestions on the
subject of Law Reporting. I have been for some years one of the
authorized Reporters, and, when I had the honour of holding that office,
J, in conjunction with my brother Reporters, made an earnest effort to
HISTORY OF «THE LAW REPORTS.” 109

bring about a reform in the existing system, and I have then, and since,
felt a great interest in the subject.

What is wanted is a well-contrived system of reporting, which
should give the best possible security to the profession for the issue of
a series of Reports which shall be :—

1. As inexpensive as is practicable :

2. Issued with the utmost despatch: and

3. Containing well-chosen cases, more concisely reported.

These chief requisites should be fulfilled in a manner which will
supersede, by rendering useless, most, if not all, the existing series of
Reports.

How to accomplish this is the difficulty to be solved.

I believe that any plan for doing so, by giving exclusive privileges
to one set of Reports, is practically impossible, and, if possible, would
be an evil.

The only legitimate mode of attaining the desired object, and as
I believe the only practicable one, is by establishing a system, which
shall command the thorough confidence and goodwill of both branches
of the profession. If this can be done, a very large circulation may
be obtained, and with such a circulation a good series of Reports
would not only support itself, but be profitable.

“The Law Journal” had, and probably now has, an issue of about
3000 copies. Any publication which could supersede the others,
would obtain an issue of at least 5000. This at £3 a year for all the
Reports, would produce a yearly income of £15,000. I believe that
all expenses of printing and publishing would be less than £100 *
a year, and the surplus would be sufficient to remunerate the staff of
Reporters and Editors.

But, however good the system, some time must elapse before so
large a circulation can be obtained. It is necessary to provide for
this interval. For this purpose a considerable fund is requisite.

Parliament will never grant money for such a purpose.

The Suitors’ Fee Fund has a surplus income of many thousands a
year, and this has always seemed to me a most proper object to which
to apply it. This, however, from the mode in which the Suitors Fund
is regarded by those who have the control over it, appears to ke hopeless.

There remain but two alternatives. The money must be raised
either, 1. Bya voluntary subscription. 2. Or by an association in the
nature of a chartered or joint stock company.

The last seems to me the most practical expedient.

I would invite the co-operation of the leading members of both
branches of the profession to form an association, which should be in-
corporated by charter.

* Probably a mistake for £10,000.
12
110 HISTORY OF “THE LAW REPORTS.”

By the constitution of such society it should be provided, that its
object should be to publish, and preserve in the best possible manner,
the judicial decisions of cases of importance in all the Superior Courts,
so as that the publication should be in the form and manner most
convenient to the profession.

For this purpose a committee should be formed, consisting of, say,
the Attorney-General and Solicitor-General for the time being, three
Equity Q.C.’s, three Common Law Q.C.’s, two juniors, one from either
Bar, and at least two eminent London solicitors. This committee
should have power to engage the services of gentlemen of the Bar as
Reporters and Editors, and to add to or supersede them when neces-
sary. The management of all other matters of detail should also be
committed to them. The receipts from sale of the publication should
be applied in paying all expenses, providing a proper remuneration
for the Reporters and Editors, and paying a dividend never exceeding
£5 per cent. on the subscribed capital.

All surplus receipts to be applied in reducing progressively the
price of the publication.

But I regard it as essential that the remuneration of the Reporters
should be made directly dependent on the success of the Reports, to
give that stimulus which excites every one to his best efforts. And
therefore a minimum yearly payment should be fixed, and this should
increase in a predetermined ratio, as the circulation of the series
augmented.

The profession have become accustomed to receive, by such publica-
tions as ‘‘The Jurist” and “ The Weekly Reporter,” a weekly issue
of Reports to the latest date, and this has been found a great con-
venience. I believe that to insure a large circulation it will be
necessary to have a weekly issue. Some provision to this effect should
be made.

The Lord Chancellor should have a veto uponany alteration of therules.

The Committee should be bound to issue a printed Report of its
proceedings at least once a year.

Meetings of the association should be held yearly.

There should be power to call extraordinary meetings.

The place of meeting should always be one of the legal centres, say
Liucoln’s Inn Hall.

The vitality of the Committee should be ensured by rotation, retire-
ment, and fresh elections, as provided by the Companies Clauses Act,
or in some similar mode. In every possible manner the staff of Re-
porters, and the Editors, should be made subject to their direct super-
vision, and the Committee themselves to the control of the association,
so as to ensure by constant mutual action the most efficient discharge
of their respective duties.
HISTORY OF “THE LAW REPORTS.” 111

I believe that the undertaking would be more certain of success if
the Reports were commenced at a yearly price not exceeding £3. It
would be easier to secure a circulation of 5000 copies at this price than
to obtain a circulation of 2000 at £5 a year.

An association of this kind originated by your Committee, supported
by the leading members of all branches of the profession, having a
carefully-framed code of rules, would find, I believe, a large and cordial
support. :

Reports so issued would supersede the existing series (which are
mere bouksellers’ speculations), or most of them, in a manner at which
no one, not even the booksellers, could fairly cavil.

Most of the present authorized Reporters would, I believe, willingly
accept reporterships so instituted. There is no lack of thoroughly
competent persons who would gladly perform this duty.

I am, Gentlemen, very respectfully yours,

Epwarp E. Kay.
The Committee of Law Reporting.

Joun Pearson, Esa.

16, Old Buildings, Lincoln’s Inn,
16th February, 186-4.
Dear Sir,

In compliance with the request contained in your letter of the
20th of January, I venture to offer a few remarks on the present
system of Law Reporting, and the mode in which it has occurred to me
that some improvement might be made init. I would premise that
my remarks are intended to be confined to the Equity Reports.

The crying evil of which the members of the Chancery Bar have to
complain is the badness of what are termed the “ Authorized”
Reports.

a. They are issued very irregularly, and are always more or less in

arrear.

b. They are very costly.

c. They contain a large number of cases which are useless.

It is, I think, very undesirable,—perhaps I might say impossible,—
to restrict the right to print Reports of cases heard and determined
in Courts which are open to all the world. The remedy, therefore,
for the existing evilis not to be found in establishing an “authorized ”
system of reporting and prohibiting any other.

The duty of Government in this matter is, I conceive, to see that
Reports of judicial decisions are supplied to the legal profession,
sufficiently full and accurate to enable the practitioner to know what
112 HISTORY OF “THE LAW REPORTS.”

the law, as expounded by the Judges, is. The cost of these Reports
ought to be so moderate as not to be unduly burdensome to those who
have to buy them.

If private skill and enterprise furnish such Reports the Government
need not interfere. Its duty is, I apprehend, to see that such Reports
are supplied, not necessarily to supply them.

Private enterprise has failed to secure to the profession such
Reports of judicial decisions as ought to be furnished; the time,
therefore, seems to have come when the Government should step in
and attempt to supply the deficiency. How is this to be done?

At present the Registrars of the Court are supposed to take notes of
everything material that passes in the argument of a cause, and in
the event of any dispute the Registrar’s note, if one exists, is generally,
if not always, considered conclusive.

The Registrars are always in Court, they hear the entire argument,
and judgment, and finally frame the decree. I would suggest that
the duty of issuing Reports should, to the extent to be presently
mentioned, be thrown upon the registrars.

Short-hand writers should, I think, be attached to each Court,
whose duty it should be to take every judgment pronounced by the
Court, and every judgment should be written out, signed by the
Judge pronouncing it, and preserved in the same way in which
decrees are now recorded.

These short-hand writers might be allowed for their own profit to
take notes or make copies of any notes taken by them for suitors:
and with this privilege I apprehend their services might be obtained
without any great expense.

The pleadings, the Registrar’s notes, the judgment and the decree
would furnish all the materials requisite fora Report. The Registrar
must, of course, take fuller notes of the argument than he does now,
and whilst I know of no reason which should prevent his doing this,
there would result from its being done this great advantage, viz.,
that the records of the Court would show at all times what points
were raised, argued and decided in each case. From these materials
a certain number of cases might be selected to be reported. My
present impression is, that three volumes might be usefully published
in the year; one in Hilary Term, containing cases decided between
November and Christmas; one in Easter Term, containing cases
decided between Christmas and Easter; and one in the Long Vaca-
tion, containing cases decided after Easter.

The cases reported should be selected indifferently from all the
Courts. No fixed number should be reported, but such only as are
likely to be useful. In many cases a short statement of the pleadings
and a full statement of the decree would answer every purpose.
HISTORY OF “THE LAW REPORTS.” 113

The type and price of the volume should be as good and as low as
will be consistent with no loss being incurred in the publication.

I have only to add that if this plan were adopted some addition
must necessarily be made to the staff of Registrars. What this
addition should be, or in what way the duties of reporting, which I
propose to entrust to them, should be discharged, as regards the dis-
tribution of them amongst the Registrars, can be determined only
after communication with them, and I therefore purposely forbear to
enter upon these details.

The benefits which the adoption of some such plan as I have
suggested might, I think, secure to the profession, are the follow-
ing :—

1. The records of the Court would be made more complete than
they are at present.

2. The Reports would be issued by officers of the Court, who would
have the amplest means of making the Reports accurate.

3. The regular issue of the Reports would be under the control of
the Court, whilst the Reporters would be independent, holding office
dum bene se gesserint.

4, The Reports would be cheaper than the present authorized Reports.

5. The Registrar would select only such cases as deserved reporting,
being not bound to the publication of any fixed number.

6. Independent reporting, with which this plan would not interfere
would supply any deficiency in the Registrar’s Reports.

These are the suggestions which I have to offer in compliance with
the request contained in your circular letter, and I venture to lay
them before the Committee, in the hope that even if they should be
judged worthless, they may have the good fortune to elicit some
better scheme.

Tam, dear Sir, yours faithfully,

JOHN PEARSON.
J. T. Hopwood, Esq.

Messrs. F. 8S. Rertty, Wotstennotme, R. O. Turner, C. M. Roupreit
AnD H. F. Bristowe.

In answer to the circular of the Committee we submit the following
Scheme and Remarks :—

ScHEME,

’ 1. That an endeavour be made to induce the regular Reporters, and
the publishers of the regular Reports, to act together according
to the arrangement following (in which, if possible, the Reports
114

10.

11.
12,

13.

14.

15.

16.

HISTORY OF “THE LAW REPORTS.”

of the House of Lords and of the Privy Council should be
comprised).

. That, in lieu of the present mode of publication, the regular

Reports be brought out together, but so as to be separable into
divisions for Law, Equity, and so on, and also into a series for
each Court, if the purchaser so wishes.

. That a volume or part be published monthly or at other fixed

periods.

. That there be a Committee of Management elected by the

Reporters from among themselves.

. That a proper number of Editors to superintend the several

divisions (Law, Equity, and so on) be chosen by the Reporters
from among themselves, or be appointed by the Committee.

. That the first Reporters under this arrangement be the present

regular Reporters.

. That, as vacancies occur, the number of Reporters be reduced to

one for each Court.

. That when the number has been so reduced in any Court, the

Reporter have an assistant (or assistants).

. That the assistant Reporter for each Court be appointed by the

Reporter for the Court, subject to a veto by the Committee.

That the first assistant Reporters be selected from among those .
now employed in reporting for other than the regular Reports.

That assistant Reporters be alone eligible to reporterships.

That assistant Reporters be entitled to fill vacancies in the office
of Reporter, not however each in his own Court, but the
assistant reporters for all the Courts of Equity, for example, to
form one class, and to be promoted to reporterships according
to standing in the class.

That the Reporter and assistant Reporter for each Court distribute
the work as they may arrange between themselves, but that
one of them be required to be always present in the Court
during its sitting.

That (in addition to the complete Reports) there be brought
out, weekly, preliminary Notes of Cases, under the superintend-
ence of an Editor or Editors chosen by the Reporters and
assistant Reporters from among themselves, or appointed by the
Committee.

That there be brought out yearly under the direction of the
Committee a digest of or index to all cases reported during the
year in the regular Reports, Notes of Cases, or elsewhere.

That subscriptions be received for the whole body of Reports, or
for any division or divisions, or for the series of any one or
more of the Courts, with or without the Notes of Cases.
HISTORY OF “THE LAW REPORTS.” 115

17. That the proceeds of the sale of the Reports and of the Notes of
Cases be carried to a common fund.

18, That out of the common fund there be paid all expenses of
editing and publication (including the expenses of the Com-
mittee.)

19. That, next, out of the common fund there be paid to each
Reporter a reasonable fixed salary of equal amount in all cases.

20. That, next, out of the common fund there be paid to each
assistant Reporter a reasonable fixed salary of equal amount in
all cases.

21. That, lastly, the residue of the common fund (subject to any
reservation for meeting contingencies or other purposes) be
year by year apportioned by the Committee among the
Reporters and assistant Reporters, according to the amount of
subscriptions received for the year for the several divisions of
the Reports, or for the series for the several Courts, so that the
total remuneration of each Reporter and assistant Reporter may
as far as possible be proportionate to the demand for his

Reports.
22. That, ultimately, if this arrangement succeeds so as to produce
for each Reporter an income of £ a year or upwards,

Reporters be required to relinquish professional practice.

23. That if the regular Reporters concur in this arrangement, but
the publishers of the regular Reports do not, then the Reports
be published by the Committee.

24. That in either case the receipt of subscriptions be under the
control of the Committee.

25. That in either case the copyright in and the right to use the
name of and to continue the series of Reports established under
this arrangement be vested in trustees, in trust to support this
arrangement.

26. That every person accepting a (principal) reportership under
this arrangement be required to undertake that he will not at
any time afterwards set up or be concerned in any other series
of Reports, and generally that he will conform to the regula-
tions from time to time made by the Committee.

27. That the Committee publish annually a statement of their
accounts, with statistical information shewing cases published,
arrears for the year, and other particulars illustrative of the
working of this arrangement.

28, That there be a small Committee of members of the Bar and of
attorneys and solicitors (nominated respectively by the Benchers
of the four Inns of Court and the Incorporated Law Society)
to watch over the interests of the profession in relation to the
116 HISTORY OF “THE LAW REPORTS.”

Reports, particularly with respect to the quickness and regu-
larity of publication, and the price, and generally to bring the
opinion of the profession to bear, so as to better effectuate this
arrangement and check any evil consequences that the absence
of actual competition with the regular Reports might tend to
produce.

REMARKS.

The acknowledged evils of the present state of things seems trace-
able almost entirely to two causes; first, that the regular Reporters
do not co-operate; secondly, that they are not under any definite
control. The Scheme we have submitted is calculated to supply what
is wanting in both respects.

If the benefits of some such organization and system of check were
superadded to the advantages of position which the regular Reports
already enjoy, there appears no reason to doubt that the increase
of sale on the one hand, and the diminution of expenditure on the
other, would be such that ample funds would be supplied for the
adequate remuneration of well-qualified Reporters devoting their whole
time to the work, and for meeting all other expenses, and that before
long all competing Reports would be given up as profitless.

There would seem therefore to be good grounds for expecting that
not only the regular Reporters, but also the publishers of the present
regular Reports, would concur in such an arrangement. If the
publishers did not concur in a body, it would seem desirable that the
publication should be retained in the hands of the Reporters them-
selves. Great care should, we submit, be taken, in any arrangements,
to prevent the growth of new extra-professional interests by which
the introduction of further improvements might be thwarted.

In addressing such a Committee it would be superfluous for us to
dwell at any length on considerations tending, in our opinion, to shew
the impracticability or inexpediency of more violent measures for
getting rid of competition among Reports. We will only, in conclu-
sion, refer briefly to four of the most important of the views that have
at times been put forward.

1. The doctrine that law reporting is a function of the State, even
if conceded to be defensible & priori, is, we conceive plainly inappli-
cable to practice under existing circumstances.

2. We submit that it would be highly inexpedient (if it were
practicable) to cast upon the Judges the task of performing directly
or indirectly, those duties which have hitherto been, and ought (as we
think) to continue to be, discharged by functionaries independent of
the Bench; and that it is undesirable even to acknowledge in any
formal way any authority whatever ina Judge to control the recording
HISTORY OF “THE LAW REPORTS.” 117

and publishing, for professional information, of the opinions delivered
by him in open Court.

3. Any form of reporting by which the facts and pleadings were
recorded merely as they were dealt with in the judgment of the Court
would, we think, be insufficient for professional guidance.

4. The suppression of the unauthorized Reports (as they are termed)
by means of a refusal on the part of the Courts to allow them to be
cited, would not, we think, meet with the general support of the
profession, even if that course would be consented to by the Courts, or
could lawfully (which we venture to doubt) be adopted by them.

 

Vernon Lusaineton, Esq., anp Goprrey Lusaineton, Eso.

What the profession requires is a series of Reports which shall be
at once accurate, prompt, and cheap. The object of this paper is to
shew how far this want is not supplied by the present system, or
rather practice of reporting, and to suggest what seems to be a more
satisfactory arrangement.

Adopting the usual division of Reports into authorized and un-
authorized :-—

The authorized Reports are accurate, but they are always expensive
and generally in arrear. The arrear is caused either by the staff of
Reporters being inadequate, or by the Reporters being engaged in
private practice. The expensiveness we can only attribute to certain
traditional notions of dignity and importance attached to a handsome
octavo. In result these Reports have only a limited sale and limited use.

The unauthorized Reports, of which there are at least five con-
current series, are fairly cheap and fairly prompt, but they are more
or less open to the charge of inaccuracy and incompleteness (¢.g. want
of due indexes, insufficiency of statement, repetition, &c.). These
defects arise from various causes; from undue haste; from the diffi-
culty of obtaining the requisite materials ; from the Reporters being
insufficiently paid, or being paid according to the length of the Report,
occasionally from the Reporters having been absent from Court and
being obliged to frame their Reports at second-hand. These defects,
we think, have fallen under the experience of every one in the
profession ; they are excused because the Reports are prompt and
cheap. The co-existence of five different series is a sufficient proof that
the profession is not content with any one of them.

The multiplicity of Reports, authorized and unauthorized, lead
directly to two evils.

1. There are occasionally, almost frequently, conflicting Reports of
the same decision.
118 HISTORY OF “THE LAW REPORTS.”

2. All the various Reports are cited in the Courts and are more or less
referred to in the treatises, but no one person possesses them all.
The result to the practitioner is constant inconvenience and increase
of labour, and nothing but long experience can protect him from
having a case sprung upon him at the last moment, for which he
is unprepared, because it is recorded only in Reports not in his
possession.

We think it clear that the unauthorized Reports are properly only
temporary makeshifts, and that the cause and justification for them is
to be found in the short-coming of the authorized Reports. For once
suppose a single series sufficiently combining the qualities of accuracy,
promptness, and cheapness, would not all other Reports be simply a
nuisance ?

The question then is, whether such a single series can be obtained,
and if so, how? We think it can be obtained but by due official
arrangement, and not otherwise, and we also think that for an object
of so much importance an expenditure of public money would be
justifiable.

We think, therefore, that the judgments of each of the Superior
Courts should be officially reported.

We would propose,

1. That to each Court should be attached two, or, if necessary,
three reporting barristers, to be appointed by the Judge, and to hold
office during good behaviour. Salary, senior Reporter, £300 per
annum ; junior Reporter, £200, to be paid from Her Majesty’s Treasury.
Private practice to be allowed. This arrangement would avoid the
danger, on the one hand, of the Reporters neglecting their reporting
for private business, and on the other, of competent barristers de-
clining the office of reporting because incompatible with private
practice.

2. The reporting barrister to have an assigned place in Court, and
to have copies of all printed documents (if any) in every cause.
Each Court to have a short-hand writer at a fixed salary, under
engagement to furnish copy of his notes to the Reporters at a reduced
price.

3. The Reports to be printed and published by the Queen’s printer.
Tivery case worthy of a Report to be reported, and no others. Each
case to be published separately on a separate sheet or separate sheets.
Each case to be published with all reasonable despatch, and to bear
on its face the date of publication. Strict chronological order not
essential. Monthly or quarterly parts to be issued as convenient.
Paper, type, &c., to be chosen with a view to cheapness and con-
venience. he volumes for binding not to exceed 500 pages each, 80
as to be comfortably held in the hand.
HISTORY OF “THE LAW REPORTS.” 119

As to the manner of reporting, we have to say that this is a matter
entirely for the Reporter’s own skill and judgment. His guiding
purpose is to frame a record of the law declared by the Judge;
clearly nothing material to this purpose should be omitted ; clearly
also, everything immaterial should be rigorously excluded ; what is
material, what immaterial, the Reporter himself must in each case
judge. We must, however, observe that a good Reporter will by every
method strive to keep down the bulk of the Reports.

We are satisfied that it is not to be expected that Judges will alter
their mode of composing and delivering judgments. They will deliver
them, as heretofore, extempore, or on consideration, vivd voce or in
writing, as they find convenient, and will in each case state as much or
as little of the facts as they think fit. Hence it follows (as every
Reporter knows) that judgments will often omit statements of fact
which are necessary to the full understanding of the case. To supply
all such omissions is the duty of the Reporter, and the notion that
the publication of the bare judgment, as Mr. Westlake has suggested,
would be sufficient, is in our opinion illusory. The recent judgment
of the Privy Council in ‘‘ Essays and Reviews” strikingly illustrates
this view, so does the whole series of Sir Christopher Robinson’s
Reports.

We think that the accepted form of a Report is the right one; that
a Report should be framed so as to be read as a whole, commencing
with a careful statement of the material facts, then setting out any
statutory enactments, &c., cited in the argument or judgment ; then
stating the arguments of counsel on the legal points with reasonable
fulness, reasonable brevity, taking especial care to shew for what
purpose each authority is cited :—then the judgment of the Court.

From the judgment (as from the argument) we think all mere
questions of fact should be as far as possible excluded; the results, if
necessary, to be stated “ nettement,” with the utmost brevity. The
passages relating to the law should be faithfully reproduced ; literally
where convenient ; but even here we think some measure of reverent
discretion should be allowed the Reporter. (As a fact we are sure
that such a discretion is generally exercised.) In particular the
interlocutory observations of the Judge during the argument ought
not to be recorded, unless plainly important.

The proof sheets of the Report we propose should be submitted to
the Judge. The fears which some. persons entertain of Judges im-
properly tampering with the law which they have themselves pro-
mulgated are, we think, ill-founded.

In the case of long judgments marginal notes may be found con-
venient, if not too expensive.

The head-note prefixed to cach case again is a matter for the
120 HISTORY OF “THE LAW REPORTS.”

Reporter’s discretion. Precision, brevity, clearness—these ought
plainly to be his aims.

As to Nisi Prius cases, we think that they should be sparingly
reported. It remains only to consider what, if anything, should be
done as to the Reports now current. So far as we have considered
the matter we do not think it necessary that compensation should be
made to any of the parties interested, whether reporters, publishers or
printers; but we would not wish any question of compensation to
stand in the way of the reform required. If the above scheme of
official reporting were adopted, the present authorized series would at
once cease, or at least cease to be authorized ; and if the system were
carried out with the honest support of the Judges and the profession
at large, we think all competitors would languish and come to a
natural end. After experience of the satisfactory working of the
Official Reports, it might be expedient to forbid the citing of any
other Reports. This would hasten the consummation.

In coming to the above conclusions we have not forgotten the
advantage many young barristers derive from reporting in one or
other of the unauthorized series ; but we think that this advantage,
which we admit is not altogether a private one, ought to yield to the
public good to be expected from a more correct, expeditious and
available record of the judicial law. We would also add, that the
establishment of an official staff of Reporters would probably lead to
an authorized re-issue in a condensed form of the voluminous Reports
now extant ;—a work which is every year becoming more urgent.

VerRNoN Lusuineton, | Barristers,

Goprrey Lusuineron,} Inner Temple.
16 February, 1864.

 

DaniEL Jones, Esa.

In considering the subject of the amendment of the present system
of Law Reporting, the question which necessarily takes precedence of
all others is the following :—Is it desirable that a particular set of
Reports should be exclusively authorized for citation in the Courts?
Until this preliminary question is decided, it is obviously premature
to discuss the details of any particular scheme.

The great objection to what may be called the exclusive system lies
in the power it vests in the Reporters of modifying the law according
to their ideas of what it ought to be. In this country a Judge is
bound to shape his decisions so as to be in harmony with the existing
rules and practice of his Court, and he avails himself of the decisions
and opinions of other Judges as evidence to guide him in ascertaining
HISTORY OF “THE LAW REPORTS.” 121

what those rules and practice are. To admit, therefore, one set of
Reports for exclusive citation, is to vest in the Reporters the power of
deciding what cases shall be received in evidence, and what rejected.
Judges no doubt may err, but they are at least as likely to be right as
Reporters, and it may therefore be questioned whether the public
interest would be advanced by constituting the latter a species of
Court of Review over the former. And even if the Reporters were
entirely indifferent to the question of the soundness of the decisions
reported, and were guided in the selection of the cases for reporting
solely by the consideration of their importance, yet it may be thought
in the highest degree doubtful whether the power of deciding finally
and irrevocably what is of importance and what is not, could -be safely
and profitably entrusted to them. Of course it would be possible to
have an exclusive system, according to which the Reporters should
not have this extraordinary power, viz., either by vesting the power
of selection in the Judges, or by making it the duty of the Reporter
to give a full report of all cases, great and small indiscriminately.
Probably, neither of these plans would find many supporters; the
former is open to serious objections, which it is needless to set out
here, while the waste and expense which would necessarily attend the
latter are sufficient at once to condemn it.

Further, even if the Committee should be of opinion that the
advantages of an exclusive system are sufficient to more than com-
pensate the evils, it by no means follows that such a system ought to
be recommended for adoption. Regard must be had not merely to
what is desirable in the abstract, but also to what is practically
possible. It is probable that the great majority of the Bar would be
slow to support an entirely new system, which must.be to a great extent
experimental, that they would prefer to endure existing evils rather
than venture on a radical change, unless the resulting advantage were
clear and demonstrable. Then vested interests would have to be
dealt with, a fund provided to meet the outlay (which must necessarily
be large), and Judges induced or compelled to accept the new system.
Looking simply to the magnitude of the difficulties to be encountered,
and without prejudging the question of an exclusive system as an
ultimate scheme, it is submitted that it is not expedient at the present
time that such a system should be recommended to the profession for
adoption.

On the other hand, much may be done to amend the existing system.

It is to the interest both of the public and of the profession that
there should be a single series of Reports to which the practi-
tioner could refer with confidence that he would find there every
decided point of importance, that the Reports should be accurate,
issued with despatch, and at a moderate price. Any scheme that
122 HISTORY OF “THE LAW REPORTS.”

should effectually secure these advantages would probably meet with
that approval and support without which no important alteration
could be hoped for.

The following outline of a plan for consolidating and amending the
so-called ‘ Authorized Reports” is submitted. Let the reporting
staff consist of Editors and Reporters, probably four of the former and
about thirty of the latter would be necessary. It is a matter for
consideration by whom the appointments should be made—perhaps
a Committee of the Bar, as suggested by Mr. Daniel, would perform
the duty most advantageously. An arrangement could probably be
be effected by which the greater part of the present contributors to
the “ Authorized Reports” would accept appointments under the new
system. The Reporters should have liberty to practise, provided that
no private engagements were allowed to interfere with the due dis-
charge of their official duties. This is an essential feature, as on these
terms there would be no lack of able men willing to work at very
moderate salaries, while, if the Reporters were required to devote
themselves exclusively to the duties, a very large sum would have to
be paid for the services of competent persons. It is an equally im-
portant feature that the Editors should be required to devote themselves
exclusively to the duties. Otherwise there will be no sufficient
guarantee for excellence and despatch in the Reports. The Editors
should be barristers of first-rate attainments, and, of course, must be
highly remunerated. The fixed remuneration of the Editors and
Reporters would form part of the cost of producing the Reports, and
would be met by the sale; it might be desirable that they should
also take a share of the net profits, which might reasonably be expected _
to be considerable. The Editors would exercise a general superin-
tendence over all matters relating to the production and publication
of the Reports, One duty of the Editors would be to arrange the
sittings of the Reporters in the various Courts, so that one Reporter
should be present during the entire sittings of each Court. It would
be the duty of each Reporter to attend in Court during the time
allotted to him, but he would have the privilege of substituting the
services of another Reporter for his own when necessary. It would be
the duty of a Reporter to take full notes of every point decided by the
Court (except such as in his judgment were too trivial to be worth
reporting, even in a short and inexpensive form), together with the
reasons given by the Judge, and such other matters as are required
for a complete report, and he should, if necessary, have the assistance
of ashorthand writer for the purpose. The Reporter should forthwith
prepare a concise report of each case, and transmit the same to the
Editors for immediate publication, as hereinafter mentioned. The
Reports should be of two kinds, the preliminary and the permanent,
HISTORY OF “THE LAW REPORTS.” 123

though, to prevent misconception, it should be stated that the pre-
liminary issue would contain many points of minor importance which
would not be worth the expense of reporting in a completer form in
the permanent series, and of which, when needed for citation, the
original concise report would be sufficient. The preliminary Reports
should be issued weekly, and should contain clear and concise notices
(something in the style of the “New Reports ”) of all cases furnished
to the Editors, which, in their judgment, could be likely to be of use
as precedents, and the error should be on the side of reporting too
much rather than too little. The Editors should forthwith select all
such cases published in the preliminary issue as in their judgment
were of sufficient importance to be worthy of a place in the permanent
series, and should direct the various Reporters to rewrite such cases
for the purpose of publication in the complete form. The permanent
Reports should be issued monthly, and it would be the duty of the
Editors to use every effort to ensure that these Reports should be in all
respects as perfect as it was possible tomakethem. It would further
be the duty of the Editors to prepare annually an elaborate and careful
digest, comprising all points contained as well in the preliminary as
in the permanent Reports. Probably no difficulty would be found in
inducing the Judges to give that assistance in the revision of their
judgments which they now give to the “ Authorized Reports,” and,
perhaps, arrangements could be made whereby the regular Reporters
would have special facilities in obtaining papers. To this extent the
regular Reports would have an advantage over their competitors, but
in all other respects they must make their way by merit only. Much
no doubt would depend on the manner in which the Editors and
Reporters discharged the duties and exercised the discretions entrusted
tothem. They would, however, have sufficient motive for exertion.
They would have the direct inducement of profit, and they would also
be exposed to the criticism of competitors eager to point out mistakes
and omissions. A further stimulus in the shape of an Annual Report
by a Committee of the Bar might perhaps be applied with advantage.
Under these circumstances it is not too much to expect that the
regular Reports, modified as proposed, would be far superior to any
others in all essential respects, that they would (and especially the
preliminary issue), if sold at a moderate price, command a large sale,
and the system thus be self-supporting. Possessed of the double set
of regular Reports the practitioner would never be under the necessity
of searching elsewhere. For these Reports must contain, in one form
or other, a report of every case in any degree worth reporting, and in
the great majority of instances a better report than could be found
elsewhere. Finally, there would be no interference with existing
interests, except in the casc of the proprietors of the prescnt authorized
K
124 HISTORY OF “THE LAW REPORTS.”

Reports, who could be compensated by a share of the new work.
Publishers would be at perfect liberty to produce a better and cheaper
article if they were able to do so, and their efforts in this direction
would act favourably on the regular Reporters. It is, however,
probable that, assuming the new system to be well conducted, in the
end one or two sets of irregular Reports at the most would be able to
maintain themselves.

 

JosHua WILLIAMS, Esq.

The present system has arisen from the default of proper records of
their own proceedings being kept by the Courts. The privilege which
the Bar has of reporting cases comes to this, that any barrister may
inform the Court of that which the Court might much better know
from its own records.

The evils of the present system very much arise from the fact that
some Reporters, called authorized, are furnished by the Judges with
notes, to which the others have not access. These Reports are bought
for their presumed accuracy, whilst others are bought for their ex-
pedition, and others again for the sake of obtaining what the rest may
miss.

No remedy appears to me sufficient which does not strike at the
root of the evil. It would be desirable that all judgments should be
written ; but this appears impracticable. I should therefore propose
as follows :—

That it be the duty of the Registrar to record the names of all
solicitors concerned, and of all counsel who appear in any cause or
matter argued by counsel, the points for which they contended, and
the authorities cited by them. Counsel and solicitors should be bound
to assist the Registrars in these particulars when required.

That each Registrar be assisted by one or more shorthand writers,
whose duty it should be to take down the remarks of the Judge, and
especially the judgment, and any remarks by others which may be
necessary to render them intelligible.

That the shorthand writers’ notes be written out as soon as possible,
and furnished to the Registrar.

That it be the duty of the Registrar from these notes and his own
recollection, with the assistance of the Judge, should he think fit to
give it, to prepare a record of the case, containing the particulars
above mentioned and the formal decree.

That this record be ‘printed as soon as possible by the Queen's
printers on paper of a given shape, each cause being on separate
paper, and the transactions of each day being printed the next, if
possible, or within two or three days at least.
HISTORY OF «THE LAW REPORTS.” 125

That the records so printed be published and sold at a low price,
with liberty to any person to reprint the same.

That the record so made may be amended by the Court on sufficient
evidence of its inaccuracy.

That the record so made be evidence in the same manner as the
records of the Courts now are.

Here I would stop.

Reports would still be necessary; but the privilege of the Bar as
Reporters would not be required for the benefit of the Court. Any
member of the Bar should, however, have free access to the pleadings
and evidence of record in the Court, for the purpose of reporting or
verifying Reports for the benefit of the profession and the public. A
full history of every suit would be in the possession of the Court.
Abstracts of the pleadings and evidence, more or less concise and
skilful, would be made by Reporters for the convenience of the profes-
sion. All Reporters would be on a level, and all would be furnished
with the raw material, so that “authorized Reports” would neces-
sarily cease.

There would be no chance of any case being missed by the Reporter.

Reports long relied on as authentic would not, as now, be liable to
be set aside by reference to the Registrar’s book; for the printed
records of the points argued and the judgment given in each case
would be at once circulated in the profession.

No person would need to take in more than one set of Reports.
And the best would consequently in time drive out the others.

Competition would thus produce both excellence and cheapness.

The making a clear and concise statement of facts, and above all a
good marginal note, may be done so much better by one than another,
that I think it is not of a nature to be trusted to any official person.
What is official should be dry and accurate merely. The bare facts
should be presented officially. Abstracts and digests, now called
Reports, appear to me essentially the subjects of open competition,
rather than of official protection.

The printed records proposed would often be of great service to the
parties to the cause, and to the Court on appeal, and to purchasers
and others in the numerous cases in which Chancery proceedings
form part of the title to lands.

The Reporters now engaged or some of them might be appointed as
additional or assistant Registrars. But under this Scheme no com-
pensation could fairly be required by any Reporter.

The remarks above made are principally applicable to the Courts
of Chancery, which, however, appear to be more in need of reform in
reporting than the Courts of Law.

T think that a Joint Stock Company, Limited, formed by members

jap
126 HISTORY OF “THE LAW REPORTS.”

of the Bar for the purpose of reporting, would probably succeed. But
I should not think it within our province to recommend the formation
of such a Company, nor should I be inclined to act as a promoter of
such a Company.

T think that the elimination from the law of derlewet and contra-
dictory matter would be best effected by an officer of high legal
attainment and of high rank, whose duty it should be to watch the
current of decisions, to receive from the Judges communications as to
points on which serious difference prevails among them, and to submit
bills to Parliament from time to time, with a view to the amendment
and simplification of the law. It is well known that all the great

legal officers of State are far too much occupied to give to the subject _

of law improvement the minute and patient attention which it requires.
But I doubt whether it would be within our province to suggest the
appointment of such an officer.

J. W. De L. Girrarp, Esq.
GENTLEMEN,

I had not intended at first to obtrude my views upon the
attention of the Committee, feeling that my position as a Reporter
would expose me—and in some degree justly perhaps—to the suspicion
that I was incapacitated from forming an impartial opinion upon the
question before the Committee. Upon reflection, however, I have
arrived at the conclusion that the Committee may not be indisposed to
hear all parties, and I therefore venture respectfully to offer a few
suggestions for their consideration.

The first step in the curative process is a knowledge of the disease
and its origin. It has been determined by authority that “the
present system of Law Reporting is defective, and requires amend-
ment.” The defects of that system are, I imagine, equally well
acknowledged. They are these :—

1st. The number of the concurrent series.

2nd. The annual expense of purchasing them.

8rd. The uncertainty and delay in their publication.

4th. The imperfect manner in which they are prepared.

The fons et origo malorum is attributable, in my opinion, to the
Reporters of a former time, who, when reporting was highly remuner-
ative, retained their office long after their professional practice made
it impossible for them to discharge the duties they undertook. This
proceeding led to delay in publishing the Reports, and occasionally,
as in the case of the last part of “5th Russell,” to the suppression of
the Reports altogether; and this misfcasance, or nonfeasance, on the

 
HISTORY OF “THE LAW REPORTS.” 127

part of the Reporters led to the recognition by the Bench and by the
Bar of those other series of Reports which recently have increased far
beyond the public requirements.

At present the evils of which the profession justly complain originate
almost entirely, as I venture to think, in the existing competition
that prevails. Competition, where the demand for any article is
practically unlimited, operates beneficially, because, in such cases,
there is a prize to be won, and the result of the competition to the
public is, the obtaining the best article at the lowest remunerative
price. But, on the other hand, where the demand is limited, compe-
tition not unfrequently leads to the ruin of all parties concerned, and
to the production of an inferior article at an exorbitant price. This,
I venture to think, is very much what has happened in the case of the
Reports. There are numerous competitors for a circulation which is
little more than enough to afford adequate remuneration for one or
two. I think this may be proved with reasonable certainty.

Assuming what I take to be indisputably true, that the circulation
of the Reports is, and must ever remain, almost exclusively confined
to the members of the legal profession, the following statistics, which
I believe to be substantially correct, will shew the probable circula-
tion :—

Number of country solicitors as given in the Law List for

1863 5 * 5 #5 ‘ . + 3,168
London solicitors, ditto ditto : a < . 3,019
Number of counsel as given in the Post Office Tyiveeians as
holding chambers, including conveyancers and special
pleaders not at the Bar : : - 1,959
The number of the solicitors for the present purpose would have to be
reduced in order that the number of firms of solicitors might be ascer-
tained. It would be difficult to do this exactly, but inasmuch as
many firms consist of three and even more members, and as many
solicitors take in no Reports at all, I think it would not be very far
from the fact if I were to assume that one half the town and country
solicitors given in the List are subscribers to one or other of the
series of Reports.
The required number would therefore be, disregarding a

fraction 5 . 38,0938
The list of counsel piven i in be Diteotaigy ‘er 1863, tnitidies

County Court Judges, Magistrates and others not engaged

in the practice of the profession. Supposing the number of

these gentlemen who take Reports to be 1500, the figures

will stand thus. 5 4 ‘ : s 3 . 1,500

Total ‘ ‘ . 4,593
128 HISTORY OF “THE LAW REPORTS.”

But as there are some counsel domiciled in the country who take
the Reports, and there is also a circulation in America and in the
British colonies, although of no great amount, I think the number of
subscribers to one or more of the series of Reports may be assumed to
be about 5000. For these 5000 customers there are the following
competitors :—

The Authorized Reports.
“The Law Journal.”
“The Jurist.”

“The Weekly Reporter.”
“The New Reports.”

If the circulation were equally distributed among these five candi-
dates, it seems clear that, except at a very high price, none of them
could be sold at a profit. On the other hand, if any one engrossed
the whole of the custom, such publication could afford a higher scale
of remuneration to the Reporters, and could be offered to the public at
a comparatively moderate price. I ought to observe here, that when
I speak of authorized Reports, I refer to Reports in Equity alone, for
of the authorized Reports at Law I know little or nothing; I do not
include the House of Lords.

The circulation of the different series is supposed to be on an
average nearly as follow :—

The authorized Reports, each series about ‘ 450

(1) “The Law Journal”. : ; : . 4,000
“The Law Times” ‘ : ‘ : . 8,000
“The Weekly Reporter ” . : : . 1,500
“The New Reports” (say) . 4 : j 100
Total circulation ; . 9,050

 

If these figures be reasonably accurate, it would appear that most
of the 5000 subscribers take a second series, and this probable infer-
ence accords, I believe, with the fact. Most of the subscribers to the
authorized “ Reports” take “‘The Weekly Reporter,” or “ Jurist,” or
“Law Journal,” and sometimes two or more of these publications.

I have stated above, that if one or two of these competing series of
“Reports” enjoyed the whole of this circulation, the profession might
have a better or cheaper, and in the case of the authorized “ Reports,”
both better and cheaper Reports than can be had at present.

Let me begin with the authorized “ Reports.”

The selling price of the authorized “ Reports” is generally at the
rate of about 1s. per sheet. A volume of forty-four sheets would

(1) I put the Law Journal at 4000, because that is generally supposed to be
the amount, but I believe 3750 is nearer the amount.
HISTORY OF “THE LAW REPORTS.” 129

therefore cost the profession 44s., but it would yield to the proprietor
only that amount less 30 per cent. trade discount and commission.
On a circulation of 400, the figures would stand thus :—
400 x 44s. less 30 per cent. = 400 x £1 10s. Sd. . £613 6 8
Put the expense of printing and paper at £6 per sheet. 264 0 0

Balance . : . £349 6 8

Let me now take the circulation at 2000, and the selling price at
Gd. per sheet, and the figures will stand thus :—

2000 copies at £1 2s. = £2200 less 30 per cent. -£1,540 0 0
The paper for 2000 copies would be 200 reams, and at

£1 5s. per ream would amount to . 7 . 250 0 0
Printing at, say £4 per sheet ‘ : , . 176 0 0

The result would be as follows :—
Gross receipts (less trade discount) £1,540 0 0

 

 

Paper ‘ ; j . : 250 0 0
Printing. ‘ : ‘ ; 176 0 0
£426 0 0

£1,540 0 0

Less 426 0 0

£1,114 0 0

 

Therefore the ordinary octavo volume of the authorized series in one
of the Vice-Chancellor’s Courts would, if sold at half the present price,
produce on a circulation of 2000, £1114 clear of all expenses, and after
allowing for the enormous trade discount and commission. If two-
thirds of this amount were saved—which upon a well-organised
system could be easily done,—there would be a fund of above £1500
a year available for the payment of the Reporters and the gradual
reduction of price.

I will now consider “The Law Journal” as being the most success-
ful of the unauthorized series of Reports :

Take the circulation at 3750.

To subscribers it costs, I believe, about £3 3s. or

£3 5s., but when sold in the trade the annual cost
is £3 15s. Taking £3 10s, as the average price, the

figures would stand thus . : 7 .£13,125 0 0
Deduct 20 per cent., which is the rate stewed on “ The
Law Journal” : ‘ : ‘ ‘ . 2,625 0 0

 

Balance 3 ; .£10,500 0 0

 
130 HISTORY OF “THE LAW REPORTS.”

The expenses of “The Law Journal” must be heavy. The two
volumes of 1863 contain about 2000 pages of quarto, equivalent to
about 125 double sheets of octavo. I have before me a printer’s
estimate, which gives the following amount as being the probable
expense of printing 4000 copies of a volume, in Long Primer type, in
all respects like the issue of “ The Law Journal” for 1863.

4000 copies at £16 10s., including all expenses of

printing and paper, but exclusive of stitching and
and wrappers = £16 10s. per sheet . . . £2,062 10 0

There are seventeen Reporters and three Editors, call the expenses

of these £2000. The account will stand thus :—

 

Net receipts (less trade discount) : : . £10,500 0 0
Deduct. ‘ ; : . ‘ : . 4,062 10 0
Balance 5 . £6,487 10 0

To this must be added the costs of offices, clerks, warehousing,
advertisements, travellers’ salaries and expenses, and perhaps some-
thing more than I have allowed in the above estimate for correc-
tions; call this the sum of £1437 10s. This will give as the profits
of “The Law Journal,” assuming my estimates to be correct, about
£5000 per annum. This no doubt would leave a valuable pro-
perty to the proprietors, but a slight examination will shew that this
amount would be quite insufficient to provide the staff of Reporters,
which is now generally admitted are required for properly reporting
the decisions of the various Courts, at salaries sufficient to ensure the
due discharge of the Reporters’ duties. Thus, twenty-five Reporters at
salaries of only £300 each a year, would absorb the whole profits of
the concern.

I venture therefore respectfully to submit, that I have made out the
proposition which I laid down at the outset, that it is to the existing
competition are mainly to be ascribed the defects in Law Reporting
of which the profession complain, and that such competition operates
either in increasing the costs of the Reports to the profession or in
awarding a mere pittance to the labourers in the vineyard, and in
some cases in both ways. Secondly, that the commercial success of
some of the existing publications is really no exception to the principle.
The inevitable inference from the above calculations seems to be that
there is no room for commercial profit in a properly-constituted
system of Law Reporting. I have trespassed so long on the attention
and time of the Committee that I will endeavour to be as concise as
possible in the suggestions I take the liberty to submit for their con-
sideration,—

1. I think there ought to be two series of Reports and two only, one
HISTORY OF “THE LAW REPORTS.” 131

somewhat after the style of “ The Weekly Reporter” or rather what it
professed to be, viz., an epitome of the cases published weekly. I
think the number of persons who now take in the double series
would, as they do now, readily pay the small addition which would
be required.

2. I think the other series should be more elaborate, although
published with reasonable promptness.

3. I think there ought to be appointed for each Court two Reporters
who should not (or at all events the senior) be permitted to practise.
Reporting is a most laborious occupation, requiring indeed some
knowledge of law and practice, and some power of analysis, but
eminently requiring industry, without which the highest attainments
are little worth. The Reporter should always remain in Court, and
his report should be a “photograph” of the case. But if he be
allowed to practise, the great prizes of the profession and the capti-
vating nature of professional business, as compared with the drudgery
of reporting, will prove too strong even for Spartan virtue. And were
he ever so conscientious on this point he could really at times exercise
little choice in the matter. The capricious and exacting demands of
the profession are such ihat the Reporter would be compelled to
postpone his duties as Reporter to his duties as counsel. The evils
consequent upon allowing Reporters to depend for income upon their
professional practice are patent at the present day.

4. I think the judgments should be reviewed and revised by the
respective Judges. I speak with diffidence on this point, because I
know that a different opinion prevails in the minds of men whose
opinions are entitled to the greatest weight, but if I may say so with-
out presumption, this notion appears to me to spring from a misap-
prehension of the object and purpose of a reported case. A reported
case is no evidence of anything as between the parties, it is simply a
record of what on a given state of facts isdecided. For every purpose,
did our system admit of prospective decisions, a reported case would
be just as valuable were the facts purely fictitious. It is said that
the reported decisions are valuable as operating as a check on the
Bench; but surely that object, if required at all, is far better accom-
plished by the independence of the Bar and of the newspaper press.
On the other hand, let me consider the effect of confining a Judge
rigidly to the very words he may have casually used in his judgment.
It does not perhaps express his meaning, but must nevertheless be
recorded as his enunciation of fact or law as the case may be.
Evidently this would render the reported decisions of little, or much
less value than they are at present. Moreover, some pruning must
be applied, or no series of Annual Reports could otherwise contain
the cases decided in the year, and, if so, who so proper to revise his
1382 HISTORY OF “THE LAW REPORTS.”

judgment as the learned Judge himself? I venture, therefore, to
suggest, though without going the length of Sir J. Leach, who
abridged all his judgments with his own hand, that the learned
Judges should have the option of revising their judgments.

5. I think copies of all the printed pleadings ought to be furnished
to the Reporters, and that they should have the privilege of obtaining,
gratis, copies of any order or decree that might be required. I have
spent days in the office making extracts.

6. I think if two adequately-paid Reporters were appointed for each
Court, it would be wholly unnecessary to make any invidious rule
excluding from citation in Court any other than the Reports sanctioned
by the Profession or the State. The unauthorized Reports have grown
up from the indolence and carelessness of the authorized Reporters,
and, in later times, from the inability of the authorized Reporters to
compete with the former in price, and when these causes are re-
moved the unauthorized Reports would pass away as they came into
being.

7. I should be disposed to think that if the subscription for the
Reports were fixed at six guineas per annum for the entire series, or
two guineas for the weekly series, if taken alone, a sufficient circula-
tion could be attained, at all events for the present to make a beginning.
Whether the Reports could be made wholly self-supporting is a
difficult question. The difficulty will arise when to the Superior
Courts of Law and Equity come to be added, in any arrangement to
be made, the Admiralty and other Courts in which the Reports
possess little circulation.

Apologising for the length to which this paper has run, and for the
hasty manner in which it has been written (for it was not until the
last moment that I determined on addressing the Committee), I have
the honour to remain your most obedient servant,

J. W. pe LoncugviLie GIFFARD.
To the Committee.

I ought to add, that in the above calculations I have taken the

circulation and value of all the various Reports from common report.

Messrs. Harrison, Dean, and Dicxrns.

2, New Square, Lincoln’s Inn,
16th February, 1864.
Sir,
In answer to your letter of the 20th ult., we, the undersigned,

beg leave to offer the following remarks.
Law Reporting might be conducted on the principle of exclusive
HISTORY OF « THE LAW REPORTS.” 133

monopoly, or, as at present, partial monopoly, or on that of free com-
petition.

The advantages of a system of free competition are supposed to be,
that Reports so compiled are thoroughly independent, and that their
success depends on their merits; but the freedom of the press and the
publicity attending all legal proceedings are a sufficient guarantee for
the independence of Reporters; and any increase of merits would be
more than counterbalanced by an increase in the existing confusion of
our case law.

By the partial monopoly now accorded to the existing regular
Reports a considerable sale is secured to them; and, owing thereto,
they are diffuse, ill-digested, tardy and irregular in their appearance,
and extremely expensive; and the interests of the Reporters, from
their profits depending on the quantity, not on the quality, of their
work, are in direct antagonism to those of the profession and the
public.

The plan of having a separate series of Reports for each branch
of the Court is an obstacle in the way of obtaining a well-digested
chronicle of judicial decisions.

But the great and increasing evil of the present system is the
number of Reports, and the enormous quantity of cases reported,
which causes delay in the proceedings and uncertainty in the de-
cisions of the Courts, and renders it extremely difficult for counsel to
advise with any certainty, thereby causing a more frequent resort to
litigation.

On the last grounds, some amendment of the existing system of Law
Reporting becomes a matter of national importance.

The objects to be aimed at are a better selection and arrangement,
and a considerable diminution in the number, of cases reported ; and
a more prompt and regular issue of the Reports, at a reduced price.

A system of exclusive monopoly appears to offer the only means of
attaining these objects.

The concurrence of the Judges in such a system should be at once
applied for; and, as it would be necessary to provide some compensa-
tion for existing rights, the sanction of Parliament would probably be
required.

It is suggested that the principle upon which the reporting in
Equity should be conducted, is, that the Reports in all the Courts
should be entrusted to one body of Reporters, under the guidance of
chiefs of experience and ability, and competent and expected to exercise
discrimination in the selection and arrangement of cases for reporting.

The following suggestions refer only to the Courts of Equity, but
may be readily adapted to other Courts : —

1. There should be a temporary and a permanent set of Reports.
134 HISTORY OF “THE LAW REPORTS.”

2. The temporary should give a short report or note of all cases
deserving notice, not later than the week after they are decided.

3. The permanent should give a due report of such cases from the
temporary as are of sufficient importance to become permanent,

4. The permanent to commence from the Ist of January, and issue
in three parts.

5. The first, comprising the cases decided before the 1st of Apyril,
to issue by May; the second, comprising those before the Long Vaca-
tion, by the 21st of October; and the third, comprising those before
the 1st of January, by February.

6. The two first to have each its temporary detachable tables and
index; the third full and permanent ones to all the three parts.

7. The extracts from decrees or orders worth giving, not entered
in time to print with the cases, might be given in a part issued after
entry.

8. The permanent Reports to be cited or quoted by their year, and
no other Reports to be allowed to be cited or quoted of any cases
decided during the periods they embrace.

9, The advantages of the temporary would be, to give notice at
once of all deserving notice, as quickly and as well as any present
Report, and to prepare for scrutiny what should be permanent.

10. Those of the permanent would be, not to embody as case law
anything not material, and to give what is given in well-considered
shape and order, better than can be done by any present Report.

11. The style of printing the present weekly Reports might be
adopted for the temporary.

12. The style of the regular Reports is very wasteful in space, and
so in bulk, and the marginal notes and references might be given in
the same way as is now done in the weekly.

13. Looking to the sittings of the Courts and the weekly Reports,
the expense of the temporary should not exceed 10s. or 12s. a year.

14. The expense of the permanent is not so easy to anticipate, but
it may be well supposed that it would not exceed four or five guineas
a year.

15. There should be six senior Reporters or Editors, and twelve
junior Reporters at least, for the six Courts, to be remunerated by
salaries.

16. They should be selected in the first instance from the present
Reporters, on account of skill and claim.

17. The present or another Committee to be authorized to make
the selection.

18. And to allow compensation to any not selected, or wishing to
retire, by annual or other payments.

19. The Editors to be a council, three to be a quorum; to decide
HISTORY OF “THE LAW REPORTS.” 135

by votes, if equal, the senior to have a casting vote; and to decide
what cases are to be reported and in what manner.

20, And to remove, or change or appoint any Reporters in future.

21. The Court should never be without a Reporter present, and in
general there should be two by way of check and aid.

22. In case of illness or unavoidable absence, any Reporter to appoint
his sufficient deputy, to be approved by the council.

23. Any two of the Judges in Equity in their discretion to remove
any Reporter.

24. The Judges will no doubt give their usual aid, and the pro-
fession will of course be much indebted to them for any further im-
primatur they may think fit to attach to the Reports.

25. The copyright to be vested by the Reporters on appointment in
trustees, the first to be named by the Committee, with provisions for
continuing their body.

26. The trustees to fix from time to time the price of the Reports,
and apply any profits, after all expenses, salaries, and charges paid,
for such purposes and in such manner as they think fit.

27. The council to appoint or change a law publisher or law pub-
lishers of the Reports.

28. The Committee to be authorized to allow compensation to any
present publisher or proprietor of Reports by annual or other payments.

29. The council to arrange with the publisher or publishers the
style and terms of printing the Reports.

30. And to act in all things as editors, paying over any balances
payable to them to the trustees.

31. The Reporters being allowed to practise, and where necessary,
to appoint deputies, and, so numerous as suggested, the salaries of the
senior should not exceed £300, nor those of the junior £200 a year.

32. The trustees might be authorized to make additions to the
salaries from any profits.

33. The system may be fairly expected to be more than self-sup-
porting, and the preliminary expenses, including compensations,
might be provided for by parliamentary grant, or from the Suitors’
Fund, or by the Inns of Court, or from private sources.

34. In the event of any difference, or of any matter not specified,
the Lord Chancellor to be requested to determine the same, or to
appoint for that purpose a Judge or Judges in Equity.

35. The Committee to communicate with the Lord Chancellor and
the other Judges in Equity.

36. And, if necessary, to bring the subject forward in Parliament.

W. H. Harrison.
R. Ryper Dean.
Wa. Pars Dickins.
136 HISTORY OF “THE LAW REPORTS.”

Leeds Law Society, 70, Albion Street,
25th February 1864.
Sir,

On the other side I send you the resolutions of the Leeds Law
Society, to which I venture to ask your attention, at the same time
thanking you for the courtesy in addressing myself and partners on
the subject. It would be well for the legislation of this country if
we pulled more together, and if more deference were paid to the
wishes and suggestions of the two branches of the profession.

I thought it better to have the discussion of the Law Society and
their opinion rather than give my own and my partners.

It has often struck me that if the two Houses of Parliament can
have their proceedings and evidence ready for reading the next morn-
ing, it is not too much to expect that the lawyers of all classes should
ask to have their Reports in a week or two. But we all see the diffi-
culties, and if you think it worth while to ask us anything further I
am sure we shall try to help-you.

If it be needful to apply to Parliament I would suggest that you
might get help from the Law Societies. Mr. Williamson, Secretary of
the Incorporated Law Society, and Mr. Philip Rickman, 35, Chancery
Lane, Secretary of the Metropolitan and Provincial Law Society, would
help you. Williamson, I know, has a list of them.

James T. Hopwood, Esq. I am, Sir,
Hon. Sec., Yours faithfully,
Benchers’ Reading Room, Epwin Eppisoy,
Lincoln’s Inn, London. Hon. Sec., &e.

Read letter from Mr. J. T. Hopwood, Hon. Sec. of the Committee
recently appointed by the Bar, to consider the present system of Law
Reporting with a view to its amendment, dated 20th of January, 1864.

Resolved—1. That the present system of reporting the judicial
decisions of the United Kingdom requires amendment.

2. That there ought to be such a system of reporting adopted as
shall be considered authentic, and recognised as such by all
the Judges of the Superior Courts of Law and Equity.

3. That the Judges of each Court ought to appoint Reporters.

4. That there ought to be one authorized Report only of the deci-
sions of each Court.

5. That it is desirable that such Reports should regularly appear,
and at intervals of not less than one month from the time of the
decision.

At the meeting on the 25th of February the Chairman reported
that, on Lord Chancellor Westbury’s invitation, he had had an
HISTORY OF “THE LAW REPORTS.” 137

interview with his Lordship, who expressed his hope that the
Committee would bring their labours to a conclusion as soon as
possible, as his own action in the House of Lords on the subject
of the Law Reporting system was stopped by their proceedings ;
and that his Lordship also wished to suggest to the Committee
whether it might not be advisable for them to leave the so-called
unauthorized Reports as they are at present, and to confine them-
selves to the preparation of a scheme for the thorough improve-
ment of the authorized Reports. His Lordship thought that such
a scheme, established under the direction of a reporting council,
would probably be self-supporting; but to guard against any
miscalculation, the heads and leaders of the profession, and
possibly the Inns of Court, might be asked to subscribe to a
guarantee fund.

The importance of this communication and the courtesy of the
Lord Chancellor in making it were fully appreciated and recognised
by the Committee, but it was felt by them that their own inde-
pendent inquiries must proceed much further before they could
be in a position to suggest any scheme for consideration among
themselves, or deal with his Lordship’s suggestions, although
their value was felt and acknowledged by the Committee, and
the Chairman was authorized to communicate with the Lord
Chancellor accordingly. But the Committee considered that in
the then inchoate state of their proceedings, and having regard
to the suspended state of the judgment of the individual members,
it would be premature to pass any resolution which would amount
to an expression of the opinion of the Committee upon any of
the specific suggestions so kindly made by his Lordship, several
of which, however, as the result shews, were in accordance with
the views ultimately adopted by the Committee, and afterwards
confirmed by the Bar, and which have been since successfully
carried into effect by the Incorporated Council of Law Reporting.
In order that sufficient time might be taken to afford an oppor-
tunity for the consideration by the Committee of the selected
papers, at a meeting of the Committee held on the 17th of March,
it was resolved that the Committee do adjourn until the 14th of
April next (thus allowing a month’s time for the purpose), and
that the Secretaries do communicate to the members of the
138 HISTORY OF “THE LAW REPORTS.”

Committee not present at that meeting the fact of such adjourn-
ment, with an intimation that the Committee think it would be
very convenient if any suggestions or schemes intended to be
submitted for consideration should be sent in to the Secretaries
some time before the next meeting for circulation among the
Members of the Committee.

Previously to the meeting appointed for the 14th of April
several schemes had been sent in, and at that meeting there was
a full attendance, and on the motion of Mr. Henry Matthews,
seconded by Mr. Montague HE. Smith, it was unanimously re-
solved :—

That the Secretaries be requested to write to the members
not present at that meeting, stating that a plan for the
discussion of the several schemes had been arranged, and
that it was thought very desirable that there should be a
full attendance of Members at the next meeting, and
requesting their presence, when the following questions
would be considered :—

I. Whether the Report of the Committee should be based
upon one and which of the following principles :—

(a.) The principle of better recording judgments and
proceedings by the Officers of the Court.

(b.) The principle of Official Reporting by persons
appointed and paid by the State.

(c.) The principle of Reports published under the con-
trol of a Council nominated by the Bar, the
Judges, and the Inns of Court, or by any other
body.

II. Whether the principle of exclusive citation shall be
recommended by the Committee.

Lastly, the expediency of holding for the future two Meet-
ings a week in order that the labours of the Com-
mittee may be brought to a close as speedily as
possible.

Ata meeting held on the 21st of April, 1864, at which there
was a full attendance: It was moved by Mr. Serjeant Pulling,
and seconded by Mr. Joshua Williams :—
HISTORY OF “THE LAW REPORTS.” 139

That the joint proposal of Mr. Serjeant Pulling, Mr. Joshua
Williams, and Mr. Westlake be adopted (1).

The motion was supported by these three gentlemen only: it
was negatived by the nine other members attending, namely,
Mr. Amphlett (the Chairman), myself, Mr. Druce, Mr. Lindley,
Mr. Quain, Mr. Dickinson, Mr. Wills, Mr. Matthews, and Mr.
Hawkins. It was therefore lost by a majority of three to one;
the majority consisting of five Members of the Equity Bar and
four Members of the Common Law Bar.

At the same meeting it was resolved unanimously that the
meetings for the future be held twice a week, viz., on Tuesdays
and Thursdays, at half-past 4 o’clock, and that notice thereof be
sent to the absent members.

At the next meeting, held on the 26th of April, there was
again a full attendance. The minutes of the last meeting were
read and confirmed. It was then moved by Mr. Montague Smith,
and seconded by Mr. Serjeant Pulling—

That the Committee recommend the principle of Official
Reporters, such Reporters to be appointed by the Lord
Chancellor, and to be paid by the State. The Reports to
be sold under the authority of Government—compensation
being afforded to existing interests.

With the consent of the mover and seconder the discussion on
this motion was postponed in order to give precedence to the
following, moved by Mr. Joshua Williams and seconded by
Mr. Westlake.

1. That the Report of this Committee do contain an expression of
its opinion that it would be desirable that all judgments of
the Superior Courts should as far as practicable be written.

2. That the Report of this Committee do contain an expression
of its opinion that it would be desirable that all judgments
of the Superior Courts not committed to writing before
delivery should be committed to writing under the autho-
rity of the Court as soon as possible after delivery.

3. That the Report of this Committee do contain an expression
of its opinion that it would be desirable that access to all

(1) Printed poste, p. 149.
I
140 HISTORY OF «THE LAW REPORTS.”

the judgments of the Superior Courts should be afforded

to every member of the profession as speedily and cheaply

as possible, and that it is not desirable that access to any

of those judgments should be afforded to any members of

the Bar in preference to others unless they be officially

charged with and responsible for the duty of affording

access to such judgments to the profession generally by

the publication thereof as speedily and cheaply as possible.

After discussion the first question was put to the vote separately

and the members present were equally divided, and thereupon

the Chairman gave the casting vote against the question. It was

therefore negatived. After some consideration, and influenced

probably by the expression of opinion by the members against

an official system under Government control in any form,

Mr. Joshua Williams withdrew the other questions ; and Mr. Smith

did not proceed with his postponed motion. Thereupon
Mr. Dickinson moved and I seconded a resolution :—

That in any system of Reports recommended by this Com-
mittee the Reports should be prepared by Reporters under
the supervision of competent Hditors, the Reporters and
Editors being appointed and removable by some superior
authority.

This motion was carried without any expressed dissent, and in
that sense unanimously.

It was further moved by Mr. Dickinson, and seconded by
Mr. Druce :—

That no case reported by Reporters under such supervision
and control should be quoted from any other Report; but
this not to interfere with the quotation from any other
Report of cases not already so reported.

After some discussion the further consideration of this motion
was adjourned.

At a meeting held on the 28th of April the minutes of the last
meeting were read and confirmed. It was moved by Mr. Dickinson,
and seconded by Mr. Lindley, and carried unanimously :—

That the proceeds to arise from the sale of the Reports should
be applied in payment of or making good any guarantee
which may be given in respect of the remuneration of the
HISTORY OF “THE LAW REPORTS.” 141

Editors and Reporters and other expenses of production,
management, and sale.

T also gave notice that at the next meeting I should move as
follows :—

1. That the appointment and removal of Editors and Reporters

be vested in a Council of Barristers.

2. That such Council consist of Members to be appointed as
follows: Two by each of the Inns of Court; two by the
Incorporated Law Society ; and, in case of assistance being
given by the Government, then two more to be appointed
by the Lord Chancellor.

3. That the appointment of the Reporters in each Court be
subject to the approval of the presiding Judge.

Mr. Dickinson’s motion, the consideration of which was post-
poned at the last meeting of the Committee to be discussed after
the aforegoing resolutions by me, was again postponed, and it
was ordered that the Secretaries be requested to communicate to
the absent members the resolutions already adopted and the
notice of motion given by me, and earnestly to request their
presence at the next meeting.

The notices were duly sent as requested, and the next meeting
was held on the 3rd of May and there was a full attendance,
including Sir Hugh Cairns, Mr. Selwyn, Mr. Quain, and Mr. Wills.
The minutes of the last meeting were read and confirmed. It
was moved by me and seconded by Mr. Dickinson and carried
without dissent :—

That the appointment and removal of the Editors and
Reporters be vested in a Council

It was then moved by me and seconded by Mr. Westlake and
carried in like manner :—

That such Council consist of Members to be appointed as
follows: Two by Lincoln’s Inn ; two by the Middle Temple;
two by the Inner Temple; one by Gray’s Inn; one by
Serjeants’ Inn; two by the Incorporated Law Society;
and, in case of assistance being given by the Government,
then two more to be appointed by the Lord Chancellor.

It was then moved by me and seconded by Mr. Serjeant

Pulling and carried :—
L 2
142 HISTORY OF “ THE LAW REPORTS.

That the appointment of the Reporters in each Court be
subject to the approval of the chief or presiding Judge.
Mr. Dickinson then brought on his adjourned motion, namely :
That no case reported by Reporters under such supervision
and control should be quoted from any other Reports;
but this not to interfere with the quotation from any other
Report of cases not already so reported.
This motion was negatived by a majority of one, and was
therefore lost.
I was requested and undertook to prepare a rough draft of a
scheme founded on the resolutions already passed for considera-
tion at the next meeting, which I did, and the following is a

copy.
LAW REPORTING.

The Committee having provisionally adopted the fullowing resolu-

tions :—

I. That in any system of Reports recommended by the Committee,
the Reports should be prepared by Reporters under the super-
vision of competent Editors, the Reporters and Editors being
appointed and removable by some superior authority.

II. That the proceeds to arise from the sale of the Reports should
be applied in payment or making good any guarantee which
may be given in respect of the remuneration of the Editors and
Reporters, and other expenses of production, management, and
sale.

II. That the appointment and removal of the Editors and Reporters
le vested in a Council. ;

IV. That such Council do consist of Members to be appointed as
follows :—two by Lincoln’s Inn, two by Middle Temple, two
by Inner Temple, one by Gray’s Inn, one by Serjeants’ Inn,
two by the Incorporated Law Society, and in case of assistance
being given by the Government, then two more to be appointed
by the Lord Chancellor.

VY. That the appointment of the Reporters in each Court be subject
to the approval of the chief or presiding Judge.

And the Committee having also provisionally negatived a resolu-

tion.

VI. That no case reported by Reporters under such supervision
and control should be quoted from any other Report, but this
not to interfere with the quotation from any other Report of
cases not already so reported.
HISTORY OF “THE LAW REPORTS.” 143

The following scheme based upon the principles of those resolutions
is proposed for the consideration of the Committee.

As competition is to be left entirely free, the first care must be not
to add to the existing evils by increasing the number of Reports, and
any plan to be successful must be such as would absorb some of the
existing series. The competition that has to be met is that of a
system in which good reporting is the means, and commercial profit
the end. The system proposed to be established, and which would
have to meet this competition, is one in which profit will be the means
only and good reporting the end.

The proposed system is also to be self-supporting, and must rely upon
its merits for success; it must also be moderate in cost,.and must,
therefore, rely upon an extensive circulation. For these purposes it
must entitle itself to the general confidence and support of all
‘branches of the profession—the Judges, the Bar, and the general
practitioners,—and must, therefore, be—

1. Comprehensive—that is, it must embrace the decisions of every
Court that can be properly referred to as authorities for prin-
ciple, or as guides for practice.

2. Complete—that is, it must be in the form which experience has
shown to be best calculated to meet the wants and conveniences
of the profession.

I propose, therefore, a double series for one subscription, but divisible

at the option of the subscriber.

The first, or WEEKLY Serigs, to be published once a week throughout
the legal year, and to comprise Reports or Notes of every case which
is likely to be of use to the practitioner ; and, as far as practicable, to
keep pace with the Courts, so that there be no unavoidable arrear or
delay in publication. f

This Series to be conducted by a numerous staff of Reporters, at
comparatively small salaries, acting under the supervision of two
Editors, at more liberal salaries.

The minimum salaries to be guaranteed, but to be increased out of
‘profits to a maximum to be settled by the Council. This Series to be
made up in half-yearly volumes and accompanied by a proper Index
and List of Cases.

The second, or Permanent Sertes, to be published quarterly, or at
earlier periods to be settled by the Council, so as to comprise, as far
as practicable, every decision up to the rising of the Courts for the
Long Vacation ; the object to be accomplished being that the Case-law
of the year should be properly reported and published within the year.
The cases to be published in this Series should be carefully selected by
the Editors and Reporters, upon the principle of rejecting all cases
which pass without proper argument and discussion, or which are
144 HISTORY OF “THE LAW REPORTS.”

repetitions of the principle of cases already reported, or which are
otherwise useless as precedents, and of including—
I. All cases which introduce or appear to introduce a new principle
or a new rule.

II. All cases which materially modify an existing principle or rule.

III. All cases which settle or materially tend to settle a question
upon which the law is doubtful.
IV. All cases which for any reason are peculiarly instructive.

In all cases where written judgments have not been delivered, the
judgment before publication should be submitted to the Judge for his
revision, and in the case of written judgments also whenever the Judge
desired it.

The Permanent Series should contain the decisions of each Court
separately, and be made up in yearly volumes, and each volume
accompanied by a proper Index and List of Cases. The October
number should also be accompanied by a Digest of the Cases reported
in the year. And also a List of the Cases reported in the Weekly
Series, and the reasons for their rejection.

The Reporters of the Permanent Series should be under the super-
vision of two Editors, and be sufficiently numerous to allow of the
attendance in Court from its sitting to its rising, of one Reporter in
each Court. No restriction should be placed upon the right to
practise of either Editors or Reporters, but it must be a fundamental
requirement, involving the professional honour of the Barrister, that
the duties whether of Editors or Reporters be faithfully and punctually
discharged. ‘The salaries of the Editors and Reporters should be upon
such a liberal scale as to secure the services of all such of the existing
authorized Reporters as would be able and willing to undertake the
duties, and to these the appointments should be first offered. As in
the case of the Weekly Series, a minimum amount of salary should be
guaranteed to the Editors and Reporters, to be increased out of profits
to a maximum to be fixed by the Council.

I estimate the amount of the minimum salaries, to be guaranteed to
the Editors and Reporters of the two Series, at £8000; the cost of
printing, sale, and distribution at £10,000; and the cost of manage-
ment at £2000, making a total of £20,000.

The duties of the Council would involve the arrangement of the
staff of Editors and Reporters of both Series:—Also the superin-
tendence and control of the financial and other business connected
with the printing, publication, and sale of the Reports. The Council
would also ascertain and settle the amount and proportion of profits
(subject to audit by an Auditor to be appointed by the Editors and
Reporters), also prepare and publish an Annual Financial Statement,
and a detailed Report of the results of the working of the system.
HISTORY OF “THE LAW REPORTS.” 145

This Report should embrace a notice of any anomalies, incongiuiiics,
inconveniences, or defects in the law that might be evidenced by the
decisions of the year, and to be made ancillary to legislative amend-
ment. For these purposes the Council would require the services of
a Secretary and two or more Clerks. The Secretary should be an able
and experienced man of business. They would also require convenient
Chambers in one of the Inns of Court, and the costs of these objects I
have estimated at £2000 per annum.

To meet these expenses I propose an Annual Subscription (payable
in advance at the commencement of the legal year) of Six Guineas for
both Series, and to include the Annual Digest, Financial Statement,
and Report. This subscription may be subdivided thus:—For the
Weekly Series only, Three Guineas. For the Permanent Series, Digest,
Financial Statement, and Report Five Guineas. I estimate a circulation
of Five Thousand.

Subscription lists to be opened immediately upon the approval of
the scheme by the Bar.

In aid of the Subscription List, I propose a guarantee for three years
equal to the amount of the minimum guaranteed salaries, This
guarantee I suggest should be partly by the Inns of Court, and partly
by private subscription. Lincoln’s Inn and the Inner Temple should
be asked to contribute each £1500. The Middle Temple £1000, and
and Gray’sInn £500. The remainder should be guaranteed by private
subscription. If the subscription list reached £3500, the guarantee
would be unnecessary.

I do not propose that any application be made to Government for
direct pecuniary assistance ; but I think the Government may, with
propriety, be requested to take a sufficient number of copies to supply
the requirements of the various functionaries connected with the
administration of justice at home, and in our Colonies and dependencies
abroad. If Government took for this purpose 1000 copies, I suggest
that the Lord Chancellor should have the nomination of two additional
members of the Council.

I propose also that the Editors and Reporters should be so far recog-
nized as officers of the Courts, and connected with the administration
of justice, that the Judges of the several Courts should be requested,
wherever such accommodation can be afforded, to appropriate con-
venient places to be occupied by the Reporters, apart from the Bar,
the Solicitors, and the Suitors, and also to allow the Editors and
Reporters of the Permanent Series to have access to all such papers
and documents as the Judges can control.

The Council should have power to make arrangements with the
proprietors of “ The Law Journal” for the acquisition of their goodwill
146 HISTORY OF “THE LAW REPORTS.”

in that publication. The terms to be made good out of surplus profits,
and be a first charge thereon after payment of expenses, and the
guaranteed salaries.

The Council to arrange with one or more publishers or printers to
undertake, under their superintendence, the printing, sale, and dis(ri-
bution of both Series of Reports upon the security of the Subscription
List, and Guarantee Fund so as to relieve the Council from all personal
liability in respect of all expenses, including guaranteed salaries and
cost of management.

The Copyright in the Reports to be the property of the Council, and
vested in Trustees of their nomination.

W. T. S. Danret.
Lincouy’s Inn,
5th May, 1864.

At a meeting held on the 5th of May I introduced my rough
draft scheme already printed, and the same was taken into con-
sideration. Meetings of the Committee were afterwards held on
the 10th, the 12th, the 19th, the 23rd, and 26th of May, and on
the 6th and the 9th of June, for the purpose of discussing and
settling the various clauses of the scheme to be submitted to the
Bar, and at the meeting of the 9th of June the scheme was
finally settled. I was then requested and undertook to prepare
a draft report of the scheme and the proceedings of the Com-
mittee to be submitted to the next meeting for approval, and to
be presented to the meeting of the Bar to be held for revision of
the Report. At the next meeting, held on the 14th of June, my
Report was considered, and after some amendments was approved,
and. directed to be presented accordingly. The following is a
copy :-~

REPORT OF THE COMMITTEE

Appointed at the Meeting of the Bar held in Lincoln’s Inn Hall, on
Wednesday, the 2nd day of December, 1863.

Tue Committee thus appointed were entrusted with the duty of pre-
paring a plan for the amendment of the present system of preparing,
editing, and publishing Reports of judicial decisions, and were requested
to report thereon to a future meeting of the Bar.

The Committee have, after much discussion and deliberation, pre-
HISTORY OF “THE LAW REPORTS.” 147

pared the scheme hereinafter set forth, and they recommend the same
for adoption.

The Committee abstain from discussing in this report the merits
of the scheme, but confine themselves to a general statement of their
proceedings, i

The first step taken by the Committee was to apply to the Benchers
of Lincoln’s Inn for the use of a convenient room in the New Hall
and Buildings for the purpose of their meetings. This application
was willingly acceded to by the Bench, and the Committee have
accordingly held their meetings in the Benchers’ reading-room at
Lincoln’s Inn.

At the first meeting of the Committee, held on the 22nd of Decem-
ber, 1863, they unanimously appointed Richard Paul Amphlett, Esq.,
Q.C., the permanent chairman of the Committee. They have since
held twenty-two meetings, and Mr. Amphlett has presided over every
one.

At their first meeting the Committee also accepted the services of
Mr. James Thomas Hopwood, of Lincoln’s Inn, as honorary secretary.
The duties of the secretary having increased and become onerous,
the Committee shortly afterwards accepted the services of Mr. William
Dundas Gardiner, of Lincoln’s Inn, and those two gentlemen have
ever since acted as joint secretaries, and have been unsparing of their
time and labour in rendering valuable services and assistance to the
Committee.

. Before entering upon the consideration of any scheme of amend-
ment to be suggested by any of its members, the Committee resolved
to issue a circular to the Profession inviting observations and sugges-
tions; such circular was as follows :—

The Committee are anxious, in order the better to discharge the duty
entrusted to them, to collect the opinion of the Profession upon the subject of
Law Reporting; and for that purpose the Committee are desirous of receiving
any observations which you, either alone or in conjunction with others, may be
so obliging as to make upon what, in your opinion, are the advantages or
disadvantages of the present system, and also any suggestions, either as the
principle or details of any amendment of the existing system which you may
think desirable.

This circular was sent to the Judges, and extensively distributed
among both branches of the Profession. In reply, the Committee
received numerous and valuable observations and suggestions. Al-
though these exhibited differences of opinion as to the proper mode
of amending the existing system of Law Reporting, they exhibited,
at the same time, a very general desire for amendment; and the Com-
mittee have been greatly assisted in the discharge of their duties by
the observations and suggestions thus received.
148 HISTORY OF “THE LAW REPORTS.”

The Committee also, before entering upon the consideration of any
plan of their own, appointed a sub-Committee (consisting of the
Honourable George Denman, Mr. Serjeant Pulling, Mr. Henry
Matthews, Mr. Quain, and Mr. Westlake) to inquire into the mode of
recording and reporting judicial decisions in the various European
States, and in the United States of America.

The sub-Committee undertook these duties, and reported as fol-
lows (1) :—

The sub-Committee thus appointed have received valuable communications
from a number of competent foreign jurists, and other gentlemen professionally
or officially connected with the chief tribunals of the countries embraced in the
inquiry, and thus conversant with the subject-matter of the reference.

The sub-Committee have by this means obtained information which they
recommend to the Committee as worthy of their attention.

To begin with the system adopted in France. Every judicial decision is
required to be in writing, and to be motzvé, i. e. to disclose on the face of it the
grounds and reasons on which it is founded; and when the signature of the
President of the Tribunal has been affixed to these solemn judgments, it is the
business of the Grefier to see them entered on the register of the Courts, and
only one version of them can therefore ever legally appear.

The Records of the Tribunals thus containing an authentic version of every
decision, the Legal Profession and the public have at all times access to the
register to ascertain what has from time to time been decided, and it is compe-
tent for any one to make from the register a selection of such decisions for pub-
lication. The collections of decisions by Sirey and Dalloz, and Ledru Rollin, have
been thus prepared. Though these works are deservedly held in great esteem, they
are not official publications, any more than any series of English Law Reports,

In Norway and Sweden the judgments of the ordinary tribunals are always
given in writing, and in every case entered on the protocols of the Courts; and
in the Supreme Courts of Appeal, when the votes of the Judges are given
separately, it is the business of the Registrar of the Court to enter on the
records of the Court, not only the final judgment or conclusion, but the grounds
and reasons of the decision of each Judge. Here, as in France, therefore the
records of the Court supply ample materials for the preparation of books of reports
or collections of decisions, and such publications are left wholly to free trade.

In Denmark, though it is competent for any one to take down, print and
publish reports of cases and decisions of which he has himself taken notes, the
only authentic version of judicial proceedings is the entry in the dombistocol,
under the hand of the Judge, containing not only the conclusion itself to which
the Court has arrived, but the facts and reasons and grounds of the decision ;
and from these, selections of cases which may serve for precedents are made by
the direction of the Courts, though it would seem that other selections made by
competent private publishers would be received with equal attention.

In Italy, all judicial decisions, whether civil or criminal, must be read aloud
in open court, with the grounds in fact or law set out at length; and authentic
minutes of the judicial opinions so pronounced are duly entered in the register of
the Court; and compilations of the principal decisions of the four Superior Courts

(1) See ante, p. 99.
HISTORY OF “THE LAW REPORTS.” 149

of Cassation at Milan, Florence, Naples, and Palermo are published by voluntary
editors, whose province it is to make a proper selection of cases for publication,
to give an analysis of them in the head and marginal notes, and to explain or
illustrate them in other annotations. These compilations only so far receive
the protection of the State that a certain number of copies are subscribed for
out of the public treasury. The compilation entitled “La Legge Romana” is
a journal of judicial and administrative proceedings for the Eingdani of Italy,
published at short intervals (the judicial three times a week), and containing
in an abridged form notes taken from the minutes in the registers of all the
important cases disposed of,

In the United States of America there is no law requiring either written
decisions or a record or register of the grounds and reasons of the decisions; but
the judgments are generally in writing, and in most of the States, and in the
Supreme Court of the United States, there are now official Reporters, remuner-
ated by salary as well as by a portion of the profits of the publications. These
Reporters are generally appointed by the State, and are always removable at the
discretion of the appointing power, but enjoy in the performance of their duties
the same freedom as the authors of our own Law Reports. In the Superior
Court of the city of New York, the Judges publish the reports of their own
decisions, choosing an editor from among themselves. As a rule, the official
reports omit the arguments of counsel, and give only a narrative of the facts
and the copy of the written judgments. The official publication rarely appears
for many months after the judgment is pronounced, and until that time publi-
cations called the “‘ Law Reporter” and “ Law Journal ” are referred to, but do
not profess to give more than the most important cases. No suggestion is made
that the Official Reporters are less efficient,or more dilatory than their prede-
cessors under the voluntary system, nor is it found that they are subject to any
improper influence in the discharge of their duties; and in the State of New
York the Official Reports are required by Law to be sold at a much smaller
price.

The Committee, with the information they bad now before them,
proceeded to consider proposals for amendment.

The first proposal discussed by the Committee was a joint proposal
by Mr. Serjeant Pulling, Mr. Joshua Williams, and Mr. Westlake, and
was as folluws (1) :—

The present system has arisen from the default of the proper records of their
own proceedings being kept by the Courts. The privilege which the Bar has of
Reporting comes to this, that any barrister may inform the Court of that which
the Court might much better know from its own records. No remedy appears
to us sufficient which does not strike at the root of the evil. It would be
desirable that all judgments should be written; but this may be thought im-
practicable. We therefore propose as follows :—

It should be the duty of the Registrar, in all cases in which judicial opinions
are pronounced, to record the names of the parties, and of their counsel and
attorneys or solicitors, the authorities cited, the judicial opinion or opinions
delivered, and the formal judgment, order or decree; also the substance of the

(1) See ante, p. 139.
150 HISTORY OF “THE LAW REPORTS.”

pleadings and the case, and the points relied upon by counsel, wherever a mere
transcript of the judicial opinions actually delivered did not render any other
summary of the case, pleading and points, unnecessary.

Each Registrar should be assisted by one or more shorthand-writers, whose
duty it should be to take down all remarks of the Judges, especially their
judgments, and any remarks by counsel which may be necessary to render them
intelligible.

The shorthand-writers should be allowed to furnish notes to applicants for
their own profit.

The shorthand-writer’s notes should be written out as soon as possible, and
furnished to the Registrar.

It should be the duty of the Registrar from these notes and his own, with
the assistance of the Judges, the other officers of the Court, and the counsel and
attorneys or solicitors employed, to prepare such record of the case as aforesaid.

The record should be printed as soon as possible by the Queen’s printers, on
paper of a given shape, each cause being on separate paper, and the transactions
of each day being printed within a week at furthest.

The records so printed should be published and sold at a low price, with
liberty to any person to reprint them.

The record so made should be amended by the Court on sufficient evidence of
its inaccuracy, and should be evidence in the same manner as the records of the
Courts now are.

All printed pleadings and evidence should be on paper of the same size and
shape with that of the records, so that the printed documents relating to each
cause might be bound up, as those relating to Privy Council causes now are in
Lincoln’s Inn library; and copies of all such printed documents should be
furnished to the libraries of the Inns of Court and the Incorporated Law
Society.

If a Ministry of Justice should be established, which we think very desirable,
it might be charged with the preparation of an Annual or Semi-annual Digest,
and with supplying marginal notes to the records of cases, but so that such
records might also be bought without such notes by those who might think it
important to get them sooner.

After discussion this proposal was negatived.
Mr. Montague E. Smith, Q.C., moved a resolution as follows :—

That the Committee recommend the principle of Official Reporters, such
Reporters to be appointed by the Lord Chancellor, and to be paid by the State;
the Reports to be sold under the authority of Government, compensation being
afforded to existing interests.

The discussion upon this resolution was, with the consent of Mr.
Smith, postponed until it should be seen whether any scheme of
amendment would be sanctioned by the Committee which should not
be based upon Government patronage and control.

Several proposals in various forms, but each founded upon the
principle of establishing a system of Reporting under the regulation
and control of the Bar, were next laid before the Committee; these
HISTORY OF “THE LAW REPORTS.” 151

formed the basis of the scheme adopted. Mr. Smith’s motion was
therefore not pressed.

Mr. Dickinson moved a resolution embodying a principle applicable
to any set of Reports to be so established as follows :—

That no case reported by Reporters under such supervision and control should
be quoted from any other Report, but this not to interfere with the quotation
from any other Report of cases not already so reported.

This resolution was negatived ; the Committee considering that such
a restriction, although in the opinion of several of their members very
desirable, should not form part of the scheme.

The following is the scheme respectfully submitted and recom-
mended by the Committee for adoption by the Bar :—

ScHeme oF ReporTING RECOMMENDED BY THE CoMMITTEE,
Constitution of Council.

1. The Reports recommended by this Committee shall be placed.
under the general management and control of 4 Council composed of
Members to be appointed as follows: two by Lincoln’s Inn; two by
the Middle Temple; two by the Inner Temple; one by Gray’s Inn;
one by Serjeants’ Inn; and two by the Incorporated Law Society ;
and in the event hereinafter mentioned, two mere to be appuinted by
the Lord Chancellor. The Council shall include also the Attorney-
and Solicitor-General and the Queen’s Advocate for the time being as
ex-officio members.

2. One of the members appointed by Lincoln’s Inn, the Middle
‘emple, the Inner Temple, and the Incorporated Law Society respec-
tively, and one of the members (if any) appointed by the Lord Chan-
cellor, shall retire at the end of every two years, and the members
appointed by Gray’s Inn and Serjeants’ Inn respectively shall each
retire at the end of fuur years from his appointment, except that, for
the purpose of equalizing the number retiring periodically, the first
member appointed by Gray’s Inn shall retire at the end-of two years.
All members retiring shall be eligible for re-appointment.

3. Any occasional vacancy in the Council by death, resignation, or
otherwise, may be filled up by a new appointment, and the member
so appointed shall retire at the time when the member occasioning
the vacancy would in ordinary course have retired.

4. It is desirable that the Council be incorporated by Act of Par-
liament or Charter. The Council shall have the assistance of a paid
secretary, and the Inns of Court shall be requested to guarantee the
payment of such secretary’s salary, and the office and other expenses
152 HISTORY OF “THE LAW REPORTS.”

of the Council (not exceeding together £500 per annum), in the pro-
portions following, viz. :—

Lincoln’s Inn - Two-sevenths. Middle Temple - Two-sevenths,
Inner Temple - Two-sevenths. Gray’s Inn - One-seventh.

Nature of Reports.

5. The Reports shall be prepared by Reporters under the supervision
of Editors, and the cases to be reported shall be carefully selected
upon the principle of rejecting all cases useless as precedents, and the
copyright shall be vested in the Council, or in trustees to be named
by them.

6. The Reports shall be divided into three Series, viz. :—

1. Appellate, being the House of Lords and Privy Council
Cases ;
2. Equity, including Bankruptcy and Lunacy cases;
3. Common Law, including Probate, Matrimonial, Admiralty,
and Ecclesiastical cases ;
with such sub-divisions (if any) of each series as the Council may
think desirable.

7. The Common Law and Equity Reports shall be published in
monthly parts respectively, and the Appellate Reports as often as
shall be found convenient. The November parts shall comprise, as
far as practicable, every decision not before reported up to the rising
of the Courts for the Long Vacation.

8. The Council shall have power, if they should find it desirable, to
establish in connection with the permanent Reports above mentioned
a weekly set of Reports.

Staff of Editors and Reporters.

9. The staff of Editors and Reporters and their salaries shall be
as follows :—
Total.
Two Editors .. “ re wy es at £600 each £1,200
Reporters—
2 House of Lords
1 Privy Council
3 Lord Chancellor and Lords Justices (in-
cluding Bankruptcy and Lunacy)
2 Queen’s Bench (including appeals there-
— from to Exchequer Chamber)
8. cs * . a at £500 each £4,000
HISTORY OF “THE LAW REPORTS.” 153

 

 

° Rolls Total.
2 Vice-Chancellor Kindersley
2 Vice-Chancellor Stuart
2 Vice-Chancellor Wood
2 Common Pleas (including appeals there-

from to Exchequer Chamber)
2 Exchequer do. do.

12 ‘a x ie - Ais .. at £400 each £4,800
1 Crown Cases Reserved... ae s rr % 100
1 Admiralty and Ecclesiastical .. as sis “ 100
2 Probate and Matrimonial ne « at £250 each 500

2)£10,700
First moiety, see Rule 10 .. a a . £5,350

 

10. One moiety of these salaries (hereinafter referred to as the
“first moiety”) shall be paid in all events by equal quarterly pay-
ments to the Editors and Reporters, and the other, or “ second moiety,”
at the end of each year out of the profits of that year, so far as the
same may be sufficient for the purpose; provided that the salaries or
emoluments received by the House of Lords’ Reporters from the House
shall be brought into account and taken in part payment of the salaries
hereinbefore provided for them.

11. The Editors and Reporters shall be Barristers, and shall be
appointed and removable by the Council; but the appointment of
the Reporters in each Court shall be subject to the approval of the
chief or presiding Judge.

12. The existing authorized Reporters shall have the offer of the
first appointments in their respective Courts, and in other appoint-
ments of Reporters a preference may, if the Council think fit, be given
to the Reporters of any publication which may be discontinued in
consequence of the issue of the Reports recommended by the Com-
mittee.

13. Where there is at present a single authorized Reporter in any
Court to which two Reporters are to be appointed under this scheme,
the Council may, on his accepting the appointment as one of such
Reporters assign to him a proportion greater than one-half, but not
exceeding three-fourths, of the aggregate salaries allotted to that
Court; and the claim of any authorized Reporter, who is now entitled
to a greater share of the emoluments of reporting than a colleague in
the same Court, to have an unequal division of the salaries allotted to
the same Court, shall in like manner be equitably adjusted by the
154 HISTORY OF “THE LAW REPORTS.”

Council. Provided that in neither of the cases contemplated by this
clause shall a Reporter be entitled to receive in any year more than the
average annual amount of his receipts for reporting for the three years
next preceding his appointment as a Reporter under this scheme, until
his colleague, or all his colleagues if more than one, shall have been
put upon an equality with him. ,

14. Where there are now two authorized Reporters in any Court
to which one only is proposed to be appointed under this scheme, and
both wish to be continued, the Council may, if it thinks fit, appoint
them both, and direct the salary allotted to the Reporter of that
Court to be divided between them.

15. Subject to-_Rule 11, the Editors and Reporters shall be appointed
for a term of five years, and they shall be eligible for reappoint-
ment; but this limit of time shall not extend to such of the present
authorized Reporters as may accept appointments as Reporters under
this scheme. : ,

16. The particular duties of the Editors and Reporters shall be
prescribed by the Council, who shall have full power to ‘increase or
diminish the numbers engaged, vary their duties, and adjust or alter
their salaries, regard being had to existing interests for the time
being, under Rule 9. /

17. No restriction shall be placed upon the right of either Editors
or Reporters to practise; but it must be a fundamental requirement
that the duties, whether of Editors or Reporters, be faithfully and
puuctually discharged.

18. The Judges of the several Courts shall be requested to appro-
priate convenient places to be occupied by the Reporters, to allow the
Reporters access to all such papers as they can control and their
written judgments, and to revise the reports of their unwritten judg-
ments before publication.

19. The Bar and the solicitors shall be requested to afford the
Editors and Reporters all the assistance in their power for the better
discharge of ther duties, by communicating information and per-
mitting the use of briefs and papers and shorthand-writers’ notes.

Financial Arrangements.

20. The Profession shall be invited to subscribe to the Reports, at
the following scale of prices, payable in advance, viz. :—

Per Annum.
For the entire set - £ 5 0
For the Common Law Series : . 8 8 0
For the Equity Series 4 ‘ . 38 8 0
For the Appellate Series. ‘ « 2 20:
HISTORY OF “THE LAW REPORTS.” 155

and for any sub-divisions which the Council may think fit to make,
at such prices as the Council shall determine.

21. Such invitations shall contain an announcement that it is
considered essential for carrying out the scheme that the aggregate
amount of subscriptions, inclusive of any advance from the Con-
solidated or Suitors’ Fund, in respect of the first moiety of the
salaries or otherwise, shall reach £10,000 at the least.

22. If such subscriptions, inclusive as aforesaid, shall fall short of
£10,000, the subscription list may be cancelled and fresh invitations
issued for subscriptions at increased prices, not exceeding double the
above scale.

23. The prices to non-subscribers shall be one-third more than
those charged to subscribers.

24, The Government shall be supplied with as many copies of
the Reports as they may require for public purposes at subscribers’
prices.

25, Authority shall, if possible, be obtained for the payment out of
the Consolidated or the Suitors’ Fund of the first moiety of the
salaries of the Editors and Reporters, the same to be repaid out of the
price of the copies supplied to the Government, and so far as that
may be insufficient out of the proceeds of the sale of the Reports
as hereinafter mentioned. In case such authority is obtained the
Lord Chancellor shall have the appointment of two additional mem-
bers of the Council as mentioned in Rule 1.

26. The Council shall have power to make such arrangements as
will lead to the discontinuance of any set of existing Reports and for
discharging the consideration for the same by payments, during a
limited period, out of profits, but not in priority to the payments
directed to be made by articles 1, 2, 3 of Rule 29.

27. The Council shall contract with one or more publishers or
printers, who shall undertake all the trouble and risk of the publica-
tion, sale, and distribution of the reports, receive the subscriptions,
pay all expenses, and account to the Council quarterly ; such accounts
to be examined and audited by the Council with such assistance as
they may require.

28. In case payment of the first moiety of the salaries shall not be
obtained out of the Consolidated or Suitors’ Fund, it shall be made a
term of the contract with the publishers or printers that they shall
pay such moiety by equal quarterly payments, and be reimbursed
the same out of the proceeds of the sale of Reports, as hereinafter
mentioned.

29. The proceeds of the sale of Reports and other profits therefrom
shall be applied as follows :

1. In defraying the expenses of the publication, sale, and distribu-

M
156 HISTORY OF «THE LAW REPORTS.”

tion, including the commission or other remuneration agreed to
be given to the publishers or printers, and the first moiety of
the salaries, if paid by them:

2. In payment or (if previously paid under the guarantee) in
reimbursement to the Inns of Court of the Secretary’s salary
and other expenses of the Council:

3. In making good to the Consolidated or Suitors’ Fund (if paid
thereout) so much of the first moiety of the salaries of the
Editors and Reporters as shall not be covered by the price of
the copies of reports supplied to the Goverument :

4, In payment of the second moiety of the salaries of the Editors
and Reporters ; and of the consideration, if any, agreed to be
given for the discontinuance of any existing Reports under
Rule 26, in such order and priority as the Council shall have
arranged :

Lastly. In augmenting the salaries of the Editors and Reporters, or
such of them (if any) as the Council shall consider proper to
be augmented, or in constituting a reserve fund to meet future
contingencies, or in such other way as the Council in their dis-
cretion shall consider best calculated to improve the system of
reporting.

30. The Council shall have power, so far as they may not be fettered
by any subsisting engagement, to alter the price uf the Reports as
they think desirable, whether the several objects to which the pro-
ceeds of the sales are hereinbefore directed to be applied or any of
them have or have not been fulfilled.

31. The accounts shall be audited yearly by an auditor to be
appointed by the Editors and Reporters, and, subject to such audit, the
Council shall ascertain and settle the amount payable to the Editors
and Reporters in respect of their salaries.

32. The Council shall prepare and publish annually a financial
statement and report of the results of the working of the system.

14th June, 1864.

R. Paut Amputerr (Chairman). Guorce Druce.

Rosr. PHmumMore. G. W. HastTines.
FirzRoy Kerry. N. LInviey.

W. T.S. Danie. J. R. Quaiy,

C. JASPER SELWYN, ALFRED WILLS.

H. M. Cairns. Joun WESTLAKE.
ALEXR. PULLING. F. Vauewan Hawsins.

JAMES DICKINSON,

Immediately upon the scheme being signed the Secretaries
HISTORY OF “THE LAW REPORTS.” 157

communicated with the Attorney-General as to fixing a day for the
meeting of the Bar to receive the scheme. As the assizes were
about shortly to commence it was considered desirable that the
meeting should be held before the Bar left London for the
circuit, and with such object the Attorney-General fixed the
Ist of July for the meeting, and appointed it to be held in
Lincoln’s Inn Hall at half-past 4. Due notice was given of the
meeting, and copies of the Report and Scheme were distributed
by the Secretaries. The meeting was duly held and numerously
attended, and the following is a transcript of the shorthand
writer’s notes of the proceedings :—

Lincoty’s Inn Hatu: Friday, July 1, 1864.

REPORT OF PROCEEDINGS AT A MEETING OF THE BAR

Lo take into consideration the Scheme of Reporting recommended by the
Committee appointed on the 2nd of December, 1863.

The Atrorney-GEneraL (Sir Roundell Palmer) in the Chair.
[Transcript of Mr. Toncur’s Shorthand Notes.]

The Cuarrazman :—Gentlemen, you are all aware of the occasion of
our meeting to-day. On the 2nd of December last, a Committee was
appointed to consider the question whether any plan could be pyro-
posed for the amendment of the present system of preparing, editing,
and publishing Law Reports. The Committee which was then
nominated, have since very assiduously and diligently endeavoured
to discharge that duty which you confided to them; and, whatever
opinion anyone may form of the plan they recommend, or any other
point connected with the subject, I am sure there will be but one
opinion of our obligation to them for the pains and trouble they
have bestowed in its consideration. [Cheers.] They have now
presented a Report, which will be submitted to you at this meeting
for your consideration. It is not my intention to say one word on
the subject of that Report, or in any way whatever to attempt to
influence the judgment of anyone present about it. It will be
entirely for you to form your own opinions on that subject. I may,
however, take this opportunity of saying that I should myself per-
sonally have been glad, especially as I know it has been the wish of
some gentlemen interested in the subject, if this meeting could con-
veniently have been held at a rather more remote period of time,

and after a longer opportunity had been afforded to gentlemen to
mM 2
158 HISTORY OF “THE LAW REPORTS.”

become acquainted with the nature of the Report made. [Hear/
hear!) But, taking all things into consideration, there was no option
but to hold the meeting now, or (which I think would not have been
desirable) to let it stand over for an indefinite time after the Long
Vacation. You are all aware that the Circuits are very soon to
begin: and, when that happened, we should have been deprived
of the presence at this meeting of gentlemen connected with the
Common Law Bar, who are in the habit of going the Circuits; and
under those circumstances it would have been impossible for any
such meeting to have been held. In that state of circumstances, the
Committee having made a Report, and having nothing further to do,
it seemed right that the Bar should be summoned, and the Report
submitted to their consideration ; and, I need not say, I believe it
will receive from everyone present a fair and candid consideration,
[Hear ! hear !] One word more. It would, of course, be quite possible
to extend the debate and discussion on such a subject over large
limits of time; but we all know that it is not a possible thing con-
sistently with the hour at which we are compelled, by the circum-
stances of the Profession, to assemble, and I hope that all gentlemen
who may think it right to address the meeting will kindly bear that
in mind, that we have but a limited time, and the observations
which can be compressed into a moderate compass will lose none of
their force and be not the less acceptable on that account. [Cheers.]
I believe a resolution will be submitted to you, and moved by
Mr. Amphlett.

Mr. Ampuuert :—Mr. Attorney-General and Gentlemen, I have now
the honour formally to present for your consideration the Report
of the Committee of which the Chairman has spoken; and, as I
intend to conclude by a motion for its adoption, I trust I may be
allowed to make a few observations (and in doing so I shall attend to
the suggestion of the Chairman to be as brief as possible) in order to
explain the grounds on which I think the scheme recommended in
the Report is worthy of your approval. The Report has been so
extensively circulated during the last week among the Profession
that it cannot be necessary for me to read it, and I think I shall best
consult your convenience, and save much valuable time, by assuming
that all present who are interested in the question have made them-
selves acquainted with its contents.

Gentlemen, it will be in your recollection that there were twenty-
two members appointed on the Committee. Of those, you will find
fifieen gentlemen’s names appended to the Report; the remaining
seven, whose names do not appear on the face of the Report, I will
just read to you. They are, The Solicitor-General, Mr. Montague
Smith, Mr. Denman, Mr. Mellish, Mr. Joshua Williams, Mr. Sweet,
HISTORY OF “THE LAW REPORTS.” 159

and Mr. Matthews. The Solicitor-General has been prevented, by
the pressure of official duties, from attending any of the meetings of
ane Committee, or taking any part in their proceedings. The re-
maining six gentlemen have declined, for various reasons, some of
which I daresay you will hear from themselves, to sign the Report.
I do not think I am improperly forestalling what they will say when
I observe that their reasons are not the same; and, with regard to
many of them, their objection is rather with regard to what the
Report does not contain than what it does contain.

The Committee having been appointed to prepare a scheme for
amending the present system of reporting, it may not be unim-
portant to observe that the appointment of the Committee at the last
meeting of the Bar was preceded by another resolution, affirming
the expediency of such amendment. It was, therefore, no part of
the province of the Committee to re-open the question as to the
expediency of amendment. That was decided by the Bar itself; but,
if anything were wanted to confirm it, it would be confirmed very
strongly by the communications subsequently received by the Com-
mittee, which afford abundant evidence that there is a great and
wide-spread dissatisfaction with the present system of reporting, not
only among the Bar, but among other branches of the Profession.
Nor, Gentlemen, was there much difficulty on the part of the Com-
mittee in coming to a conclusion as to what the evils were that were
complained of. They were palpable, and there appeared to be a
very remarkable unanimity as to their character. I think, when I
am addressing a meeting of members of the Bar, and most of them
practising members of the Bar, it would be superfluous in me to
dwell on the evils of which we are all aware. I need only mention
the multiplicity of Reports, the number and length of cases reported,
and, in many instances, the great delay and irregularity with which
the Reports are issued. Still less need I dilate to fellow-sufferers,
whom I am addressing, on the great and unnecessary expense which
is attendant on the present system. But the evils being admitted,
the first question, and a question of considerable difficulty, which the
Committee had to consider, and which we are about to consider now,
is this, whether those evils are, in their nature, such as can be
remedied by any new proposal? Now I believe I am right in saying
that the Committee were very generally of opinion (not only those
who have signed the Report, but many of those who did not sign the
Report) that those evils can be remedied, and that the true remedy is
to be found in establishing an improved and well-organised system of
authorized Reports. It must be known to you all that the present
system of authorized Reports can hardly be considered to have any
organisation at all. The Reporters in each Court, without any concert
160 HISTORY OF “THE LAW REPORTS.”

with the Reporters of other Courts, without any general control or
supervision from any quarter, are in the habit of publishing separate
reports of their particular Courts, The result of that, as it appears
to the Committee, has been a very great and unnecessary expense
thrown upon the Profession ; and, more than that, when you find so
many Reporters are engaged in those authorized Reports without any
connection or co-operation between themselves, it must frequently
happen that some of those Reporters are in arrear with their cases, so
that, if a gentleman is provided with the whole of the authorized
Reports, as they are called (I use a term familiar to you all, and you
know what I mean), he has still an insufficient supply of the Reports,
because some of them may be in arrear; and the result has been that
gentlemen in practice have been obliged to have recourse to Reports
which are brought out and conducted on a different principle. I
believe this imperfection in the authorized Reports has been the
prolific parent of many of the objections to the present system of
reporting. If you improve the authorized Reports—if you insist on
their being brought out promptly and at regular intervals—if you
insist on their being connected with each other—if you insist on
their being brought out at a moderate expense, I believe that the
multiplicity of Reports, which is one of the great evils complained of,
will eventually disappear, and that many of the other evils of which
we complain will be, if not remedied, at any rate greatly modified.
Well, Gentlemen, that being the view which the Committee very
generally took, the next question which they had to consider was,
what amended system of the authorized Reports would be the best?
Would it be best, as my learned friend Mr. Montague Smith pro-
poses, to have a system of reporting by official Reporters appointed
by the Lord Chancellor and paid by the State; or, would it be better
to have such a system as is proposed by the Committee, to be under
the control and management of the Profession itself? I do not
think we have much choice besides those two. There have been
other proposals slightly varying in character from them; but I think,
from the general feeling of the Committee, and from what I collect
of the general feeling of the Profession, the choice of amending the
present system of authorized Reports will lie between those two. I
confess, if I thought both those schemes were equally practicable,
I should not have any st¥ong predilection for one over the other. I
think that both would answer the purpose; I think both would
relieve us from a great many of the evils of which we complain.
No doubt there are many and grave objections to have the Reports
under any sort of Governmental control. [Hear ! hear!| I remember
many of those objections were forcibly stated by my friend Mr. Den-
man on the last occasion, and I am not insensible to their force. On
HISTORY OF «THE LAW REPORTS.” 161

ihe other hand, there is what I may call ‘“‘a charming simplicity ”
about the financial arrangements, which, fresh as I am from the
financial difficulties of the Committec’s scheme, is most highly
attractive. I have not, however, to make a choice between those
two systems, because I am perfectly satisfied there is one fatal objec-
tion to Mr. Montague Smith’s scheme; and that is, that it is as
certain as anything can be certain, that we should never obtain from
the Government the necessary funds to support an official system,
more particularly if it is to be attended, as Mr. Smith proposes (and
which I think would be necessary as an official system), with com-
pensation to existing interests. Iam, therefore, afraid that, if this
meeting were to pass a resolution in favour of an official system of
reporting, the result would be it would become a dead letter, and it
would, I fear, operate for a considerable time as a bar to any other
amendment of the existing system. Under those circumstances,
T should be very glad indeed if that plan of official reporting is not
pressed in competition with the plan of the Committee. If it is,
I shall feel myself obliged to vote against it.

If, therefore you should be of the opinion which I have ventured to
state,— that the proper remedy for existing evils is to have an amended
system of authorized Reports, under the control and management of the
Profession itself, I really do not see how you could have that principle
carried cut in any better way than it is proposed to be carried ont by
this scheme; for what we propose to do is this: we propose that,
instead of the present disorganised and irregular system of authorized
Reports, they should be, as it were, consolidated together by the
Reporters acting under Editors, so that you may have the Reports
brought out as a whole, as one, and not subject to all that irregularity
which at present exists. And, if you agree with the views of the
Committee that this should be under the control and management of
the Profession itself, I do not see, inasmuch as the Profession can only
act by some organ or other, how you could have a better representative
for the Profession than a Council like that which is proposed in this
scheme. I remember so well what the Attorney-General has warned
us against that I am anxious to say as little as possible upon the
subject ; and with regard to the details of this scheme, if you agree
with the principle of the scheme, I think it would be rather out of
place to discuss, at this meeting, the mode in which that Council, for
instance, should be composed, or the other details of the scheme. If
you agree in principle with what the Committee recommend, I think
you must, to a certain extent, take the details on trust. All I can say
is that, although I do not think it right, on the present occasion, to
discuss at length those details, I can assure you those details have
162 HISTORY OF “THE LAW REPORTS.”

been most carefully and anxiously considered by the Committee,
(Hear! hear!) Another reason why I think it unnecessary to dwell
much on the details of the scheme is that you will find ample power is
given to the proposed Council to revise and to alter the details of the
scheme in such way as convenience may require. For instance, one
gentleman may think we propose to appoint too many, another may —
think we propose to appoint too few, Reporters, and so forth. All that
can be remedied by the powers proposed to be vested in the Council.
I do not, therefore, propose to travel through the details of the
scheme.

There are, however, Gentlemen, two points, and two points only, in
the scheme on which I should like to say a few words. Those points
are, the proposed salaries of the Editors and Reporters, and the proposed
price at which the new Reports will be sold. Now, with regard to
the salaries, I do not think the Committee had any point so difficult
and so delicate to determine as the amount they should propose for
those salaries. Some, perhaps, will think we have proposed too small
salaries. What I would say on that is this—if the plan succeeds,
provision is made for augmenting the salaries. Others may think we
give too much—to those I will say that it has been anxiously con-
sidered, and one element of consideration in the amount of the salaries
was that we were anxious, if we could, to secure the services of the
existing staff of authorized Reporters, and we think, when it comes to
be canvassed and examined into, we have proposed such salaries as
will induce those gentlemen to come into the scheme, and we feared
that, if we put the salaries lower, we should risk that important result.
The next thing as to salaries was, that we felt it was due to the Editors
and Reporters that they should not be left to the chances of trade
with regard to the whole of their salaries; therefore we came to the
conclusion it would be necessary that at least a moiety of those salaries
should be paid to them at all events. Here arose, as you will imme-
diately see, a considerable difficulty as to the best way in which a
moiety of those salaries should be secured. The Committee were of
opinion that, if it could be managed, it would probably be more
agreeable to the Reporters, and rather improve the prestige of their
position, if the Government, out of the Consolidated Fund or the
Suitors’ Fund, would consent to an advance of that moiety of the
salaries; and when I consider that if this scheme succeeds (and it will
not be put into operation unless there is a fair chance of success) there
is every probability, almost a certainty, that the Fund which advanced
those sums would be repaid, I do not despair of being able to persuade
the Government to consent to a moiety of the salaries being so paid.
But, Gentlemen, you must observe, and this is very important to bear
HISTORY OF “ THE LAW REPORTS.” 163

in mind, that our success does not depend on the Government assent-
ing to that. Ifthe Government would assent to it, you would agree
it is right and proper that the Lord Chancellor should appoint two
additional members of the Council; but if the Government will not
consent to give us, what I will not call assistance, but would rather
call accommodation, for it will be repaid, we propose that the moiety
of the salaries should be secured in this way: that we should have a
contract with the publishers who publish these Reports, that, at all
events, they should pay one moiety of the salaries. I believe it has
been argued that it would be impossible, upon those terms, to find a
publisher who would undertake so great a risk as to pay a moiety of
the salaries, amounting to £5000 in the first instance; but I think
that is entirely a fallacy, because, by the 21st rule of the scheme, we
propose that invitations should be issued to the Profession, and that
the new system should not be commenced without having an actual
subscription list to the extent of £10,000; and I am satisfied, from
inquiries which the Committee and myself have made, that, if we go
to a publisher with a subscription list from professional men of that
large amount, he would have no hesitation whatever in undertaking
the responsibility of paying that moiety of the salaries. He will
look at it in this way: if you go, before the plan is started, with a
subscription list of £10,000, every person acquainted with business
will tell you that will represent a much larger sum at the end of the
year. £10,000, in point of fact, according to the best calculation we
can make, would pay all the expense of the first publication and the
first moiety of the salaries. But, more than that, if it succeed the
first year, of which I entertain no doubt, you would have the sub-
scription list, at the end of a year or two, more than double. There-
fore, although the difficulties in Mr. Montague Smith’s financial scheme
would not be so great as in ours, yet I think we should be perfectly
able to carry it out.

The only other point I shall trouble you upon is the price of the
Reports. We have very much considered that question, and you
will at once see that the price at which we shall be able to offer
the Reports on this new system will depend on the support we
obtain from the Profession. If the Profession are sincere, which I
have no doubt they are, in their expression of the evils of the pre-
sent system, and want Reports at a cheap rate, such as we propose
by the 20th rule, they must give their support to the scheme, not only
by voting for the adoption of the report, but by their subscriptions.
If we get, as I have little doubt we shall get, two thousand or more
subscribers, I believe we may safely supply these Reports at the
amount of five guineas for the whole set. If we are not supported in
164 HISTORY OF “THE LAW REPORTS.”

that way by the Profession we shall not be able to supply the Reports
at so cheap a rate. It appears to me, therefore, that the price of the
Reports will chiefly depend on the course which the Profession takes
upon the subject. If not only barristers but the other branch of the
Profession give the new system the support which I expect they will,
then I think there is no doubt the Profession will have really good
Reports of Cases decided in the Appellate and all the other Superior
Courts, at the rate of five guineas a year. [Hear! hear!] If we find
that the wish to have an improved set of Reports is not so great as
we expect, it may be necessary to issue invitations for subscriptions
at an increased rate. I will not anticipate that. I believe there will
be a sufficient number of subscriptions to enable us to furnish Reports
at the rates proposed. Everybody will see that that will be a very
great boon to the Profession, and I hope to see it successfully carried
out. With these observations I will not detain you longer; but I
will move the formal resolution that this Report be adopted. [ Cheers. ]

Mr. Epwarp James :—Mr. Attorney-General and Gentlemen, I have
been requested to second the motion for the adoption of this Report.
Not having been a member of the Committee I have not had an
opportunity of considering in detail the questions that have been
brought before them, nor have I had an opportunity of considering
very carefully or minutely the details of the scheme now proposed ;
but having myself felt for a very considerable period the evils which
exist with respect to the present system of reporting, I am perfectly
satisfied that that system ought not any longer to continue, and the
only question remaining on my mind was, whether there was any
scheme whatever likely to be adopted which, to some extent, if not
altogether, would cure the defects of the present system. Now, it
pleased the Profession at large to entrust the investigation of this
matter to a Committee, who have had ample opportunities of consulting
among themselves and of making inquiries, to which reference is
made in their Report, touching the mode in which Reports were carried
out in other countries; and I feel bound to give them credit for all
they have done, and think they have deserved the thanks of the
Profession, as has been stated by the learned Attorney-General.
[Hear ! hear !] In seconding the adoption of their Report I do not
consider myself bound to state that I entirely approve of every portion
of it. I think we shall be fully justified (at all events, all those
who consider the present mode of reporting defective will be fully
justified) in giving a fair trial to that scheme which, after great de-
liberation, has been laid before us and has been submitted to your
notice. If it answers, we shall all derive benefit from it. If it does
not answer in its totality, it may be subject to such alterations as may
. HISTORY OF “THE LAW REPORTS.” 165

from time to time be advised, and which may, in the opinion of those
gentlemen to whom the alterations will be entrusted, be for the benefit
of the Profession. It is for these reasons that I am inclined to
recommend to the meeting the adoption of this Report in its entirety.
It strikes me that, with respect to the financial portion of the scheme,
great difficulty may be encountered, but I have not had an opportunity
of considering that matter so fully as I should have liked to have
done. However, it strikes me that there is one matter which consti-
tutes a desirable improvement on the present system, that is, securing
the control of Editors over the Reporters. That is a very desirable
thing indeed, and it ought to be conducted by men of the, greatest
eminence in the Profession, who would be inclined to give their
services, which will undoubtedly be very onerous, and to secure that
we ought to give very large salaries. It occurred to me that the
amount specified here would be inadequate to the securing of such
services; but that is a matter of detail, and I observe that by one of
the provisions in the scheme there is power given to the Council to
vary the duties of both Editors and Reporters and to alter their
salaries. That may be either to increase or to diminish them. You
will pardon me if I fulfil the requirement of the Attorney-General by
not making a long speech. In the first place, I am not inclined to do
so, and in the next place, if I were so inclined, I am entirely unable,
and therefore I shall at once conclude by seconding the resolution
that this Report be adopted.

The Cuarrman then put the qnestion to the meeting that the
Report of the Committee be adopted.

Mr. W. M. Besr :—Mr., Attorney-General, Perhaps I may be allowed
to say a word or two upon the scheme which has been proposed,
being a Reporter myself. Ido not wish to speak of the scheme
generally. There is only one point in it that I look upon as a matter
of principle, and not of detail, and from which I am prepared to dissent.
and should wish to have the opinion of the meeting upon; I mean
that portion which relates to the appointment of Editors. I look on
that as a question of principle, and it isa matter upon which I require
to have the judgment of the meeting. I doubt whether the Committee
have given to this matter all the consideration it deserves. I doubt,
among other things, if they have taken the pains to inquire what is
the practice of the Reporters, and whether there is any course pursued
at all analogous to the system of editing. Perhaps the meeting will
allow me to observe, that the practice with regard to the Reports with
which I am connected, the Queen’s Bench Reports, is this, which was not
asystem invented by myself or my colleagues, but which we have taken
and followed as.we found it, which was formerly pursued by Adolphus
166 HISTORY OF “THE LAW REPORTS.”

and Ellis, Ellis and Blackburn, and Ellis and Ellis—it is a system of
mutual supervision. A Reporter takes a note of the case, prepares his
report, sends it to the press, and then he sends a proof to his colleague,
who revises it, and looks at it as closely as anything can be looked at,
He first of all verifies the authorities, so that there is a double verifi-
cation of the authorities in that report. This he sends to his colleague,
having marked in pencil any suggestions or observations which he
thinks desirable to make; but these are not obligatory on his colleague,
they are only matter of friendly advice, and his colleague, in his turn,
performs the same for him. The report is under the undivided re-
sponsibility of the person who made it, the other having no control
over it. This is the practice with regard to that series of regular Re-
ports with which I am connected. What is done with regard to the
others I cannot say, for I do not know. For some regular Reports
there is only one Reporter, and therefore, of course, the system to
which I have alluded is impossible with regard to those ; but whether,
when there are two Reporters, that system is followed or not I am
unable to say. Perhaps some of the Committee, or some gentleman
present, can give us information about it. Now it is proposed to do
away with the present system, and to place the Reporter under a
person hitherto unknown in reporting, that is to say, an Editor. No
such person was found necessary for the reports of Durnford and East,
or Barnewall and Alderson, or Barnewall and Cresswell, or Adolphus and
Lillis. [A voice: “The Law Journal.”] It is so with “The Law
Journal” I am quite aware. An Editor is necessary for “The Law
Journal,” and it is right there should be an Editor where a number of
reports are collected together; and it must be remembered, also, that
“The Law Journal” contains not only reports but a series of statutes ;
it is a work which appears monthly, and for many reasons, too nu-
merous to state, it is quite proper to have an Editor for “The Law
Journal.” An Editor is also indispensable to a newspaper; but I do
not admit the analogy between a newspaper and a regular system of
Reports. The Committee do not define the duties of the proposed
Editors. If I remember right, their Report states, that the duties of
the Editors and Reporters are to be determined by the Council. I
think this meeting ought to consider and determine that matter. If
what is intended is that the Editor is to verify all the authorities and
to see there are no mistakes of that sort, and to exercise the functions
of reader of the press, no one could make any objection, further than
it would not be necessary to pay a gentleman £600 a year to do what
an intelligent clerk could do quite as well. Is it the intention of the
Committee that the Editor is to have a controlling power over the
Reports? After a report is sent in to the Editor, is the Editor to say,
HISTORY OF «THE LAW REPORTS.” 167

acting either at his own suggestion, or under the influence of others,
“Oh, that case ought not to be reported, I put my veto on it,” or,
what is far worse, is he to have the power of rejecting a sentence
which he does not like, or to strike out a word that he does not con-
sider elegant? One great evil would folluw, which is, that the inde-
pendence of the Reporter would be destroyed ; and another, that there
would be a divided responsibility. If the report is wrong, if the
report is open to any objections, if it is inaccurate, if it is incomplete, or
if it does not appear in time, who is to be responsible? The Reporter
will say ‘Iam not; there is an Editor over me, I sent the report in
such a form, and the Editor struck it out.” Jf the Editor is attacked,
he will say, “It is not my report, my name is not to it; I am only
the supervisor.” For these reasons I venture to suggest to the meet-
ing that they ought to consider this matter, and we ought to have a
distinct statement by the Committee what duties the Editor is to
perform. If he is to perform the duties I have mentioned, I would take
the sense of the meeting, and vote against it. If it is the first I men-
tioned, it is unobjectionable except on the ground of expense. Before
T conclude, I desire to bear my humble testimony to the labours of the
Committee, but I have thought it right to bring this before you, and
I will not trespass on your time any longer. J ought to conclude, in
point of form, by moving that all those clauses of the Report which
relate to the system of editorship be expunged.

The Cuairman :—If I may take the liberty of suggesting the
form in which that amendment should be put, I would suggest that
Mr. Best should move, that there be added at the end of the resolu-
tion, “ with the exception of that part which relates to the superin-
tendence of Editors.”

Mr. Best:—I would rather move it, Sir, as has been suggested to
me, in this form :—Rule 5 provides, “I'he Reports shall be prepared
by Reporters under the supervision of Editors.” I beg to move the
omission of the words ‘‘ under the supervision of Editors,” it being
understood that if those words should be omitted the corresponding
alterations throughout will be made.

The Cuairman :—Yes, that will answer the purpose.

Mr. A. E. Minter :—Mr. Attorney-General and Gentlemen, I have
great pleasure in seconding the amendment. I will promise the meet-
ing not to detain them longer than till the hands of the clock reach
the hour of five (it being now five minutes to five). I have very few
words to say, because the Profession will judge for themselves of this
scheme so far as it relates to the Profession generally, and I will con-
fine my few observations to my views of it so far as it relates to that
particular body which my friend Mr. Amphlett has called ‘the
168 HISTORY OF “THE LAW REPORTS.”

authorized Reporters.” It appears to me that this proposal, in its
present form, simply amounts to this :—the Committee kindly ask us
to acquiesce in a scheme which is to deprive us entirely of all control
over our own Reports—to sacrifice that independence which, after all,
is the only advantage we have over anyone else—to subject us to
some supervision or other, we don’t know what—to be managed by,
we don’t know whom—and in return, to pay us, or rather to offer us
somebody’s guarantee, for something less than what we now get.
(Hear! hear! and laughter.| I sincerely hope that, whatever else
the Profession may do, they will stamp, by their vote on this question
of Editors, their opinion of another portion of the same scheme ; for it
appears to me that this idea of placing Editors over the Reporters is
exactly on the footing of another notion propounded in this scheme of
placing a Council over the Reporters. (Hear! hear!) I confess it is
entirely beyond my conception why any set of gentlemen should pro-
pose that an arbitrary and irresponsible Council, who do not contribute
one sixpence towards the expense of the Reports, and who do not re-
present any person who does contribute one sixpence towards that
expense, should have complete control over the management of the
Repo ts, the salaries of the Reporters, the amounts at which the Reports
are to be issued to the public, and every other detail of the scheme. If
the Council were to be elected by the subscribers, unworkable as I believe
such a plan would be, it would at least be theoretically defensible ;
but why the Benchers of the several Inns, who carefully avoid being
responsible for one halfpenny in case of failure of the Reports, or in
case the scheme should fail—as in my judgment it will fail after the
first year or so, after the persons at present in possession have been
cajoled out of their places—why they, without having any responsi-
bility, should have all the control, Ido not know. Iam very happy
in seconding my friend’s amendment; and if he had carried it to the
exclusion of everything relating to the Council as well, I should
gladly have seconded that also.

Mr. Worpswortn :—Mr. Attorney-General, before that amendment is
put, I wish to move an adjournment. It seems to me that the matter
under consideration is one of very great interestand very great import-
ance. It must be admitted that the Report of the Committee has been
placed in the hands of the members of the Bar, and other persons in-
terested in the discussion of the question, only within a very short time,
so that it is impossible that due consideration can have been given to it.
There are many persons who have not had an opportunity of considering
the scheme at all, and I think that the scheme displayed in the Report
of the Committee, without taking any formal oljection to it, may be
deemed to be one of a complicated nature, and it certainly must be
HISTORY OF “THE LAW REPORTS.” 169

taken to affect, very seriously, a variety of vested rights. What I
have, therefore, to submit to the gentlemen present is—are you in a
condition at the present moment to come to a decision on the ques-
tion? Have you had sufficient time, or has proper opportunity been
afforded to other persons, to consider the great change which is pro-
posed to be effected by the scheme submitted by the Committee? J
submit that sufficient time has not been afforded. I shall, there-
fore, move that the further consideration of this subject be postponed
until some day in the month of November next; and, in making
that proposition, I may perhaps be permitted to throw out the sugges-
tion, that the objects contemplated might possibly be effected in
a much simpler form; and therefore it is necessary that some adjourn-
ment should take place in order to consider whether a simpler and
better plan might not be adopted. If an Act of Parliament were
passed authorizing the Lords of the Treasury to give compensation to
vested interests, upon those interests being ascertained by the Judges
of the respective Courts, and sufficient provision were made for exist-
ing interests, it would then remain a simple matter for the Judges of
each Court to nominate a fit and proper person to be a Reporter of
each Court.

Mr. Matins:—Mr. Attorney-General and Gentlemen, I rise to
second the proposal of my friend Mr. Wordsworth. Iam inclined to
give the greatest possible confidence to the Committee. We could
not perhaps have selected a more able Committee, or one entitled to
higher consideration ; but, in order that we may sanction this very
important proposal, I quite agree, and I think the meeting will quite
agree with Mr. Wordsworth, that it is necessary it should receive
very deliberate consideration. This Report has been presented to us
at a season of the year when we are under such pressure that it is im-
possible to give attention to the matter. [Laughier.] Some are en-
gaged in one way and sume in another ; it is not necessary for me to
say how, but I can only say for myself—[Cries of “Oh! oh!” and
cheers|—I am sure gentlemen will not suppose that I am speaking of
any political matters. [Laughter and cheers.| But this Report was
sent to me in the course of this week: certainly I never saw it until
after Monday. I confess I have not been able to do more than
glance my eye through it. I have not been able to give it con-
sideration, and I strongly suspect that there are many other gentle-
men in the same situation. Although I am quite aware, with
reference to what my friend Mr. Wordsworth has said, that it is not
practicable to give compensation, yet I cannot disguise from myself
that this Report deals with a number of vested interests, and those
vested interests are not to be lightly regarded—([Hear! hear /]—and
i70 HISTORY OF “THE LAW REPORTS.”

before we abolish an existing system, however great our confidence
may be in the Committee, it is the duty of those who compose this
great meeting to consider that we thoroughly understand what is
proposed to be done. It is proposed, as I understand, to abolish the
existing system of reporting altogether. We agreed on the former
occasion that there were very great evils in the existing system; it
has imperfections; it is committed to the hands of gentlemen who
have other duties to perform. We cannot blame gentlemen, con-
sidering the slight remuneration which reporting affords, for making
other engagements. They cannot sacrifice their professional income.
It is now proposed that those who undertake the duties of reporting
shall have a salary which will make it worth their while to sacrifice
their professional income. [Cries of “No! no!”]| They must make
that sacrifice to a certain extent, undoubtedly. [Hear ! hear /] I find
one proposal which certainly involves it, namely, that those who un-
dertake reporting shall make it their duty to attend the Court. Now,
if any gentleman in this meeting will tell me that if those who un-
dertake reporting are obliged (whatever their professional calls may be)
to bein Court during the whole of the sitting—[A voice: “There are
to be two !”]—whether there are to be two or two hundred I do not
care—-if that does not involve at certain times the sacrifice of profes-
sional income, all I can say is, that my experience in the Profession is
thrown away, because my experience has been that there is no en-
gagement which absolutely takes you away from your practice which
will not interfere with your professional pursuits in such a manner
that no man can calculate what effect it may have on his after life.
Therefore, before I concur in a scheme proposing to effect so great a
change—affecting vested interests to so great an extent, and affecting
personal practice so much, I should require time to give it further
consideration. What can be the evil of a slight postponement? Weare
now in July. What can be done between thisand November? There
is a period of leisure coming, when even the Attorney-General who
presides over us may be able to give his attention to it. [Cheers und
laughter.] Probably my friend the Attorney-General may have more
leisure than he desires. [Renewed laughter] But, however this
may be, it is only a proposal to postpone the consideration of the
Report until the cool days of November ; and if we take the Report
into consideration, and then in November meet again to deliberate
upon it, considering that what we then do will be within a year from
the time of the appointment of the Committee, I do not think the
Profession at large, however ardently we may require an improve-
ment in the system of reporting, can say that there has been an undue
delay ; whereas undue haste may lead to steps that we may afterwards
HISTORY OF “THE LAW REPORTS.” 171

greatly regret. Iam not capable now of exercising a judgment upon
the subject, and therefore before I express an opinion upon whether
this Report should or should not be adopted, I certainly require
further time for consideration. [Hear ! hear !}

Sir Hucu Cairns :—Mr. Attorney-General, I only rise for the
purpose of saying that I own it seems to me, if there be anybody
attending this meeting who says there has not been ample and suffi-
cient opportunity of considering this Report, and who wishes for
adjournment, it seems to me almost a matter of course that that
adjournment should take place. (Hear! hear/] This is a matter of
very great importance. We had very great discussions and very
great difficulty as to what should be the proper view to take of the
whole matter when the Committee was appointed. It is not to be
supposed that a Committee which has held a great number of meet-
ings, and which I can say, from my own experience, has had the
greatest difficulty in arriving at the conclusion at which they did
arrive—it is not to be supposed, I say, that a subject which has
occupied the attention of the Committee can be disposed of on a
few moments’ consideration, such as we can give it here, and after
the Report has only been in the hands of the Profession a few days.
If I desired any support for the argument, my learned friend,
Mr. Malins, has given it, for he has certainly shewn that he has not
been able to read or to do justice to the Report. [Hear! hear! and
laughter. |

Mr. Matins :—I admit it.

Sir Hueu Carrns:—And I have no doubt that he and others, if
further time is afforded them, will derive great advantage from the
perusal of it. Nothing can be done before the winter, and I think
it is only a proper demand, that the time which will intervene
between this and November should be given to the Profession to
consider the Report. I hope, therefore, that you will adopt that
which is certainly the desire of a certain portion of the meeting.
[Hear ! hear !]

Mr. Evperton :—If this meeting be adjourned, time would be saved
if those gentlemen who have suggestions to make would hand in
their suggestions, so that they might be considered at the next
meeting with the Report.

Mr. Manisty :—I would make this suggestion, that those who are
prepared by November to accept the invitation to pay five guineas
annually, should send in a note to that effect. [Loud cries of “ Hear !
hear!” | By that means the sense of the Profession would be ascer-
tained by the time we next meet.

The CHainmMan :—It has been moved and seconded, that the further
consideration of this subject be postponed until a day to be hereafter

N
172 HISTORY OF “THE LAW REPORTS.”

fixed by—I suppose I ought to say, the Attorney-General for the time
being—[Loud cheers and laughter |—in the month of November next.
Carried unanimously.
The Cuarrman :—The meeting stands adjourned.
Adjourned at a quarter-past five o'clock.

It is proper now to state that a meeting of the Committee was
held on the 28th of June, after the Report to be presented had
been agreed to, for the purpose of making provision for defraying
the expenses of the Committee. Although the services of the
Honorary Secretaries were given gratuitously, some expenses
had been necessarily incurred in printing, distributing circulars,
postage-stamps, and other petty expenses. The accounts of these
expenses were got in by the Secretaries, and afterwards carefully
examined and checked by the Chairman with the necessary
vouchers, and it was found that a subscription of three guineas
from each member of the Committee would be sufficient to defray
all expenses. This subscription would amount to £69 6s. A
proposal for payment of that subscription was made and willingly
acceded to by every member of the Committee, so that, in fact,
at the meeting on the Ist of July all the expenses of the Com-
mittee had been met and paid by the voluntary contributions of
its members. Of course no mention or even allusion to this fact
was mentioned in the Report, or in Mr. Amphlett’s address to the
meeting ; but in a history of the origin of the Law Reports this
fact properly finds a place.

A few days after the Bar meeting, Mr. Joshua Williams
published and distributed among the Profession his reasons for
not signing the Report, of which the following is a copy :—

MR. JOSHUA WILLIAMS’S PAPER.

I rTuink it is due to the Bar that I should state my reasons for not
concurring in the Report of the Committee on Law Reporting, of
which I was nominated a member. The joint proposal of Mr. Ser-
jeant Pulling, Mr. Westlake and myself, mentioned in the Report,
does not in every particular represent my views. I agreed to some
alterations for the purpose of securing the co-operation of those
gentlemen.

It appears to me that the essence of all that is practicable by way
HISTORY OF « THE LAW REPORTS.” 173

of amendment of the present system of Law Reporting is comprised
in the three following propositions :—

1. That all judgments of the Superior Courts should, as far as
practicable, be written.

2. That all judgments of the Superior Courts, not committed to
writing before delivery, should be committed to writing under
the authority of the Court as soon as possible after delivery.

3. That access to all the judgments of the Superior Courts should
be afforded to every member of the Profession as speedily and
cheaply as possible.

I moved resolutions to this effect before the Committee, but the

first being negatived, I withdrew the others.

The judgments of the Courts make the Law. This alone is a
sufficient reason why their preservation should not be left, as at
present, to the care of any Reporter who may chance to be present,

Accuracy is evidently the first requisite. To secure this the best
means should be adopted. Writing evidently secures accuracy better
than speaking. But if a judgment must needs be spoken, a report of
it, made by a practised shorthand writer, and perused and signed by
the Judge, appears to me to be the next best means of securing
accuracy.

Speedy and cheap access to the judgments when once they are
accurately recorded is evidently best obtained by their being printed
as soon as possible, and published at the lowest price that will cover
the expense of their publication.

Reporting as now used is a complex operation. It comprises an
accurate statement of the judgment so far as the Reporter’s means and
opportunities may allow; but it includes also selecting, digesting, and
abstracting, so as to present in a readable form the decisions of such
cases as the Reporter thinks worthy of publication.

The great mass of materials is an evil that can never be overcome.
No one can prevent two persons from going to law about any matter
whatever; and, if they do, a decision more or less valuable mnst be
the result.

I think that the present Reporters exercise functions which ought
to be separated. So far as they aim merely at an accurate report of
the judgment, their functions appear to me to be such as would be
more properly discharged by an official person. So far as they select,
digest, and abstract, so far, I think, should their duties be open to
competition. The records which form the sources of history are all
officially preserved ; but history itself is written by individuals, whose
success is proportioned to the ability they display in selecting and
digesting.

The Scheme recommended by the Committee proposes tv unite

nN 2
174 HISTORY OF “THE LAW REPORTS.”

functions which, I think, should be kept separate. The proposed
incorporation of a new body by Letters Patent or Act of Parliament
appears to me to involve a constitutional change far too important for
the evils complained of. But my main objection is, that it does not
strike at the root of the evil, which lies in the want of an accurate
official record of every judgment pronounced by the Courts.

JosHua WILLIAMS.
3, Stone Buriprines, Lrncoun’s Inn,
July 6, 1864.

The interval between the 1st of July and the day in November
to be thereafter named by the Attorney-General for the further
meeting of the Bar, afforded an opportunity to those who were
opposed to the Bar Scheme, of which they took advantage, to
depreciate it, as I thought unfairly, in the eyes of the public and
the Profession. “The Law Times” went so far as to impugn the
motives of the Committee, and even to suggest that the whole
scheme was a clumsy and ill-concealed snare laid by a single
individual with a view to his own personal benefit and advantage.
An anonymous writer in “ The Saturday Review ” did not hesitate
to indulge in acrimonious remarks which exceeded the bounds of
fair and legitimate criticism. The suppressto vert and the suggestio
faisi may be regarded as legitimate modes of attack in matters
of public concern where private interests are thought to be in
danger, but I felt that in this case they were unfairly and un-
justly resorted to, and, having regard to the professional sources
from which they sprang (certainly in the case of “The Law
Times,” and possibly also in the case of “ The Saturday Review”)
they were attacks against which the high professional character
of the members of the Committee—laying myself on one side—
should have been a sufficient protection; and especially against
attack from any member of the same Profession. The nice sense
of honour which was the characteristic of the Bar in its dealings
with its brethren is, I trust, still a living principle, and has not
waned before the waxing influence of any temptation which
would tend to lower the character of the Bar. Influenced by
the sense of injustice and dishonour they had done to the
Committee, and the attempt to depreciate their labours in order
to advance the selfish interest of their detractor, I obtained the
consent of the Attorney-General to address a further letter to
HISTORY OF “THE LAW REPORTS.” 175

him on the subject; and accordingly, in anticipation of the
meeting in November, I prepared and printed, and on the 29th
of October, 1864, published, a letter of which the following is a

copy :—

LAW REPORTING.

A Letter To Sir RounpEtt Paumer, Knt., M.P., Her Masesty’s
ATTORNEY-GENERAL, having particular reference to THE
ScHEME oF Law REPORTING RECOMMENDED BY THE Com-
MITTEE APPOINTED AT THE MEETING OF THE Bar held
December 2, 1863, by W. T. 8. Dantet, Q.C.

To Str RounpELt Parmer, Knv., M.P.

Her Majesty’s Attorney-General.
Sir,

Tavail myself of your permission to address to you, and through
you to the Profession at large, a further letter upon the subject of
Law Reporting. This subject, since it has been stirred, has, though
eliciting various differences of opinion, been entertained by the Bar

- with so much earnestness, and the several periodical publications con-
nected with the Law—* The Law Magazine,” “ The Jurist,” “ The Law
Times,” “The Solicitors’ Journal,” and recently “The Saturday Re-
view ”—have, by leading articles and correspondence, real or imaginary,
succeeded in keeping the subject so constantly before the Profession,
that the interest felt in its discussion may be regarded as somewhat
commensurate to its importance. Ever since the 12th of June, 1863,
when the Lord Chancellor, in his speech “on the Revision of the
Law,” exposed the glaring evils of the present system in a manner
and to an extent which admitted neither of denial nor qualification,
the conviction that amendment is desirable and necessary has, I
believe, been spreading and deepening in the mind of the Profession
and the public, so that the question of amendment has ceased to be
merely matter for discussion among amateur Law Reformers; it has
taken its place among those grave public questions which call'.for
solution by the firm application of an efficient remedy. Such are the
admitted difficulties, however, which beset the question, that the
remedy can hardly be expected to be found by any who would enter
upon the labour of its discovery in the spirit either of dogmatism or
self-interest. The evils to be remedied must not only be carefully
ascertained and defined, but their causes and origin must be dispas-
sionately and fearlessly investigated and traced, the public interest,
176 HISTORY OF “THE LAW REPORTS.”

as the prime object, being always kept steadily in view. This done,
there may be some hope that an efficient remedy may be found.

The Bar as a body, owing a duty to the public, to prevent a privi-
lege, claimed to belong to itself as an institution, from being exercised
by its members in a manner detrimental to the public interest, was
appealed to to devise a remedy. That appeal was answered by the
meeting held under your auspices on the 2nd of December, 1863, in
pursuance of a requisition signed by upwards of 380 members of the
Bar. At that meeting, with but faint resistance, a resolution was
passed expressing the opinion of the Bar “that the present system of
preparing, editing, and publishing reports of judicial decisions in this
country requires amendment.” That resolution was followed by the
appointment of a Committee to prepare a plan for the amendment of
the present system and report thereon to a future meeting (1). The
Committee so appointed undertook the duty involved in the resolution,
and, after six months of careful investigation and inquiry, fifteen of
the twenty-two members concurred in making their report, and ap-
pended to it a plan of amendment in the form of a scheme which they
recommended for adoption (2). On the Ist of July, 1864, a second
meeting of the Bar was held under your auspices to consider the
Report and Scheme. By unanimous resolution this meeting was
adjourned to such day in November next as the Attorney-General
for the time being should appoint for the further and fuller con-
sideration of the matter. The appointment of a time and place for
holding the further meeting awaits your fiat.

At page 157, will be found a copy of shorthand notes of the proceed-
ings of the meeting on the Istof July. A perusal of these will remind
you of what transpired at the meeting, and what led to its adjournment.
And it was to me matter of surprise that any publications, affecting
to furnish correct information to the public, should have fallen into
the mistake of representing, much less of repeating with zealous per-
severance, that the proceedings of the Committee had proved a fiasco,
and that the Profession would be troubled no more with the Report or
Scheme. Notwithstanding this weak invention of the enemy, I pre-
sume, Sir, the meeting will be held; and that the question of adopting
the plan as recommended, with or without modification, or rejecting
it in toto, will be considered and decided ; and I cannot bring myself
to doubt for a moment but that the proceedings of the meeting will
be conducted and concluded in a manner becoming the importance of
the subject and the character of the Bar.

My object in writing the present letter, and submitting the following
observations for the consideration of my professional brethren, is, to
promote and assist the full and fair discussion of the Scheme recom-

(1) See p. 80. (2) See p. 151.
HISTORY OF “THE LAW REPORTS.” 177

mended by the Committee; being satisfied that, whatever may be the
decision of the meeting thus shortly to be held, the time and labour
that have been bestowed upon the matter will not have been thrown
away, but that a positive good will be achieved by a knowledge of
the fact that the Bar as a body are willing, or decline, to co-operate
in the redress of the existing evils, and to exert for that object such
influence and authority as they, as an institution, possess.

As I write solely on my own authority, and am not in any manner
directly or indirectly authorized to represent the opinions or views ot
any other member of the Committee; and further, as the responsi-
bility of naming the Committee at the meeting of the 2nd of Decem-
ber, 1863, under the circumstances then existing, chiefly devolved
upon me, it may not be amiss that I should say a few words as to
the composition of the Committee, and the relation of its members
towards the Profession of which it thus became in a sense the repre-
sentative.

The number of the Committee as originally proposed, exclusive
of the Hon. George Denman, was twenty-one, and consisted, as a
reference to the names will shew, of nine members of the Inner Bar,
and twelve members of the Outer Bar. Of the nine members of the
Inner Bar, five, including the Queen’s Advocate, represented the
Common Law Bar, and four the Equity Bar. Of the twelve members
of the Outer Bar, two represented the Conveyancers, five the Common
Law Bar, and five the Equity Bar. Mr. Denman was added to the
Committee at the meeting, thus increasing the entire number to
twenty-two, and those of the Inner Bar to ten; and of those ten
making the proportions of the Common Law Bar and Equity Bar
respectively six and four.

It will thus be seen that an attempt was made to secure, as far as
numbers went, what I hope will be thought to have been a fair pro-
portion between the several divisions of the Bar as they exist in
practice—Conveyancing, Common Law, and Equity. And as to the
members selected, the attempt was also made to make such a selection
that, as regarded professional position, individual independence, and
personal honour, each should be omni exceptione major. And notwith-
standing some discourteous attempts to depreciate the character and
impugn the motives of the Committee, in which anonymous journalism
has condescended to indulge, I believe that, whether the result of the
labours of the Committee be accepted or not, no honourable member
of the Bar will permit himself to doubt that those labours have
been undertaken, and the result proposed, with singleness of purpose,
directed solely to the public object for the furtherance of which the
Committee were appointed.

In these observations, of course I speak only of my colleagues, and
178 HISTORY OF “THE LAW REPORTS.”

to them perhaps an apology is due for noticing what they would
think not worth notice. My apology must, however, be found in the
fact that the poison of a false insinuation spreads in unseen and un-
known directions ; and even a contributor to “ The Saturday Review ”
has spoken of the fear “ that an agitation set on fvot for the improvement
of the Law might degenerate into a mere speculation for the benefit
of Lawyers ”—as inducing members of the Bar to stand aloof from a
movement which, on its own merits, they might be disposed to support.

The steps which the Committee took to arm themselves with the
means of properly discharging the duty they had undertaken, are
detailed in the Report. In answer to their circular inviting observa-
tions and suggestions, the Committee received communications from
seventy-four members of the Profession, including Lord St. Leonards,
the Right Hon. Joseph Napier, V.-C. Wood, and Mr. Justice Willes.
In addition they also received communications from four Societies of
Attorneys and Solicitors—the Law Institution, and the Associations
at Leeds, Worcester, and Birmingham. The Committee were desirous
of obtaining statistical information from publishers and proprietors
of existing Reports, but prudential reasons appeared, and not un-
naturally, to oppose obstacles in the way of any such information
being furnished by parties interested. The Committee were neverthe-
less in possession of sufficient data to enable them to discharge their
duty.

The communications they received appeared to shew as a result
that professional opinions were divided substantially into three
classes :—

1. Those who considered that the present system of Law Reporting
was so far satisfactory that it was inexpedient to interfere with it at
all; or, if interfered with, that the interference should be effected by
authority of the Legislature and Government, and be accompanied by
proper compensation to existing interests.

2. Those who disapproved of the existing system, and insisted that
interference was necessary, but that it should be effected by authority
and accompanied by compensation.

3. Those who disapproved of the existing system, and desired to
establish in lieu of it a system founded upon professional co-operation,
and to be under professional control, without any direct interference
by the Government.

The first class was further sub-divided into those who admitted
interference as an alternative, if undertaken by authority and accom-
panied by compensation ; and those who considered the present system
to be on the whole so good as not to admit of any interference what-
ever, without introducing, as the result of such interference, greater
evils than any that could be redressed.
HISTORY OF “'THE LAW REPORTS.” 179

The second class also included some who not only considered that
the present system should be changed by authority, but that the
change should extend to the remodelling of our system of reporting
altogether by requiring that the motives—the grounds and reasons—
of judicial decisions, should be recorded by Registrars assisted by
short-hand writers, both acting under the authority of the deciding
Judge; so that, in effect, no other report than the record would be
required as evidence of the Law, and, as a consequence, that the record
should be both exclusive and conclusive—adopting, in short, the
French system as the model.

With respect to the sub-division of the first class before alluded to,
namely, those who maintained that nothing should be done to inter-
fere with the present system, they had in Mr. Denman a most able
and zealous representative of their views, but no other member of
the Committee expressed concurrence in those views. The necessity
for amendment was admitted, and the only question was, what that
amendment should be.

I think, however, that as the opinion that nothing should be done
is entertained by those to whom great respect is due, and as this view
appears to be favoured by the very compact body of opponents who
represent “vested interests,” it is right to consider upon what grounds
it is attempted to be maintained that things should be left as they
are. The prime argument, as I understand it, in favour of doing
nothing is, that the present system rests on the principles of Free
Trade ; that the result has been, and is, unlimited competition ; and
that any evils which may result from competition will be cured by
competition if left free. It is alleged, and truly, that before the
establishment of the present system the Reports had become a mis-
chievous monopoly, fostered by judicial influence. The result of free
competition has been, it is said, and truly, to destroy that monopoly,
and put an end to all undue judicial influence, if it ever existed; and
thus no case which the interests of the public require to be reported
can, except by the strangest mischance, escape the attention of the
numerous Reporters that now attend each Court, and supply materials
for the six existing sets of Reports. The Profession are thus, it is
said, sure of having everything of value in the shape of decision
brought before them; and the Judges cannot refuse to permit the
citation of any case, the report of which is accredited by a barrister ;
and, although the prestige of authorized Reports may be attempted to
be kept up, and, when a case is cited from any other publication, a
Judge may ask whether the case is not reported,—in whatever the
soi-disant authorized Report in the particular Court may happen to be,
and prefer that report, if forthcoming, yet the public have the security,
resulting from free reporting, that the judicial mind is kept in check,
180 HISTORY OF “« THE LAW REPORTS.”

and prevented from erring either through partiality for, or dislike of,
any particular Report or Reporter. These advantages being undeniable
are claimed as the results of unlimited competition. And it is insisted
that they are not equally attainable by any other means. And then
it is asked what are the evils complained of as resulting from this
system? That there are six sets of Reports, whereas one, or at most
two, are all that the Profession require; that to take all the Reports
costs a large sum of money, and this is a burden to practitioners.
The objectors, answering their own objections, reply: Be it as you
say—this burden falls only on practitioners in large practice ; they are
few in number and can afford to pay; cost, therefore, is no grievance
either to the public or the Profession generally ; and as to the number
of Reports, that is no evil worth talking about, because no man need
take more Reports than he requires, or even any Reports at all unless
be likes. Whereas, cn the other hand, say those who deprecate inter-
ference, any change which proposes a restriction, no matter in what
form, upon the perfect freedom of reporting, is a departure from a
principle, the soundness of which none but simpletons or bigots will
at this day dare openly to question. The principle once departed from
the facilis descensus is commenced, and there will be no stopping till
the bottom is reached, and “monopoly,” in all its hideous deformity,
re-established, and Judges again become despotic. Interfere with the
present system, say those whom the system suits, you interfere with
Free Trade. Free Trade has destroyed monopoly; interfere with
Free Trade you restore monopoly. And thus, with them, all argument
is out of place and inquiry useless !

“ Quieta non movere” is a maxim which does very well for those who
are in possession of what contents them; but the sentiment involved
is not palatable to those who feel a grievance and desire to find relief.
Is it quite clear that reporting judicial decisions for citation as autho-
rity, is a proper subject to which to apply the principles of Free
Trade? This is a question which must be satisfactorily answered in
the affirmative by those who resist all change. In my former letter I
endeavoured to point out that a system of Law Reporting, intended for
citation as authority, was not properly the subject of Free Trade, and
stated the reasons for that conclusion; I am not aware that those
reasons have ever been shewn to be fallacious. I will shortly restate
them: Free Trade is properly applicable to that which can be the
subject of legitimate commerce; that is, to some subject in which full
play can be given to the unrestricted employment of skill, labour, and
capital, and that these should be capable of application to the raw
material, the manufactured article, and the demand. Now, is Law
Reporting such a subject? Is not Law Reporting, in our system of
jurisprudence, an essential part of law-making—and is not law-making
HISTORY OF «THE LAW REPORTS.” 181

specially a matter of public concern? The raw material is beyond the
reach of commerce; it consists of matters of litigation which arise in
Courts of Justice, and can neither be increased nor modified, nor in
any manner affected, either in quantity, quality, or cost, by any com-
mercial agency, The manufactured article is the product of the
labour of a privileged class, whose services must be resorted to—a, state
of things directly opposed to Free Trade. And lastly, the demand is
created by the necessitics of the public for a knowledge of the Law,
and these exist independently of all commercial agency. Thus,
experience shews that, in the matter of Law Reports, the fundamental
rule of political economy which underlies all Free Trade, that demand
will regulate supply, is reversed and turned upside down, for here
the supply creates and necessitates the demand. Under the present
system, if Reports are published—no matter how indifferent in quality
or how excessive in quantity or number—as they may be cited as
authority, practitioners must have recourse to them. Thus, an illegi-
timate supply creates an illegitimate demand. Experience has further
proved that, by applying competition resulting from Free Trade as
the remedy for redressing the evils of the old monopoly, those evils
are not redressed—the authorized Reports still live on, still dilatory,
and irregular, and as costly as ever. In addition, the remedy has, in
its application, introduced evils of its own as great as those it affected
to remove. Those who resist all change in the present system
endeavour greatly to underrate the evils introduced by competition.
Their endeavour is to represent those evils as amounting to no more
than a personal burden or tax upon the individual practitioner—
increasing his trouble in searching for the Law, and swelling the
amount of his bookseller’s bill. That is, however, a very superficial
and partial view of the matter—the evil reaches much further and
deeper; it reaches from the advocate to the practitioner—from the
practitioner to the client, and the client is, in this matter, the public.
It affects the substance of the Law, and the public interest in its
administration. A writer in “The Saturday Review,” though not
approving the scheme recommended by the Committee, thus describes
the evils of the present system :—

The real grievance is the monstrous redundancy of the Reports. Not only is
every case printed again and again in rival publications, at an expense which
of course falls upon the consumer of these curious products, but every decision
worthy of preservation as a landmark of the Law is overwhelmed and buried in
a mass of reports, so voluminous as to baffle the keenest industry, and for the
most part so worthless as to serve no conceivable purpose, except to embarrass
the decision of future cases. Every day it becomes more difficult to extract any
legal principle from the enormous heap of débris from under which it has to
be picked out; and if the Law itself is to be preserved and amended, the first
182 HISTORY OF “THE LAW REPORTS.”

condition is to save it from being smothered by the hands of those who under-
take to present it in an accessible shape.

In a valuable paper which the Committee received from Mr. G. W.
Hemming (the senior Reporter in V. C. Wood’s Court), who, however,
prefers an official system to the present, and sees no middle course
between them, the objections to the present system are thus spoken
of :—

I think it may be assumed that very strong objections exist to the present
system of reporting, but I doubt much whether the Bar are at all agreed as to
what the objections are.

The following are the points most dwelt upon :—

1. Singleness and authority in the Reports are insisted on, on one side, as
essential to certainty in the Law; while, on the other, competition and multi-
plicity are supposed to ensure greater general accuracy, though at the expense
of occasional conflict and uncertainty.

2. Multiplicity of Reports is objected to by some as entailing on the Bar
needless labour and useless expense, while others extol the system as affording
the best possible education to a large body of industrious juniors.

8. Self-constituted and competing Reporters are supposed to be a greater
check upon negligence, whether on the Bench or in the reporting staff, than
would be supplied by an official staff of Reporters, while against this it is
argued that the free trade system inevitably leads to the reporting of a dozen
worthless cases for one of real value as a landmark of the Law.

And, after dealing with the two chief difficulties in either system,
Finance and Patronage, his crowning reason for thinking it desirable
to do away with the present system is thus stated, almost in the
language of the ‘“‘ Review ;’—

The monstrous absurdity of smothering the Law in a mass of printed Reports,
all the pith of which might be condensed into perhaps a tenth of its present
bulk, does, I think, outweigh every other consideration; and I am satisfied
that no remedy will ever be found for this evil except in some kind of official
system.

Again, in the masterly address recently delivered by Sir James
Wilde, as Vice-President of the Department of Jurisprudence and
Amendment of the Law, at the last meeting of the Social Science
Association at York, the learned Judge thus describes the public
mischief of an accumulating mass of undigested Case-Law :—

This vast agglomeration breeds not only confusion in those who are to be
bound by the Law, but inconsistency in those who administer it. No power
of assimilation can keep pace with that of such productions, and the tribunals,
occupied to the full with the business before them, have little time to master
the results of contemporaneous decisions. This evil is aggravated by a compe-
titive system of reporting, and the record of useless decisions.

More than half a century ago, the same views had been expressed with
much animation by Mr. Hallam, as quoted in my former letter :—

We accumulate precedent upon precedent, till no understanding can acquire,
HISTORY OF “THE LAW REPORTS.” 183

nor any intellect digest, the mass of learning that grows upon the panting
student.—See Mid. Ages, vol. ii. p. 123.

And so universal and deep-seated is the conviction of the evils of the
existing system that the shafts of satire have been lately levelled at
them by the poet.

—— The lawless science of our Law—

That codeless myriad of precedent,

That wilderness of single instances,

Thro’ which a few, by wit or fortune led,

May beat a pathway out to wealth and fame.
Aylmer’s Field.

I have discussed the merits of the laissez faire policy more at length
than, after the resolution of the Bar affirming the necessity for amend-
ment, may appear to be called for; but I have desired to make plain
the two conclusions at which my own mind has arrived: namely, first,
that the present system, as a remedy for the evils it affected to redress,
is founded upon a false principle; and, second, that the evils now
complained of are in great measure the fruit of the application of that
false principle. The false principle is this—permitting Law Reporting
for citation as authority to become a matter of mere commercial
enterprise, without any check or control in the interest of the public.
The private interest, which is the only proper and legitimate induce-
ment to all commercial enterprise, is sure to predominate over all
considerations of public benefit, whenever the two conflict. The only
question which the private adventurer proposes to himself is, “Can I
secure a profit?” and he makes all his arrangements conduce to that
end. The public interest is not cared for by him further than as his
chance of profit may be affected by the consideration of an over-stocked
market. No remedy can, in my judgment, be effectual which does
not eliminate commercial profit from reporting, and place reporting
under control. Why is quantity, not quality, the test by which pro-
prietors and publishers hope to get subscribers? Why is the advertise-
ment that so many hundred cases have been reported in the last half-
year the best recommendation that the publisher can put forward to
attract custom ? Why does the authorized Reporter feel himself obliged
to report cases which, being of no value as precedents, he in his better
judgment would not report? One and the same answer must be given
to all these questions: the expectation of commercial profit. To
secure that, as the prime object, the public interest is necessarily made
subordinate. In this respect the just order of things applicable to the
relationship of principal and accessory, master and servant, is reversed
as completely as is the true rule of political economy applicable to
supply and demand.
184 HISTORY OF “THE LAW REPORTS.”

Having thus endeavoured to deal with the question as viewed by
those who deny the necessity or practicability of any scheme of
amendment, I will now deal with the views of those who differ only
as to what the amendment should be. These differences range them-
selves, in principle, under only two divisions—l. Amendment by
external authority ; 2. Amendment by internal regulation and manage-
ment. Of those who desire amendment by external authority there is
a subdivision, before adverted to, into those who desire that the
amendment should extend to the remodelling of our system of
Reporting altogether, according to the joint proposal of Mr. Joshua
Williams, Mr. Serjeant Pulling and Mr. Westlake, and those who, as
proposed by Mr. Montague E. Smith, would content themselves with
the appointment of Official Reporters, to be selected by the Lord
Chancellor and paid by the State—the Government taking upon itself
the sale of the Reports and compensating existing interests.

As regards the plan proposed by Mr. Joshua Williams, Mr. Serjeant
Palling, and Mr. Westlake, I may state that it did not receive support
from any other member of the Committee: it involved changes so
sweeping, and was apparently attended with so many difficulties—
among others, those of finance, compensation, patronage, and judicial
influence—that it was not regarded as a practical remedy for a practical
grievance, however philosophical the principle upon which it rested
might be, namely, that of making the Law certain by assuring equal
certainty to the grounds of the decision, and the decision itself.
Upon the proposal being rejected by the Committee, Mr. Serjeant
Pulling and Mr. Westlake continued to work with the Committee, as-
sisted in the preparation of the scheme, and concurred in the recommen-
dation for its adoption. Mr. Joshua Williams has stated his reasons
for not concurring in the scheme in a separate paper which he caused
to be printed and circulated.

The choice of remedies will, I venture to think, be found to lie
between a strictly official system, as proposed by Mr. Montague Smith,
and a system based upon professional regulation and control, as
recommended by the Committee.

I would desire to state as explicitly as I can the objections which,
speaking for myself, appear to me to exist to an official system. In
considering these objections, it is impossible not to bear in mind that it
has been once tried in this country and failed. I allude to the attempt
made by Lord Bacon in the time of James I. to revive the ancient
office of Reporter, which had been dropped by Henry VIII. A
copy of the Letters Patent authorizing the appointment of Official
Reporters is printed in Rymer’s “ Feedera,” vol. xvii., p. 27. Two
persons appear to have been appointed Reporters under these Letters
Patent. The title to Serjeant Hetley’s Reports informs us that he
HISTORY OF “THE LAW REPORTS.” 185

was one of the persons so appointed; the name of the other is not
known. Hetley’s single volume of Reports appears to have been the
only fruit which resulted from this attempt of Lord Bacon to reform
the Law, and these Reports were never held in much repute. The fact
thus remains for our guidance, and perhaps warning—that the only
attempt ever made in this country to appoint Official Reporters proved
a failure. The reasons of the failure we don’t know, and can only
now conjecture. I am quite ready, however, to admit that the circum-
stances which at the present day attend the administration of justice
in this country—the learning and integrity of the Bench, the learning
and independence of the Bar, the publicity of proceedings in all Courts
of Justice, and the influence of a free press,’afford securities against
chances of failure in an official system which did not exist 250 years ago,
when the former experiment was tried. Nor doI forget that in the
United States of America a system of appointing Official Reporters has
to a certain extent been adopted, as stated in the report of the sub-Com-
mittee. I have not, however, been able to satisfy myself whether the
American experience of the results of Official Reporting is such as to
lead us to fullow theirexample. In a letter which, in the early part of
the present year, I received from Mr. John William Wallace, of Phila-
delphia (the author of the valuable work entitled “The Reporters
Chronologically Arranged, with Occasional Remarks on their Respec-
tive Merits”), he says :—

Allow me to say to you, Sir, that the Bar of this country looks with interest
to the excellent efforts which are being made to improve the system of Reporting
in England. We have suffered as much, or even more, than you have, though
not exactly from the same causes—I mean with our Reports. Reference, I see,
is made to our system. England may possibly take some suggestions for good
from us; not, however, many.

I venture, therefore, to doubt whether, from our own experience in
times past, or from the experience of any other country in modern
times, and especially the experience of the American Republic, any
@ priori conclusions in favour of an official system can be derived. We
of the present day must, I believe, decide the question for ourselves
upon such materials as in the present day exist for our judgment.

The objections which weigh with me to an official system are of a
practical nature, and I will confine them to patronage and finance.

1. As to patronage. As an official system, accompanied by compen-
sation to existing interests, would supersede and become the substitute
for all the existing sets of Reports, it would have to supply the place
of what Lord St. Leonards, in his communication to the Committee
(and which has been recently published) calls the earlier and the later
report, as to which his Lordship adds—what I believe will be very
generally, if not universally, admitted—that the Profession would not
186 HISTORY OF “THE LAW REPORTS.”

now be willing to lose either. The same view of what the present
requirements of the Profession are, was taken by “The Law Times”
in the number of the 10th of October, 1863. In a leading article,
after adverting to the absurdity of half-a-dozen pens and as many
presses being engaged at the same time in noting and printing the
same cases, the Editor sensibly observes, “that one carefully prepared,
and therefore slowly produced, authorized report, and one speedy
report, the latter to be citable only until the case should be reported
in the regular report, is all that the profession wants.” This earlier
and later report must, therefore, I conceive, be provided for under
any system that professes entirely to supersede the present. The
patronage must extend to the appointment of a number sufficient to
ensure the efficient and punctual preparation and publication of the
double set. At present there are about 130 members of the Bar
engaged in reporting. Perhaps half the number would suffice under
an Official system. What would be the aggregate amount of salaries
to be paid? Would the salary be fixed with reference to the intrinsic
value of the labour and skill employed, and a chief Reporter be paid
after the rate of a chief Registrar? or would the salary be regulated
by the average rate of the salaries or profits now received by Re-
porters?—a serious question for probable candidates. Upon either
computation the annual amount would be considerable. The pro-
posal is that all this patronage should be vested in the holder of the
Great Seal. In whom else could it be vested? And is this patronage
to be exercised by the Lord Chancellor independently of, and without
the concurrence of, the presiding Judges of the respective Courts?
and are the appointments to be for life or during good behaviour, or
during pleasure, or for a specified term, with or without eligibility to
re-appointment? What effect, I would ask, would such appointments
have upon the independence of the Bar? Would not such a system
have a strong and direct {endency to induce subservience to the powers
that be, and impair all proper habits of self-reliance? One of the
advantages of the present system is, that the Reporters are among us
and of us. The instincts, habits, and feelings of the barrister are not
changed or weakened by becoming a Reporter. Under an official
system this would necessarily be otherwise. The sympathies of a
Reporter with his non-reporting brethren would be loosened, if not
destroyed ; his esprit de corps would be no longer the same ; he would
become a gentlemanly official, isolated, independent—among us still,
but no longer of us. In proportion as the independence of the Bar is
to be valued for the sake of itself and the public, so is the prejudicial
effect of a system of official appointments greatly to be feared. But
apart from considerations affecting the Bar, I doubt much whether
jealousy on the part of Parliament and the public would not present
HISTORY OF “THE LAW REPORTS.” 187

an insurmountable obstacle. Lord Brougham has recently borne his
testimony to the fact that jealousy of patronage has been a great
obstacle in the way of the appointment of public prosecutors (see re-
port ofa meeting of the Jurisprudence Depurtment of the Social Science
at York, on the 27th September, in “The Jurist” of the 8th of the
present month of October). And would not the ground of jealousy of
Government influence be at least as great in the case of Official
Reporters ?

But suppose all objections to patronage, whether political, profes-
sional, or judicial, to be surmounted, the difficulty of finance has to be
encountered. The proporal is, that the Government take upon itself
the compensation of ail existing interests, the payment of the salaries
of the Reporters, and sale of the Reports to the public at cost price.
First, as to compensation to existing interests. Ought the money of
the public to be applied to such a purpose? Mr. M. J. F. Brickdale,
one of the Conveyancing Counsel, in a printed communication which
he forwarded to the Committee, dealt with this question of compen-
sation in a manner which puts the case very clearly :—

I will add a few remarks on a question which has been touched on, but not
(as far as [am aware) much discussed or considered,—I mean the question of
the vested interests of the present Reporters and their publishers.

Legal claims, of course, they have none; but have they any moral claim to
compensation? I submit that, on principle, they have not; for on what
grounds has the monopoly of authenticity been granted to Barristers’ Reports ?
Surely on the ground that those Reports are made for the public benefit, and
for the furtherance of the cause of good Law. It cannot be supposed that such
a monopoly would ever have been granted to men who confessedly produced
Reports only as a profession, and for their own private benefit, either in money
or in reputation. The present body of Reporters, therefore, are availing them-
selves, for their own advantage, of a privilege which they would never have
obtained, if it had been supposed that it would be turned to such an account.

* # * # *

They found Reporting treated as a recognized profession, and took it up as
they found it; but for the reasons above given I contend that they have, on
principle, no claim to compensation; and if they have none neither can their
publishers have any.

Whether to avoid opposition, and out of consideration for hard cases (where
there is any hardship), and, I may add, out of respect for the high character of
the present Reporters as a body, it would be expedient to make compensation,
is another question. It should be remembered, however, that a considerable
number of the present Reporters might find employment under any new
system: and as the law publishers are limited in number, many, if not the
whole of them also might have an interest in the profits of whatever is pro-
duced.”

If there is no right {0 compensation, can it be believed that any
oO
188 HISTORY OF “THE LAW REPORTS.”

Government would be prevailed upon to apply to Parliament for
authority to raise money for such a purpose ?—or, if a Government
were weak enough to do so, that Parliament would ever sanction the
application !

And as to the salaries of the Reporters, why should public money
be permanently applied for such a purpose? There does not seem to
be a difference of opinion among those who are best acquainted with
the subject, but that, if a system were established under which the
Profession could have what they want and nothing more—Reports
prepared and published with accuracy, expedition, regularity, and
cheapness—the demand would be so large, uniform, and steady, that
they would be not only self-supporting, but leave an available surplus.
Why should public money be applied to support a system, which, if
properly conducted and managed, would support itself? Let those, I
say, whose interest and duty it is to inaugurate, and establish such a
system, co-operate for that purpose. It is well it should be known
what mischievous effects the present competitive system has bad, and
continues to have, upon the demand for Reports. Tle fact was brought
before the Committee that, notwithstanding the great increase in the
number of Barristers, Attorneys, and Solicitors, and notwithstanding
the increase also in the number of our tribunals both at home and abroad,
and our international relations with foreign countries, the demand for
Reports is not greater, ifit be so great, as it was thirty yearsago, In
the days of Barnewall and Cresswell, before competition had displaced
monopoly, the regular circulation of the Queen’s Bench Reports was
4000, occasionally more, and that of the Chancery Reports, 2000.
Now-a-days, with the exception of “The Law Journal,” circulation
must be reckoned by hundreds, not by thousands. The effect of com-
petition carried to its present excess, has been so to limit and dis-
courage the demand which naturally exists for Reports, that a great
proportion of the profits which would be derived from legitimately
supplying the profession and the public with what they require, are
not realised at all. Publishers and proprietors, by recklessly compet-
ing with each other in the establishment of rival Reports, may and do
reduce each other's profits to a minimum. The multiplicity of the
Reports has the effect of contracting the demand for them ; as all can-
not be taken, many practitioners refuse to take any. Is this a state
of things which would justify the application of a farthing of public
money? I think not. But it may be urged that, if the Government
undertakes the sale of the Reports, why should they sell at cost price ;
why not ata price which would be remunerative? and if such a demand
as is suggested really exists, funds would then be forthcoming to com-
pensate existing interests, and provide salaries for Reporters.
HISTORY OF “THE LAW REPORTS.” 189

This suggestion would involve the creation of a board of manage-
ment and the appointment of officers and dependents, which, I venture
to think, Government would be unwilling to undertake, but (be that
as it may) which had much better be left to those directly interested.

Upon either of the two rocks, Patronage and Finance, I venture to
think an official system would make shipwreck; and these practical
difficulties outweigh all theoretical objections, though these would not
be without their weight in the judgment of many.

I come now to the consideration of the scheme recommended by the
Committee. It is an attempt to give effect to the opinions of those
who desire an amendment of the present system, and that such amend-
ment should be based upon professional management and control, in
preference to a strictly official system.

The Report and Scheme are signed by fifteen out of the twenty-two
members who constituted the Committee. The seven who have not
signed are the Solicitor-General, Mr. Montague Smith, Mr. Mellish,
Mr. Denman, Mr. Joshua Williams, Mr. Sweet, and Mr. Henry
Matthews.

The Solicitor-General stated by letter that, having been prevented
by his official duties from attending any of the meetings of the Com-
mittee, he thought he ought not to take any part in either the Report
or Scheme. The reasons of the other gentlemen for not signing the
Report or concurring in the Scheme can be properly stated only by them-
selves; probably the objections of several will be found to turn upon
a preference for an official system, accompanied with compensation,
excepting, of course, Mr. Denman, who from the first, and through-
out, has maintained the inexpediency of any change in the present
system.

The Committee, in their Report, have abstained from discussing the
merits of the Scheme, nor do I propose to discuss them in detail ; but
Iam desirous of stating explicitly my own view of the principle of
the Scheme. and the object sought to be attained by it. My view of
the principle of the Scheme is this—it recognises the privilege of
Reporting for citation as authority as a privilege of the Bar, vested in
it for the public benefit, and that the exercise of this privilege by
individual members ought to be subject to such control as may be
necessary to secure the accomplishment of the public end for which
the privilege is conceded; that this control should be exercised by
an authority which will be interested to prescrve and uphold the
privilege in its integrity and independence, a control which had
better therefore be established within the limits of the Profession
itself, rather than externally by the Government or the Judicature ;
that the elements out of which the controlling power should be created

0 2
190 HISTORY OF “THE LAW REPORTS.”

should, as far as possible, be sought for and taken from the existing
institutions of the Profession; and that the powers to be given to the
controlling body should be exercised by them, as far as practicable,
in harmony with existing interests; that the controlling body should
have the qualities of permanence and periodical renovation, and its
members should individually have the stimulus of an active profes-
sional interest coinciding with the public interest. The Council of
Reporting proposed by the scheme satisfies, in my judgment, these
several conditions. There is no novelty in its design. The Council
of Education, composed of members of the four Inns, is an instance
that the Inns of Court recognise their duty to co-operate in a profes-
sional object for the public good, and, within proper limits, to apply
their funds for such an object. The Council of the Law Institution
again is an instance of a body of professional men who, animated
by zeal for the common interest of the Profession, superintend and
manage matters of the gravest professional importance in a manner
which the Profession and the public approve.

A further principle of the scheme is this—it is based upon the
co-operation and sustained confidence of the several branches of the
Profession ; the Judges, the Bar, and the body of general practitioners.
To this end it recognises the just limits of the judicial influence by
submitting the appointment of Reporters to the approval of the chief
or presiding Judge; it sustains while it controls the admitted privilege
of the Bar, and it embraces within its operation the body of general
practitioners as parties deeply interested in, and whose support is
essential to its success. Resting thus upon the co-operation and con-
fidence of the several branches of the profession as its basis, the
object which the scheme has in view, and which it seeks to accomplish
through the machinery of the proposed management, is to supply the
Profession with what they want, namely one set of Reports which shall
be prepared and published with expedition, regularity, and at mode-
rate cost, and from the accuracy and completeness of their execution,
become the standard authority of the Profession—that to which all,—
Judges, Advocates, Text Writers, Practitioners,—may refer uniformly
and with confidence. Such a set of Reports (if existing interests were
fairly and justly dealt with, as they must be) would absorb the present
sets of authorized Reports and also “The Law Journal;” and thus
supply the place of those later Reports to which Lord St. Leonards
refers, and become that one carefully prepared authorized report (and
when published the only report to be cited) to which “ The Law Times”
refers. The earlier report, as Lord St. Leonards calls it, or the speedier
report, as‘ The Law Times” calls it, would thus be left to be supplied
by competition ; unless experience should shew that the same system
HISTORY OF “THE LAW REPORTS.” 191

of professional management and control could, for the same annual
subscription, supply the earlier or speedier as well as the later or
carefully prepared authorized Reports.

Whether the object proposed by the scheme shall be accomplished
or not, depends upon the co-operation of the different branches of the
Profession—the Judges, the Bar, and the body of general practi-
tioners.

The scheme does not propose to establish a monopoly by autho-
rity: whatever extent of exclusive citation might follow from the
establishment of one standard set of Reports, would be the result of
professional choice and will, and these would continue only so long
as they were deserved ; and I think it may be taken for granted that,
so long as the Reports continued worthy of professional confidence,
that confidence would not be withdrawn.

But though the principle may be good and the object desirable,
there is a wide and difficult interval between merit and success. The
batteries of self-interest command the passage, and at this time are
well manned. How often have I been told the scheme cannot
succeed—the opposition of vested interests will prove too strong.
Adverting to the proceedings at the meeting of the 1st of July last,
it is said; see even the authorized Reporters, whom the scheme
proposes to propitiate, are opposed to it. Mr. W. M. Best, the senior
Reporter in the Queen’s Bench, will be supposed by the public to
represent the views of the authorized Reporters at the Common Law
Bar; Mr. A. E. Miller, the coadjutor of Mr. Hemming, will in like
manner be supposed to represent the views of the authorized Re-
porters in the Court of Chancery. I venture to doubt the accuracy
of these views. I have no reason to think that Mr. Best represents
the views of the Common Law Reporters, and I have reason to think
that Mr. Miller does not represent the views of some, at least, of the
Chancery Reporters. But if it is to be assumed that, to any im-
portant extent, the authorized Reporters would oppose the change
proposed, it will be well to see how they now stand toward the
Profession, viewing them as having undertaken the discharge of a
public duty.

Mr. Best moved, and Mr. Miller seconded, an amendment proposing
to strike out of the scheme all that related to the appointment of
Editors. Now, it will be observed that the authorized Reports are
the only set which have no Editors—“ The Law Journal,” “ The Jurist,”
“The Law Times,” ‘‘ The Weekly Reporter,” and “ The New Reports ”
have each their Editors. Practically, therefore, there is no difficulty
in obtaining the services of a number of able and accomplished
Barristers, willing to act under the control and supervision of
Editors ; and whatever objection may be taken to the multiplicity
192 HISTORY OF “THE LAW REPORTS.”

and multifariousness of the wn-authorized Reports, and the quantity
and quality of the matter reported, none can be taken to their cost,
none to the expedition or regularity of their publication.

Under a system of editorship, therefore, in all the existing sets
of Reports, other than the authorized, the Profession and public,
although burdened with the evils so graphically described by the
contributor to “The Saturday Review,” have at least the solid ad-
vantage of expedition and regularity in publication, combined with
moderate cost. I believe the whole five sets would not cost more
than £15 a year, while a complete set of the authorized Reports could
not be had much, if at all, under £30. Now how stands the case of
the authorized Reports in these matters of expedition, and regularity
of publication and cost. Mr. Best, in his address to the meeting,
says, in effect, we don’t want Editors, because I and my colleague
supervise each other’s labours, so that each acts as Editor to the
reports of the other; and we are the descendants of a long and
illustrious line of Reporters, who have always pursued the same
system. But this system of voluntary editorship does not help
towards either expedition or regularity of publication. I take the
last number now lying before me of Best and Smith’s Queen’s Bench
Reports, published on the 14th of September, 1864, part 2, vol. iv., of
cases argued and determined in Trinity Vacation and Michaelmas
Term, 1863. The reports of the cases argued and determined in the,
present year, 1864, are yet to come; for these the Profession must, for
an unknown period, depend upon “ The Law Journal” or one or other
of the weekly publications—so much for expedition. The same
number also states, “That these Reports are in continuation of those
by Ellis and Blackburn, Ellis, Blackburn and Ellis, and Ellis and
Ellis. The remaining portions of the latter are in preparation, and will
be completed with as little delay as possible.” I now turn to the last
number of Ellis and Ellis, thus referred to, and I find the part
contains the reports of cases argued and determined in Hilary Term
and Vacation, and Easter Term, 1860; and, though the date of
publication is not given on the face of the part, it was published,
as is well known, during the present year 1864; and as Best and
Smith’s Reports commence in Easter Term, 1861, the authorized
reports of decisions in the Queen’s Bench, from Easter Term, 1860, to
Easter Term, 1861, are yet unpublished. To the last number of
Ellis and Ellis is affixed the following notice: ‘In the composition of
Ellis and Ellis’ Reports, Mr. Francis Ellis continues to have the
valuable assistance of Fred. K. H. Cock, Esq., of the Inner Temple,
Barrister-at-Law.” So that the reports of Ellis and Ellis, when com-
pleted, will not be the reports of the very learned Reporters whose
names they bear. The lamented death of Mr. Ellis, leaving two years
HISTORY OF “THE LAW REPORTS.” 193

of reports in arrear, it will be said is the unfortunate cause of this
interruption in the regular publication of the series. Granted: but
are not such interruptions frequent in the series of authorized Reports?
and are they not the almost inevitable consequence of the system upon
which the authorized Reports are conducted? and, to the extent to
which authorized Reports are of any value, are they not injurious to
the Profession and to the law? Such interruptions and irregularities,
it is well known, are not confined to the Queen’s Bench Reports; the
system produces its evil fruits in the Court of Chancery. The fifth
volume of Russell’s Reports never has been, and I suppose now never
will be, completed. We have only during this summer of 1864, had
the eighth volume of De Gex, Macnaghten, and Gordon’s Reports
completed, bringing the reports of decisions in the Court of Appeal
in Chancery down to 1857; and the third volume of De Gex, Fisher
and Jones, which ought to contain the decisions in the Court of Appeal
in Chancery from the end of 1861 to Michaelmas Term, 1862, is yet
incomplete ; part 2, volume iii., of these Reports (bringing the de-
cisions down to December, 1861), was published May 5, 1863; and
the first number of the existing series of De Gex, Jones, and Smith,
published November, 1863, contains this notice: “The lamented
death of Mr. Fisher, and the time required for arranging and editing
his notes of the cases reported by him, have prevented the immediate
completion of the series of De Gex, Fisher and Jones’ Reports.” From
this note it would seem that the authorized Reporters in Chancery
have something of the same notion of editing their colleague’s labours
as Mr. Best.

These matters are not brought forward from any desire to make
invidious charges against anybody. They are exhibited as the
natural fruits of the system upon which the authorized Reports are at
present conducted, and appear to me to have a very close and direct
bearing upon the amendment of Mr. Best and Mr. Miller. Exclusive
of the Nisi Prius Reports there are, as stated in my former letter,
sixteen different sets of authorized Reports, and each of these sixteen
sets is prepared and published according to the convenience, views,
and interests of the sixteen different sets of gentlemen whose names
they bear, and their respective publishers. There is no community
of design, arrangement, management, or interest among them. Some
find it to their interest to be more expeditious and more regular than
others ; but all find it necessary, by reason of their very limited cir-
culation, to be costly. I have now lying before me the October
number of “ The Law Journal,” and I find the reports of cases in the
Courts of Chancery, Probate, Matrimonial, and Admiralty, are stated
to be from Michaelmas, 18638, to Michaelmas, 1864; each of the
three Common Law Courts, from Easter to Trinity Term, 1864, and
194 HISTORY OF “THE LAW REPORTS.”

the Magistrates Cases come down to the 4th of June, 1864. Now,
without instituting comparisons between the merits of different
Reports and Reporters, I venture to ask whether the intrinsic value
of the difference between the reports of decisions in the year 1864,
which the Profession now possesses in the columns of “ The Law
Journal,” and the reports of the same cases when they shall hereafter
be published by the authorized Reporters is to be measured, in favour
of the authorized Reports, by the difference in cost. Can the authorized
Reporters think that the superiority of their Reports over those of
“The Law Journal” is in proportion to the difference of cost? If
they do, perhaps the Profession would not agree with them.

If the authorized Reporters consider that the establishment of a
proper system of control and a combined management is inconsistent
with their separate interests and individual self-respect, be it so.
Should the scheme be adopted by the Bar, although the non-adhesion
of the authorized Reporters would be much to be lamented, I don’t
know that it would prove an insurmountable obstacle to success. The
Council might be able to get on without them; and, although it
would be matter of regret that Reports calling themselves authorized
should still continue to be published, it is obvious that a small pro-
portion of that professional support which would be necessary to
launch the scheme, would, if withdrawn from the authorized Reports,
cause their annihilation. But I hope, by the time the meeting is
held, it will be found that a more just and reasonable view will be
taken by the authorized Reporters than that which is insisted upon by
the amendment.

I have insisted that the present scheme rests for its foundation
upon the co-operation of all branches of the Profession. The contri-
butor to “The Saturday Review,” to whom I have before referred (see
the number for July 9th, 1864), has, in a vein of grim merriment,
referred to the scheme as an attempt to establish a Co-operative Law-
Store, without capital. As to capital, none surely ought to know
better than the contributor that, with an ample subscription list,
there is no need of capital. In the cases (and some are known to
exist) in which, under the present system of authorized Reports, the
Reporter is himself the owner of the Reports, and employs the
publisher, and not the publisher him, does the Reporter find any
capital? Notoriously not. Having an ascertained amount of circula-
tion (small though it be), yet, the price being high, a certain amount
of gross produce is got at; upon this a computation is made of the
cost of paper, plinting, advertising, and other expenses, and these
being deducted, an agreed sum is paid by the publishers to the
Reporter, the publisher taking all risks and finding all necessary
capital. What is thus done satisfactorily in a small way may, with
HISTORY OF “THE LAW REPORTS.” 195

equal satisfaction, be done in a large way. What can he effected
by a meagre circulation of 850 or 400 can surely be effected by a
subscription list of 2000. ‘The notion that there is a necessity for a
subscribed capital has suggested to several persons the idea of estab-
lishing a Joint-Stock Company, with a considerable nominal capital,
to be taken in shares with limited liability, But such a plan I con-
sider neither necessary nor desirable ; first, because, for the reasons IL
have stated, a subscribed capital is not needed ; and, secondly, because
if there were a share-capital, profits would have to be divided with
shareholders; the commercial element would then necessarily be
introduced, and a conflict of pecuniary interest would at once arise
between the Reporters and the company, a conflict which, in my
opinion, it is most desirable, in the interest both of the Reporters and
the public, to avoid ; and, thirdly and chiefly, because, in my opinion,
whatever profits may remain after payment of the costs of printing,
publication, and management, liberal remuneration to Reporters, and
such compensation (if any) as may be proper to be granted, ought not
be applied to the purposes of private gain; but, as the profits are
really moneys derived from that portion of the Profession and the
public who are obliged to purchase reports for the purpose of their
calling, and not their private pleasure or advantage, these profits thus
savouring of involuntary contributions by the public, ought to be
applied to some public object connected with the interests of the
Profession and the advancement of the Law. I may observe, how-
ever, that it has often been matter of surprise to me that the parties
who are now interested as Reporters, publishers, and proprietors, in
the existing sets of Reports, knowing, as they so well do, what it is
that the public and Profession want, and how profitable it would be
to supply it, have not been able to agree to make arrangements
among themselves for the purpose of supplying one standard set of
Reports. Such an arrangement is not now hinted at for the first
time; but I fear that the inevitable rivalries and jealousies of trade,
and the difficulties of adjusting the several proportions of interest and
advantage, present an insurmountable obstacle to a course being
adopted which prudence and a shrewd fore-ight would point out as
at once practicable and desirable for parties whose interests in the
present state of things might be prejndiced by an eutire change of
system. But why should not the fully of individuals help to the
public good ?

And as to invoking the principle of co-operation. Now that the
contributor has had a Long Vacation enjoyment of his drollery, I
would ask him in seriousness whether the co-operative principle is
not, according to well-tried experience, the best corrective of the evils
of competition carried to excess. Excessive competition so diminishes
196 HISTORY OF “THE LAW REPORTS.”

legitimate profits that adulteration is resorted to, and when the
working man finds that the necessaries of life, though cheapened in
price are deteriorated in quality—when he finds sloe leaves in his tea,
sand in his sugar, lard in his butter, and his milk half water or worse,
what does he do to rid himself of these evils? He co-operates with
his brother consumers to procure the articles he wants at first hand
and at cost price, and thus gets rid of the middle men and their
oppressions together. The parallelism need not be dwelt upon.

An objection has been taken by Mr. Joshua Williams to the scheme
of the Committee which I think it desirable to notice. He thinks
that the proposed machinery of a Council of Management, to be
incorporated by charter, with powers confirmed by Act of Parliament,
is too important for the purposes proposed to be accomplished. But
are not these purposes very important? The several Courts of
Justice may be regarded as living fountains, from whence daily and
hourly well forth those tributary streams which, conjoined, make up
the current of the Law. Is it not of the greatest importance that
these should be drawn as pure as possible from the fountain-head? Is
it a quixotic or too sanguine an expectation to anticipate that, when
the process of digesting our law shall be entered upon in earnest (and
in the present lull of party strife the thoughts of many of our public
men seemed to be seriously turned towards that object), it will be
found that a well-arranged system of reporting is an essential adjunct?
Might not a Minister of Justice, to whose appointment Mr. Williams
looks forward with hopeful interest, find such a system a useful
auxiliary to his labours? May it not be expected that in the Annual
Report and Statement, which it is proposed the Council should
publish, the Profession and public would find a careful exposition of
matters connected with the administration of Justice—such as, in-
consistent and incongruous decisions, anomalies and inconveniences in
the law, defects in existing legislation,—which would materially
assist a Minister of Justice in the discharge of his important duties,
and facilitate the amendment of the law and the improvement of our
jurisprudence? I am sanguine enough to believe that the successful
establishment of a sound system of reporting, controlled and managed
by the Profession, may be worthy of the encouragement of the Govern-
ment and the Legislature, and be productive of results of the highest
benefit to the public.

If, Sir, you have spared time to read what I have written, I feel I
must have trespassed very long upon your patience, and will at once
conclude, subscribing myself, with profound respect,

Your obedient humble servant,

W. T.S. Danie.
10, Orp Buripines, Linconn’s Inn,

29th October, 1864.
HISTORY OF “THE LAW REPORTS.” 197

This letter was largely circulated among the Profession, and,
to some extent, among the public. I sent a copy to the Attorney-
General, and he shortly afterwards fixed the 28th of November,
being the third day after the end of Michaelmas Term, for the
further meeting, to be held in Lincoln’s Inn Hall at 4. p.m. Due
notice was given of the meeting, and it was numerously attended.
Jt had been arranged that Mr. Amphlett, as Chairman of the
Committee, should attend and renew the motion for the adoption
of the Bar Scheme; but on the 27th of November, the day before
the meeting, a death occurred in Mr. Amphlett’s family which
would prevent his attendance, and he requested me to supply his
place, which I agreed to do; and these circumstances were at
once communicated to the Attorney-General. The meeting was
accordingly held, and the following is a transcript of Mr. Tolcher’s
shorthand notes of all the proceedings of the meeting. These I
have thought desirable to give at length, as furnishing the most
satisfactory record of this important meeting.

Lincorn’s Inn Hatt: Monday, November 28, 1864.

REPORT OF PROCEEDINGS AT ADJOURNED MEETING OF
THE BAR

To take into consideration the Scheme of Reporting recommended by the
Committee appointed on the 2nd of December, 1863.

The Arrorney-GENERAL (Sir Roundell Palmer) in the Chair.
(Transcript of Mr. Toucuer’s Shorthand Notes.]

The Cuairman :—Gentlemen, it is necessary for me to remind you,
in a very few words, of the cause of the assembling of this meeting.
Every one present is probably aware, that on the 2nd of December in
last year a meeting of the Bar was held on a requisition which had
been presented to me very numerously signed by members of the Bar,
in all branches of that Profession, requesting that such a meeting
should be summoned. Well, at that meeting a Committee was
appointed to prepare a plan for the amendment of the present system
of preparing, editing and publishing Law Reports. That Committee
consisted of gentlemen very much respected and very eminent in all
branches of the Profession, both of the rank of Queen’s Counsel and
below the Bar, and they very carefully considered the subject and
reported on the 14th of June, 1864. Their report and recommenda-
tions have been largely and extensively circulated, and, no doubt by
this time have been very generally considered. It was felt proper,
198 HISTORY OF “THE LAW REPORTS.”

that, they having done that, before the Long Vacation, the Bar should
have the opportunity of meeting again and considering whether the
subject was ripe for action or not. Accordingly, a meeting was held
here on the Ist of July last, and then Mr. Amphlett, who I regret to
say is not able to be here to-day on account of a domestic calamity,
moved the adoption of the recommendations of the Committee. That
motion was seconded; and Mr. Best and Mr. Miller moved and
seconded an amendment to omit that part of the recommendations
which related to the supervision of Editors ; but before those subjects
were further considered, Mr. Wordsworth moved, and Mr. Malins
seconded, an amendment which superseded both those motions,
“That the further consideration of the subject should be postponed
till a day to be fixed by the Attorney-General in the month of
November next,” that is the present month. No option was left to
me but to appoint a day which should be—I will not say the most
convenient but—the least inconvenient to the Bar after Term for the
further consideration of the subject. That I have done, we meet
here to-day, and I am quite sure that all the observations that will be
made on this important subject by any gentleman who may address
you will receive a fair, candid and dispassionate consideration.
[Hear ! hear !| Gentlemen, I now call on Mr. Daniel, who will renew
the motion that was made by Mr. Amphlett at the former meeting.
[ Cheers. |

Mr. DanteL :—Mr. Attorney-General and Gentlemen. The com-
munication which I received this morning from my learned friend
Mr. Amphlett of the loss which he sustained in his family only
yesterday has cast upon me a duty which I was not prepared to
undertake, and which I had not expected I should have had to dis-
charge. Nor was it until I received just now an intimation from the
Attorney-General that he considered the adjournment which had
been carried on the motion of Mr. Wordsworth in fact displaced
the original motion and the amendment of Mr. Best and Mr. Miller
upon it, that I was aware there would be any necessity for me to
move again the original resolution. I, therefore, do so now under
the circumstances I have explained.

Gentlemen, there has been circulated by me what, I hope, if it has
been read, will not have been otherwise than acceptable to my pro-
fessional brethren, a careful shorthand note of what took place on
the former occasion ; and therefore I do not intend to repeat what was
then said. I will assume that this meeting is in possession of what
tuok place at the meeting on the Ist of July last, and the grounds on
which my friend Mr. Amphlett proposed the adoption of the Report.

Gentlemen, I will take this opportunity of entering into certain
particulars connected with the scheme which I understand have been
HISTORY OF “THE LAW REPORTS.” 199

mide matter of question. The principle upon which the scheme
recommended by the Committee is based is this, that there should be
established, if possible, under professional control, without the inter-
position of external authority, one set of Standard Reports, which
should be prepared with such cire and skill, published with such
regularity, and at such a moderate cost, as to command the confidence
of the Profession. I do not know whether those present think that
that is a desirable object, but that is the object which the Committee
had in view in their recommendations. [Hear ! hear !] I do not
intend to go over the old grounds about the evils of the present
system. I neither desire to enlarge upon them nor to do otherwise
than allude to them upon the supposition that they are present to
your minds. Now if such a set of Standard Reports could be estab-
lished, I apprehend there are very few of the reflecting members of
the Profession who would not think it a great advantage. In the
scheme which the Committee here recommended they have endeavoured
to devise a practical remedy for a practical grievance. They con-
sidered that the duty which you had devolved upon them was one
which called on them to look into the matter as men of business and
not in any other light. We were not appointed as Law Reformers to
entertain projects for the reform of matters of Law, but to devise, if we
could, a better system of preparing, editing and publishing Law
Reports than that which existed. With that view, the Committee
endeavoured to direct themselves to the consideration of this question
—upon what footing, looking at it in a commercial point of view,
could a scheme be based which was likely to be self-supporting. The
Committee having obtained from their professional brethren their
views as to the desirableness of a change, but not having the advan-
tage, to the extent they would have desired, of obtaining information
from parties interested, but of that they could not complain because
parties interested were not likely to give information on matters that
would affect their own interests—the Committee were able to
ascertain what was the circulation of the authorized Reports previous
to the commencement of the present system of competition. The
Committee went back to the time of Barnewall and Cresswell, and
Merivale, and Jacob and Walker—the years 1824 and 1825, The
system of competition did not begin until the year 1832 or 1833,
They ascertained from sources of the authenticity of which they
were perfectly satisfied, and which has been confirmed in various
quarters since, and can be confirmed I daresay by gentlemen in this
Hall, that the regular issue of the Queen’s Bench Reports in the
years 1824 and 1825, and up to the end of the time of Barnewall and
Cresswell, which was in 1829 or 1830, was 4000, and that the regular
issue of the Chancery Reports during the same period was 2000.
200 HISTORY OF “THE LAW REPORTS.”

Then, resting upon the fact of 2000, which was the smallest amount
of the circulation forty years ago, the Committee endeavoured to
ascertain, whether, on that small circulation, a scheme could be
devised which, commercially speaking, would be self-supporting, at a
subscription of five guineas per annum. For that purpose the Com-
mittee endeavoured, through several of its members, to obtain informa-
tion from those who were competent to give it. I endeavoured to
obtain such information, and I was enabled to obtain it through
application to a printing firm in extensive business, strangers to
me, but introduced to me by my friend Mr. Cole—Messrs. Clowes of
Duke Street, Stamford Street. 1 requested them to furnish me with
the cost price of a set of Reports (and I purposely selected one of the
most expensive of the present authorized Reports), taking a part of
Mr. Clark’s House of Lords Reports, a part which is charged to the
Profession at 12s. 6d. I requested them to give me an estimate of
what was the cost of printing, paper, sale, and distribution of such a
part, excluding from calculation the publisher’s commission and all
proprietor’s profits. The result was, a set of figures (I do not propose
to trouble you with reading the figures in detail unless desired)
which resulted in the cost per copy, which was the datum on which
the Committee proceeded, and which was this—if 500 of this 12s. 6d.
part were printed, 1s. 104d.; if 1000, 1s. 44d.; if 2000, 1s. 1d.; if
3000, 114}d.; if 4000, 103d.; if 5000, 104d. [Loud Cheers.| These
figures seemed to me so striking, that, if true, I could not avoid
coming to the conclusion that there was a radical defect in our
present system as regards consumers, and a radical defect also in our
present system as regards Reporters; for if the actual cost of a
12s. 6d. part, of which 2000 were supplied, would be 1s. 1d., there
must he something wrong somewhere. Ishewed this to a gentleman,
who perhaps may be present now, Mr. Hemming, and he very properly
pointed out to me that it omitted all allowance for correcting the
press. [Hear! hear!] My friend Mr. Lindley obtained data, not
exactly in this form, but pointed to the same object, from another
firm of printers, whose name I am not at liberty to mention unless
he tells me I may do so, but in an equally large way of business.
There the item for correcting the press was inserted and was equal
to the cost of composing, that is, the same sum was allowed for
correcting the press as was charged for setting up the type originally.
It occurred to me that that could not be right. It may be that,
under the present system of unedited authorized Reports, manuscripts
may find their way to the printer in such a shape as that the cost of
correction would require a sum to be expended equal to the cost of
composition ; but that could hardly be the case with regard to any
work which was superintended by careful Editors and supervised by
HISTORY OF “THE LAW REPORTS.” 201

those who had an interest in keeping down the expense. [Hear /
hear !] THowever, in the data which I laid before the Committee I
did not overlook that allowance for correcting the press, but intro-
duced 75 per cent. of the amount. I converted Mr. Clowes’ 104d.
into 11d.—in short, I added 75 per cent., or three-fourths of the
amount of the original composition, for the correction of the press,
and I believe from discussions which I have had with parties con-
versant with this matter that that is admitted to be a very ample
allowance.

Now, Gentlemen, upon these data the Committee proceeded to make
their calculations. With the correction made by the insertion of the
item to which I have referred, the data supplied by Mr. Lindley’s
printer coincided with that supplied by Messrs. Clowes. They corre-
sponded also substantially with information given to the Committee by
Mr. De Longueville Giffard, who was good enough to state to us every
thing that he considered could be of use with reference to those matters
of detail with which he was cognizant—they coincided with his
results. They coincided also, substantially, with the results that
have been before the Profession in the Reports of the Law Amendment
Society, published in the years 1849 and 1853. We considered our-
selves, therefore, safe in acting on those data. Following those data
the Report proceeds upon the assumption of allowing to the Reporters
whose employment is suggested, salaries equal in the aggregate to
£10,700, and it proposed that the first moiety of those salaries, £5350,
should be guaranteed. The Report by way, as it appeared to me and
appears still, of abundant caution, suggested that the first moiety
should be guaranteed out of the Consolidated Fund or the Suitors’
Fund. Individually, speaking for myself only, I have no desire what-
ever that such a source should be resorted to [Hear / hear!] I do not
think it necessary, and I doubt whether it would be granted if asked
for [Hear ! hear!] The Committee however, proposed, in paragraph 28
of their scheme, “In case payment of the first moiety of the salaries
shall not be obtained out of the Consolidated or Suitors’ Fund, it shall
be made a term of the contract with the publishers or printers that
they shall pay such moiety by quarterly payments, and be reimbursed
the same out of the proceeds of the sale of Reports as hereinafter
mentioned.” Omitting therefore, the proposed guarantee, the pro-
posal was, that a printer or publisher should be found, if he could be,
who would guarantee the first moiety of the Reporters’ salaries upon
the faith of a subscription of 2000 at five guineas a year. I understand
that this has been represented as an idle and unbusinesslike suggestion,
that no substantial man of business would undertake such a liability
and duty, and only so late as last Friday I was challenged to produce
the data upon which the Committee had proceeded. In order that
202 HISTORY OF “THE LAW REPORTS.”

their accuracy might be further tested by one of ourselves, Mr. West-
lake, whose competency to go through such a sum of arithmetic I
believe you will all admit, went through the figures, and with no
inconsiderable satisfaction to himself, for he had taken them on the
credit of Mr. Lindley and myself, found our results were rather under-
than overstated in favour of the practicability of the scheme. I wag
not, however, satisfied with that; but on Saturday I went over, with
this Report and Scheme bodily in my hand, to Mr. Clowes at his
counting-house in Duke Street, because it is better to discuss these
matters in the counting-house of a man of business than in the
chambers of a speculative Barrister, and, putting this document into
his hand, I asked him to take it and read it and return his answer
to this question which I appended: “ Assuming that the Reports in
each year would be comprised in eight octavo volumes of 800 pages
each, in your opinion is the scheme one which, in a commercial point
of view, a mere publisher or printer of sufficient capital would
contract to carry into effect without any capital being supplied from
any other quarter or any guarantee out of the Consolidated or Suitors’
Fund being given?” The answer which he brought to me this
morning was this: “I would rather not give you a speculative
opinion, I will give you this. We are quite willing to undertake it
on the above conditions.” ([Cheers.] Adding this, on my asking his
leave to mention his name, “‘ Certainly, but do not let it be supposed
that we are tendering for such a thing, you ask me my opinion as a
commercial man and as such I give it you, and I should be surprised
if any printer with sufficient capital would not return you the same
answer.” [Cheers.]

Now, Gentlemen, so far as the commercial question is concerned, I
venture to think that gentlemen who will pay attention to the sub-
ject, and not be led away by the notion that there must be thirty-five
per cent. for publishers’ commission, and that there must be large pro-
prietors’ profits to be realised—if gentlemen will dispossess their minds
of those notions, they will find that the actual cost of one good set of
Standard Reports, making up eight volumes per annum, can be had
upon a subscription of 2000 at five guineas per annum. [Cheers.]
A circulation of 2000 being the circulation which, before competition
began, was the actual circulation of the Chancery Reports in this
country. And when we consider the enormous increase, during the
last forty years, of members of the Profession—when we consider the
vast extent of those portions of the globe in which the British Law
is administered and required to be known—when we consider the
extent to which, by virtue of international copyright, British Law
can be spread over the Continent, I think we are not in the clouds
when we suggest that a good standard set of Reports upon a subscrip-
HISTORY OF “THE LAW REPORTS.” 203

tion of 2000 at five guineas per annum will be self-supporting. [Loud
cheers. |

Gentlemen, I will trouble you only with one further observation
with reference to the quantity to be printed. I have assumed that
eight volumes will be printed per annum. I believe in that there is
an error, but an error on the side of excess, because one of the
conditions of the system suggested would be, that there should be
proper judgment exercised in the selection of cases to be reported,
which would considerably reduce the number. There would also be
proper judgment exercised in the preparation of cases, which would
considerably reduce their bulk. (Hear! hear!) There would be no
temptation to report cases simply because they have been decided in
Courts of Justice. The object would be to publish cases which
illustrate the Law. There would be no temptation to lengthen
reports of cases by copying pleadings and extracting evidence. The
object would be, to make a condensed statement of the material facts,
and of the arguments, and of the judgment of the Court upon those
facts and arguments. By these means, I believe, there would be very
great diminution in the bulk of Reports. I do not know whether
gentlemen are aware of what the number of printed volumes per
annum the authorized Reports now amount to. There are about
sixty parts published, or ought to be published, in the course of every
year. Taking the average of these, they would make about twelve
volumes. I have estimated eight, or two-thirds. In taking this amount,
Ihave not taken an arbitrary proportion. In the paper which was
laid before the Committee by Mr. Hemming, one of the most valuable
papers the Committee had to consider—and I beg leave to tell him in
the presence of his brethren that I do not know any man whose
opinion is entitled to more weight than his—he, rather speaking of
the vast quantity of useless Reports now published, intimated that
the pith might be brought into a tenth part of the present bulk. I
take that as a rhetorical expression, and that it means a very sub-
stantial diminution. In the paper circulated on Saturday and to-day
by Mr. George Sweet, who is also eminently competent to speak to
matters of detail of this nature, he suggests that the bulk might be
reduced one half. I have taken one-third, and I believe in taking
that proportion, I have taken an amount which, upon consideration,
will be found to be liberal, as affecting the commercial element of
the question ; and that it is safe to assume that the quantity of printed
matter will not exceed that which will go into eight printed volumes
of 800 pages per annum.

Gentlemen, I have entered into these details thinking that they
might be usefully stated, and because I am sure there was nothing
before the Committee which the Committee would not be anxious

Pr
204 HISTORY OF “THE LAW REPORTS.”

should be before you. They have no interest whatever in the
question any more than I have. The Committee as a body and
individually have no feeling in the matter beyond a desire to effect, if
they can, by professional co-operation, an important change in our
present system of Law Reporting which should result for the benefit of
the public. [Hear! hear!| Personal interest they cannot have—
beyond this, that you should be satisfied their recommendations have
not been made without sufficient grounds for doing so, and that you
have not been troubled to meet here twice until after great labour had
been bestowed upon the subject; and this having been done in your
service, they cannot feel (whatever the result of this meeting may be)
that it has been otherwise than wellexpended. [Loud cheers.| With
these observations, I move that the Report of the Committee be
adopted.

Mr. Dickinson :—I shall not trouble the meeting with any observa-
tions, but simply say that I second Mr. Daniel’s motion.

The Cuarrman then rose to put the question.

Mr. W. M. Bzstr:—I wish to ask one question upon a point of order.
Is this meeting a continuation of the last meeting? Is it a new
meeting or an adjourned meeting ?

The Cuainman:—The answer which I have to give to Mr. Best’s
question is this, that it is, in a practical sense, a continuation of the
last meeting. Technically, I thought the form of the motion carried
at the last meeting made it improper for me to assume that the
meeting would be disposed to treat the motion moved and seconded
for the adoption of the Report at the last meeting as still pending,
the form of the resolution carried, on which the adjournment took
place, being, not that the further consideration of this motion be
adjourned, but “that the further consideration of this subject be
postponed until a day to be hereafter fixed.” Therefore as a matter
of form it appeared to me it would be proper there should be an
independent motion made again to the meeting. That has now been
made by Mr. Daniel and seconded by Mr. Dickinson. It is the same
motion that was made before,— That the Report of the Committee be
adopted.”

Mr. Best :—Then, Sir, upon that principle, as I had the honour at
the last meeting to move an amendment (which I was under the
impression would be submitted to this meeting) I must move it again,
if you will allow me.

The Cuainman :—Certainly.

Mr. Besr :—Gentlemen, I am under the necessity now of moving
again the amendment which I had the honour of submitting on the
lost occasion, and I shall do s0 at less length, because I presume
(perhaps improperly) that some of you heard my former observations.
HISTORY OF “THE LAW REPORTS.” 205

There are many matters of detail into which I shall not enter; and
indeed with respect to the general scheme recommended by the
Committee I beg to offer no judgment, except on one portion—that
which relates to the appointment of Editors. This Scheme, in Article 5,
says: ‘“ The Reports shall be prepared by Reporters under the super-
vision of Editors.” I beg to move the omission of the words ‘“ under
the supervision of Editors,” and to make corresponding alterations in
the other rules with regard to that subject. That was the amendment
which I moved on the last occasion, and which I repeat now. My
objection to the supervision of Editors is this, that we are left in a
state of total darkness as to what the duties of these Editors are to be.
In another part of the Report we find that the Council are to deter-
mine that, and we are told that it is a matter of detail. I affirm it is
nothing of the sort. It is a matter of principle. There are different
kinds of Editors. Is the Editor to perform the functions of a reader of
the press and to revise the authorities? If that is what is meant
there cannot be a shadow of objection, except that it is proposed to
give such Editor a salary of £600 a year for work which an intelligent
clerk would do quite as well. But if it is meant that the Editor is to
have a power of supervision and control over the Reports—that he is
to have the power of striking out any case, or any portion of any case, or
any expression of a Judge, or any statement that is not pleasing to him-
self or the powers that be—if that is to be the power to be conferred on
him, I say that a more direct attack on the independence of the Reporter
itis impossible to imagine. ([Cheers.] That evil is great enough but
it is not the worst. The worst is behind. But first let me observe
one thing. In this country Reports are of greater importance than
they are in any other, and that is one reason, among others, which
makes all reference to the laws of foreign countries quite inapplicable
here. On the continent of Europe a report is of no authority beyond
what the Judge chooses to give it. A French Judge, for instance, not
only has a right to take up the Code Napoléon, and construe it himself,
and if 10,000 authorities are cited against his view, to say, “I care
not for them, I put my own construction upon the Code,” but the
French law imperatively commands him to do this. A French J udge
dares not say what an English Judge often says: “ If this were res
integra I should decide in such a way, but I am bound by authority,”
because the decisions of English Judges are binding upon their
successors, and are part of the Common Law of England, but the
decisions of French Judges are not part of the law of France. A
great portion of the law of this country is in the Reports, and it has
been so for 500 years. I daresay it will be overset some day, but that
is not done yet; and until it is so, no legitimate comparison can be
drawn between the law of France or of Germany and the Law of
e 2
206 HISTORY OF “THE LAW REPORTS.”

England. (Hear! hear!) I propound nothing that is new, but stand
upon what is old; when our system is proved to demonstration to
be wrong, you may set it right, but under it as it stands the
Reporter must be independent. Independent he cannot be if he is
to have appointed over him an Editor of such a character as I have
described. [Cheers.| The Committee, in their original Report, do
not define the duties of the proposed Editors. The subject was called
to their attention by myself four or five months ago at our last
meeting here, but there has been no alteration in the Scheme, and not
one of the Committee will tell us what the Editors are to do, whether
they are to interfere with the independence of the Reporters or not.
But now I come to what is the worst of all. As matters now stand,
if a report is wrong, the Judge, the Profession, and the public hold
somebody responsible for the mischief, and we know who is responsible,
because the Reporter’s name is attached tothe report. But if such an
Editor as I have just described is appointed, who is to be responsible?
The Reporter? The Reporter would say, “I sent my report to the
Editor who is placed over me, with an absolute and uncontrolled power,
without appeal, of striking out what he thinks proper; I disclaim all
responsibility.’ Then if you speak to the Editor, he would say, “ My
name is not to the report, I am not responsible for it, I am only a
supervisor,” and you would have all the evils of divided responsibility
—it would be impossible to tell who was to blame, and of course there
would be no such thing as real responsibility at all. I will not
suggest the possibility of undue influence being brought to bear on
the mind of the Reporter, but there is the double chance of its presence
where there is an Editor. At present, you have only got one way of
exercising undue influence, and one that I am happy to say is seldom
or ever resorted to, namely, acting on the mind of the Reporter, but
under the proposed system there would be two minds that might be
influenced. For these reasons, at the last meeting, as now, I took the
liberty of proposing to omit the words I have referred to. I do not
wish to make any observations on the Scheme in general, still less to
trouble the meeting with what I dwelt upon before, the plan pursued
with regard to the Queen’s Bench Reports—the system of mutual
supervision—by which the unemployed Reporter discharges the
function of an Editor—the useful function of an Editer—without
danger. J explained that to the former meeting, and do not wish to
go through it again. Suffice it to say, that in the regular Reports of
that Court there are two Reporters. I do not claim the merit of the
system for myself or my colleague,—we found it in operation, took
it as we found it, and followed it. The Reporter who is not on duty
acts as Editor to the Reporter who is. The Reporter who makes the
report of the case sends it in type to his colleague (but those sug-
HISTORY OF “THE LAW REPORTS.” 207

gestions are only in the shape of friendly advice), the colleague revises
all the authorities and performs the function of reader of the press,
and makes any suggestions in pencil that he thinks desirable, and the
Reporter who made the report adopts them or not, as he sees fit. I
do not say that the same thing is done with the other regular Reports,
for I do not know; but it is the system which we pursue; and I took
the liberty of suggesting to the last meeting that, so far as we were
concerned,this proposed scheme of editorship was not only mischievous,
but unnecessary. While I do not wish to say anything about the
Report of the Committee in general, still less am I going to enter
into Mr. Daniel’s figures; but I cannot help thinking it would have
been a shade better, and a little more fair, ifthe gentlemen composing
this meeting had had some previous information given them of the
figures that have been brought before us now. I have heard for
the first time this calculation about my friend Mr, Charles Clark’s
Reports in the House of Lords. I must avow my utter incapacity, I
will not say of understanding it, but of following or testing it. I
think that some means ought to have been afforded the Profession at
all events to test those figures about the 10d. and the 1s. 1d., all I will
now say is, that I suspend my belief in them. [Laughter.]} Any
gentlemen that likes to believe them to the letter, can do so, but I am
sure that some fallacy in that calculation will be discovered. There
is, however, one figure that I wish Mr. Daniel had given us, and
which relates toa matter to which I very much regret our Chairman
did not allude. At the conclusion of the last meeting Mr. Manisty
made a proposal which I thought a very good one. [A voice at the
end of the hal?: “We cannot hear a word.”| I am sorry that gentle-
man does not hear me, there is some noise. Do you hear me now,
Sir? [Great laughter.] I can talk louder if required. [Renewed
laughter.| I was saying, at the last meeting, as soon as the adjourn-
ment was carried, Mr. Manisty proposed that those gentlemen who
were willing to subscribe to raise this sum of £5000 should have the
goodness between the last meeting and the present to send in their
names. I listened to Mr. Daniel’s speech very anxiously to hear the
result of that. [Loud cries of “hear ! hear!” |] Theresultis, zero. At
any rate, no information has been afforded. There may be a satis-
factory answer, but none has been given; and how it would be pos-
sible to set this scheme afloat without a large number of names con-
tributing to raise the £5000, I do not understand. With that excep-
tion, I do not desire to make any further observations on the subject.
[Hear ! hear !] I am sorry to have taken up your time, but I must
conclude by moving the amendment.
The Cuarrman :—Who secondsit? Mr. Miller seconded it before.
Mr. Atmaric Rumsey :—I will second it, Sir.
208 HISTORY OF “THE LAW REPORTS.”

The Cuarrman :—The amendment moved and seconded is, that the
words in Rule 5, ‘under the supervision of Editors” be omitted, and
that corresponding alterations be made in the other rules.

The Hon. Grorce Denman :—Mr. Attorney-General, having been
most reluctantly, as far as I was concerned, placed on this Committee,
and having attended a great number of its meetings, I wish to state
my reasons for dissenting from the scheme which the Committee have
proposed. [Hear ! hear!) It is not at all on the ground suggested by
my learned friend Mr. Best, nor upon any ground affecting thé
scheme so far as the feasibility of it, in point of money, is concerned.
I must candidly confess that I have not carefully gone into that part
of the subject ; and so far from desiring to criticise the scheme on
any such grounds as my learned friend Mr. Daniel has noticed, all
the members of the Committee will bear me out when I say, that I
gave the scheme every possible assistance in my power, so far as
pointing out any objections to the details were concerned, in order to
give my brother Committee-men an opportunity of carrying the
scheme, if they could do so. My friend Mr. Daniel assents to that.
So far as it is objectionable on general and broad principles, which I
think it is—[Hear ! hear !|—I will state very shortly the grounds on
which I think it is objectionable. The scheme proposed by Mr.
Daniel depends for its success upon a minimum circulation of a very
large amount. I think he puts it at about 2000 copies. It must,
therefore, in order to be a very successful thing, have a large circula-
tion. This scheme must either succeed or it must fail. I conceive
that the principal objection to the present system, if it be called a
system, and which is very much to be dreaded is, that we are liable,
every now and then, to have a break in continuity, that we are liable
to have good Reports knocked on the head for the want of sufficient
support, and that we are liable to have one set of Reports clash with
another. No doubt, a break in Reports, which destroys the continuity
of a set of Reports, is altogether very undesirable. Now, if this
scheme should fail, you would of course add seriously to that sort of
inconvenience, and you would introduce into the Profession, for the
use of the Profession, an illusory guide which will turn out to be
an evil—a fresh set of Reports, which would only live for a time,
which might appear to be very flourishing, and perhaps flourishing
enough to drive out of the field some other Reports exceedingly good,
and you would get nothing at all good in return. That would be
the case if they are not successful. On the other hand, if these
Reports are to succeed, it seems to me to be assumed that they are to
succeed by creating, though not a theoretical, yet an actual and prac-
tical monopoly. [Hear! hear!| Now, I believe that they could only
succeed by creating a virtual monopoly; and the moment they did
HISTORY OF “THE LAW REPORTS.” 209

succeed by creating that monopoly, being patronised and petted by
the Profession, with a staff of their own to keep them up, I am quite
sure the moment that scheme is once so successful as to create that
practical monopoly, the Reports would very soon become practically
useless. [Hear! hear !| And, if they became useless on that ground
then we should have a very much greater evil than we should have
had if they had not been successful, we should have lost all the good
Reports now in existence (and there are several), and we should have
nothing in exchange but monopoly, which it would require fresh evil
from competition in order to supplant, and ultimately to become as suc-
cessful as those we have at present. I may be wrong, but that is the
view I take; and J think that, practically, that would be the result.
And that is the view which has always prevented me from feeling
sanguine that we could do anything to amend such evils, if they
exist. But I cannot help saying a few words as to the evils them-
selves. Mr. Daniel has glibly assumed that the evils are so great
that it is necessary we should have some gigantic scheme, such as this
Joint Stock Company of the Bar, to put an end to it. [Mr. Daniel:
Hear! hear !| I believe I am here speaking in the presence of an
assembly consisting mainly (as they always will be in this Hall) of
Chancery practitioners. Although the whole Bar may be summoned,
I think this meeting consists principally of members of the Chancery
Bar. [Cries of “No! no!” and “hear! hear !”| I may be wrong, but
my notion is, that, if this meeting were polled, two-thirds of those
present would be found to be members of the Chancery Bar. Now, I
want to put it to gentlemen of the Chancery Bar to do to others as
they would be done by, and to take care that they do not, by attend-
ing this meeting, impose on the whole Profession a great scheme that
would be doing a mischief to the other branches of the Profession,
though possibly it would be of some service to them. I believe that
the two cases of the Common Law Bar and the Chancery Bar are
totally different. In the cases reported in Chancery, where the law
and the facts are all mixed up, and where the Judge has to deliver a
long judgment, first eliminating the law and then eliminating the
facts, sometimes not eliminating them at all, but mixing them up
together, and giving his judgment on a mixed question of law and
fact—those Reports are ten times as difficult to produce. It is ten
times as difficult to make them Reports which shall present to the
Profession any tangible point of law, easily accessible, and to be re-
membered—it is ten times as difficult as the task of the Common
Law Reporters who, in a moment, can tell whether the case is likely
to be one involving points of law, or whether it is a case in which the
facts are all-in-all, and the facts of which they may dismiss from their
attention, and have nothing to do with. That I believe is a sound
210 HISTORY OF “THE LAW REPORTS.”

distinction ; and that is one reason why I believe the members of the
Chancery Bar are more anxious that there should be some change in
the system than the members of the Common Law Bar. There,
again, I may be mistaken; but I collect that from what I hear from
members of my own branch of the Profession. Therefore, I only wish
that there should not be a hasty decision imposing upon the whole
Profession an evil, when it may be that that is an evil which affects
one branch of the Profession only, and produces no mischief and no
evil to the other. Then I will also say this, that, as far as my testi-
mony goes, and as far as J believe as that of the majority of the Common.
Law practitioners go, although there are certain Reports which are not
so good as other Reports, still on the whole, whether you take the regu-
lar Reports, whether you take “ The Law Journal,” or any of the minor
Reports, so far as mere accuracy is concerned, it is a libel on those
Reports to say that any of them are really inaccurate. On the con-
trary they are, as a rule, most accurate, and you may with the greatest
safety take any one, be it “‘The Weekly Reporter,” be it “ The Law
Times,” be it “ The Law Journal,” or be it “ The Jurist,” or be it the
regular Reports. Jf you take them into your hand and look at what
was the decision and what was the argument on any question decided in
the Common Law Courts, you may be almost certain that that report is
strictly correct. One may be fuller than the other; but they all give
an accurate view of what has been decided in the cases reported. ]am
anxious to say that, because I believe that in the origin of the whole
movement, and at the meetings which that movement has led to, a good
deal of injustice was done in that respect. It was assumed that there
was a great deal of inaccuracy in the Reports that did not exist.
[Cries of “No! no!” and“ Yes! yes!” |] Ihave heard it stated myself,
over and over again, and, therefore I cannot help feeling that that
was an element in the question. [No/ no!) Iam glad to hear that
it is not so considered now. But certainly it has been stated so very
frequently, and so very loudly, that one could not help feeling that
that was one of the elements that had caused the question to be raised
in this manner. I have stated quite enough to justify myself in
having opposed this scheme. I only wish to say one further word,
and that is this, that it has been assumed by my friend, Mr. Daniel,
in the pamphlet that he wrote in reply to the observations made
against this proposal of the Committee, that I was sent to that
Committee as representing some other persons.

Mr. Daniet :—Oh no!

Mr. Denman :—I know that Mr. Daniel disavows it, for he has dis-
avowed it to me personally; but in the pamphlet, as I read it, I was
spoken of as the representative (that was the word I think) of those
who, whether on the ground of existing interests, or some other
HISTORY OF “THE LAW REPORTS.” 211

ground, thought the reform was not wanted, and that the existing
state of things ought to be left as it is. Now that is not at all the
view I take. What I say is, that the existing state of things is a
state of things which is not, so far as my Common Law experience
goes, one that so requires amendment as that you should impose on us
anything that would be in itself an evil. I really believe that if this
scheme is carried into effect, one of two results will follow, if it fails,
either another abortive scheme, a break in the continuity, great
annoyance to many people purchasing Reports that must destroy some
good existing Reports in the struggle; or, if it succeeds, I believe,
in the end, it must in its nature come to a practical monopoly—
we should have all the evils of monopoly—we should have very
few cases reported, which I believe to be a great evil, a very general
selection of cases to be reported; and in the result we should not
know what the Law was on any question on which there might
be a difference of opinion when it came before the Judges. It has
been assumed that it would be of great advantage to have this
selection of cases. I do not agree to that. I think that one of the
advantages of free trade is that we should have every case on what
can be called “a point of law,” reported, and that the Judges should
not exercise too much discretion as to what will ultimately be the
value of one case or another. [Hear! hear!] Some of the most valu-
able cases are cases that, at the time, could not have appeared to be
of any importance to anybody but the parties, and those cases are
now the very cases which are appealed to as enunciating great prin-
ciples which are acted upon by Judges afterwards and become the
foundation of solid and good Law. I believe, if Reporters and Editors
were to have too much discretion in selecting cases, the public would
not have half that knowledge they have at present under the Free
Trade system, by which each Reporter keeps the other in check and so
gets each case reported. That is my view, which is formed after
deliberation, and after hearing a great many views propounded in
the Committee from 400 or 500 different members of the Profession ;
and I may say that, in the course of the consideration of the matter
by the Committee, the Committee did find objections which had
never previously occurred to them, and one of the objections, which I
think was felt by many members of the Committee who at first had
taken a somewhat different view of the subject, was an objection to
having anything like a monopoly. Certainly, the feeling of Mr.
Daniel and many members of the Committee was, let us have no
monopoly, because that will create idleness and carelessness, and will
prevent the Profession having such good Reports as they ought to
have. Gentlemen, I am sorry to have detained you so long. As
regards the scheme itself, all I can say is that if it is set on foot,
212 HISTORY OF “THE LAW REPORTS.”

though I think that will be a serious evil, I shall give it my best
support, and shall at once subscribe to it.

Mr. Ossorne Morcan then rose to address the meeting.

The Cuarrman :—Perhaps it would be convenient that I should at
once make’a few observations on the order of proceeding. The order
of proceeding, which I believe is always adopted when amendments
are made to a motion, is, that the amendment first moved should be
first put; because, of course, if half a dozen amendments of a
different character are moved it is obvious they cannot be all put
together, and we must dispose of them in the order in which they
are presented. There is no objection to any Gentleman giving notice
beforehand of what amendment he intends to move at the proper
time and in the proper form.

Mr. Ossorne Morcan :—Sir, I really thought that the abstract
question which Mr. Denman has so ably and eloquently discussed,
namely, whether the present system of reporting was universally
bad, and whether it was practicable or possible to remedy that
system, was discussed and disposed of at our first meeting, and that
we were now brought together merely to consider the Report of the
Committee. To that Report, therefore, I propose to address myself;
and it does seem to me that it is to be objected to on one or two very
serious grounds. I am afraid that the objection I shall take will not
be one in which my friend Mr. Best will sympathise. He objected
to that part which relates to the Editors. I object to the part that
relates to the Reporters. Now, I certainly understood, when we met
here a year ago, that the majority of the Bar were of opinion that
the present system of reporting, authorized as well as unauthorized,
was so bad that it was absolutely necessary to make a radical change
in it. I was nota little surprised, therefore, to find that the Com-
mittee by their 12th article proposed this, that, “The existing
authorized Reporters shall have the offer of the first appointments in
their respective Courts,” in other words, the Committee propose to
swallow at one gulp (if I may use the expression) the whole of the
authorized Reporters; that is to say, so many of them as are willing
to take the bait offered to them. Now, I decidedly think that that is
avery bad way of beginning. I think it a great mistake; and, like
a great many mistakes at the threshold, likely to prove irremediable.
I think if we are to do any good with the proposed system we must
do so by making these new official Reports so exceedingly good as, in
effect, to annihilate competition. That I know was the view which
my friend to whom we owe so very much, and whom, without mean-
ing any offence, I might apostrophise as, ‘A Daniel! a second Daniel
come to judgment!” When my friend first brought his scheme forward
he certainly promised that he would secure such a host of reporting
HISTORY OF “THE LAW REPORTS.” 213

luminaries that we lesser lights, like “The Law Journal,” “The
Weekly Reporter,” and “The New Reports,” would “pale our
ineffectual fires,” and would be quite willing to be snuffed out like so
many candles in the daytime. That certainly was the proposal of
my learned friend. Now, is this system which the Committee have
put forward, adopting as it does the whole of the authorized Reporters,
likely to attain that object? Of course, it is a very delicate matter
to criticise so distinguished a body of gentlemen as the authorized
Reporters, but, standing here in the interest of the Profession, I am
entitled to ask this question, does the present system of authorized
Reports, or does it not, satisfy the wants of the Profession? If it
does, why do you want a change? If it does not, what will be
gained by keeping the authorized Reporters, and merely changing
their name from “‘ Authorized Reporters” to “ Oficial Reporters”? I
know what my friend Mr. Daniel will say, “ Oh, but we are going to
put the authorized Reporters under the supervision of Editors.”
Thereupon, jumps up my friend Mr. Best, and says, “ We do not
want the supervision of Editors, we are not going to be supervised or
superintended,” and I do think, from the little experience I have had
in editing, there is a great deal in what my friend Mr. Best says, for
Ihave found out that it is a very easy thing to spoil a good report,
but a very difficult thing to amend a bad one, and I quite agree that
the Editors which the Committee have proposed will be an expensive,
and, at the same time, a useless luxury. “Oh,” (but my friend Mr.
Daniel says) ‘‘ we shall be able to have two or three Reporters, and
one of them will pull up the other.” That is proceeding entirely on
a fallacy. Recollect if you want to have your Reports cheap, you
can only do so by having them extensively circulated, and if you
want to have them extensively circulated you must have them (and
we come back to the same proposition) better by a very great degree
than any other Reports. Now I wanted very much, with reference
to the question of circulation, to ask a question of my friend. He
has told us how much it will cost to print a certain number of books,
but he has not told us one thing, and that is, what number of
subscriptions have been already promised to his work. Ido not want
to dive into my learned friend’s secrets; but if what I hear is the
truth, they are about one-tenth or one-eighth of the whole number
required ; in fact, my friend is very much in the position of a joint
stock company, who, having brought out a prospectus does not find
more than one-tenth of the shares taken up. What is the obvious
inference to be drawn from that? Why, simply, that the Profession
generally do not feel confidence in the scheme you propose. [Hear!
hear !) They do not feel you are in earnest, and, therefore, will not
come forward to support you. But then I shall be told, “the
214 HISTORY OF “THE LAW REPORTS.”

authorized Reporters are a necessary evil.” I have been told that
before by my friend. You cannot work your scheme at all unless
you get rid of them, and in order to get rid of them you must give
them the right of pre-emption and continue them in their places
whether they are fit for it or not. I should be exceedingly sorry to
say anything against the existing authorized Reporters. I repeat, it
is a most invidious thing to refer at all to so distinguished a body of
men—but I certainly will not vote in favour of adopting the Report
of the Committee if it contains that clause. I therefore propose to
move an amendment. I suppose J am not in order if I do so at once.

The Cuarrman :—You can read it now.

Mr. Morean :—I may perhaps be allowed to say I intend to move
an amendment to the following effect, that the words of the 12th
article, that “ The existing authorized Reporters shall have the offer of
the first appointments in their respective Courts,” be expunged, and
that in their place the following words be inserted, “The Council
may, if they think fit, make arrangements with any of the existing
authorized Reporters as to the terms upon which they will be willing
to discontinue their Reports,” and then the article will go on, “A
preference may, if the Council think fit, be given to the Reporters of
any publication,” and so forth. I also propose to expunge the 14th
paragraph; but, if you tell me that is impracticable and will not -
work, then I consider it so fatal a blot upon the whole Report of the
Committee that I shall vote for its rejection.

Mr. Josaua Witiiams :—Mr. Chairman, I trust I may be allowed
as a very humble member of the Committee to make a few observa-
tions. I intend to move an amendment which was to be seconded,
and I believe will be, by one of the members of the Committee, to this
effect: ‘That no Reports of cases can be sanctioned by this meeting
which are not invested by paramount authority with the privilege of
exclusive citation.” It appears to me that the meeting must make
its choice between exclusive citation, on the one hand, and the utmost
care in reporting all decisions, on the other hand; and that between
the two there is no medium course. The majority of your Committee
have attempted a scheme which is a compromise—it is neither one
thing nor the other. The Reports that they propose will not be
“authorized Reports,” in the strictest sense, because it will be com-
petent to any member of the Bar to publish Reports in opposition to
them; and if other members of the Bar compete with them, they
must compete with the other members of the Bar, and the principle
of competition against which we have heard so much from Mr. Daniel
must again come into operation. Either you must have the principle
of competition, or you must have the principle of authority—between
the two there can be no choice [ Hear! hear!) We may entertain
HISTORY OF “THE LAW REPORTS.” 215

different opinions concerning the propriety of authorized Reports. I
can imagine a Report put forward by authority which would neces-
sarily exclude all others from the field. If exclusive citation be
permitted to any set of Reports, then it is obvious that no other set
of Reports can possibly be received; but if there be no privilege of
exclusive citation, what is to prevent the others from still going on
with the Reports which they have already commenced, and from
still taking advantage of their precedence in the field? Will the
authorized Reporters, as they are called, shut up their Reports and
cease to publish them the moment these standard Reports come out?
It is certain that the unauthorized Reporters will not do so [Hear !
hear !) and, if that be the case, what shall we gain but one more series
of Reports added to the already too great number? [Cheers.] I feel
that, much as we are indebted to these gentlemen, much as we ought
to thank them for the pains they have taken (and they have taken,
as I have witnessed, great pains), they have lamentably erred in the
remedy they propose. Let me warn you, before you take that remedy,
of the mischiefs that I think will ensue. I fear you will find the
remedy worse than the disease. In order to obtain exclusive circula-
tion you must have either absolute authority or infallible knowledge,
absolute authority to suppress any case that you do not wish to
report, or infallible knowledge of all the cases that are ever decided
by the Courts, and infallible knowledge of the Law to ascertain
whether or not such and such a case is fit to be reported. Sir, I do
not think that this Tree of Knowledge will grow in the little Paradise
the Committee have promised you. There must be absolute know-
ledge of good or evil to reject a case, on the one hand, or to report it,
on the other. If that be so, it must necessarily follow, that there
can be no series of Reports deserving the attention and the patronage
of a meeting like this unless such Report be sanctioned by a para-
mount authority; and by “paramount authority” I do not mean
the authority of a Council of Reporting, for the Committee have
wisely, I think, excluded from their plan the notion of exclusive -
citation, because if this authority were committed to a Council of the
Bar you would, in fact, have the decisions of the Judges overridden
by a Council of Barristers, and that I think would be improper.
The authority ought to be one of a permanent kind—at least equal
to the authority of the Judges, if not superior to their authority.
By the authority of Parliament, it is plain that Reports after a while
might be made conclusive. It might be provided, that such and such
Reports and such only should be cited, and then we should have
what we want, but otherwise we shall not have it. It is a mere
delusion to suppose that any Reports, got up and patronized by the
Bar, will, by reason of that patronage, drive others out of the field.
216 HISTORY OF “THE LAW REPORTS.”

What are the motives which the Reporters will have. They will be
infected with that official atmosphere of idleness which tends to make
people careless in the discharge of their duties. Having got good
places they will not be under the same inducement as other people
to be careful, expeditious, and accurate in their Reports. And, not
only that, but the scheme of the committee does not, as it seems to me,
even take ordinary care that there should be always a Report of
everything that goes on in the Courts. For, mark you, the Reporters
are to be allowed to practise; and at the same time, by the 17th
article, while no restriction is to be placed upon the right of the
Reporter to practise, he is to be diligent and punctual in the dis-
charge of his duties. That is as much as to say, that a man may, if
he pleases, be in two places at once. If he practises he cannot be
always be in the Court of which he is the Reporter; and, if not, who
is to do his work? The guarantee, therefore, that there should be
always somebody to report is wanting, the man cannot be in two
places at the same time, and that being so, I do not see how it is
possible that there should be an accurate and complete report, under
this system, of everything that passes in the Courts. But, Gentlemen,
if you consider it well, you will come to the conclusion that there is
nothing between absolute authority on the one hand and careful
means of recording every decision of the Courts on the other hand.
I ventured to suggest such means; I ventured to suggest before the
Committee, that every judgment of the Court should be in writing ;
or, if not in writing, should be committed to writing under the
authority of the Court, and should be made accessible to any member
of the Profession as speedily as possible. That is my opinion. That
I think would obviate many of the evils to which we are now
subjected, and of which we hear complaints. That would give com-
petition fair play, which it has not under the present system, that
would enable those who should, by industry and application make
better reports than others, succeed in their attempt, and would give
to each fair play, and would put the principle of competition, into
active and successful operation. That is your choice on the one side;
and, on the other, there are the authorized Reports. I will not say
which of the two is the best; but this I will say, that you have
nothing to do but to choose either the one or the other.

Mr. T. Wepstzr :—Mr. Attorney-General and Gentlemen. I hope
that the Report of the Committee will be adopted. We have had
speeches from four gentlemen pointing to objections in detail, I will
say a word on each of them. Let me put it to you, whether it is not,
I will not say the universal, but, the concurrent opinion in the Profes-
sion that the present system is bad, and that something ought to be
done? Assuming, as we do, that the present system is bad, and you
HISTORY OF “THE LAW REPORTS.” 217

having appointed a Committee of men in whom weall have confidence
(for not a word has been said, or can be said, against the selection
made) who have given you a most elaborate Report, we should
stultify ourselves if we did not adopt the Report. Now, Gentlemen,
to take the last speaker. He says, you must have something abso-
lute, you must have infallibility. Is that possible? Is not every
thing more or less a system of compromise? Are we not endeavour-
ing to do for the best? [A woice: “ Best thinks not.” Laughter.) I
did not mean in that observation to refer to my friend Mr. Best. The
last speaker has been heard before the Committee, the Committee
have considered his suggestions and his views, and the views of
others have been well considered, and I do think we ought not to set
aside the Report of that Committee, or refuse to adopt it, because we
cannot have perfect infallibility. Ido not concur in every word of
the Report. No doubt there are many matters of detail that will be
altered ; for instance, the amendment proposed by Mr. Morgan about
arrangements with existing Reporters and to omit the word “ Editors,”
but after all those are matters of detail in working out a large
scheme. But will you, because exceptions may be taken, repudiate
the Report of a Committee on which so much pains has been bestowed,
the Report of a Committee appointed by yourselves, on account of
objections that aim at perfect infallibility? I listened with great
attention to the observations of my friend Mr. Denman, as everybody
must; but I must say I differ from him entirely. I believe the
mischief and evil of the Common Law Reports is infinitely greater
than the Chancery Reports. [Hear / hear !] Look at the set of the so-
called authorized Reports in the Queen’s Bench, those best Reports.
(Laughter.] Look at the number of years they are in arrear. Is not
one of the great objects, and the desideratum to be attained, to have a
Report, I will not call it “ authorized,” but a standard Report pre-
pared after a sufficient lapse of time to have everything carefully
considered? Is not one of our great objects that we may have on the
1st of February, on the 1st of May, on the 1st of August, and on the
Ist of November, all that takes place in the preceding Terms and
Sittings? ‘Will not this so-called Council, or call it what you will—
will not the Committee have achieved a great thing if they shall
have succeeded in procuring for the Profession an authorized standard
Report, instead of that which now occupies its place, at successive
periods ; and then we shall not be in the state we are now of having
Reports for years in arrear. [Cheers.] But, Sir, I have an authority
to quote against my friend Mr. Denman on the question of Common
Law Reports. I should perhaps have hesitated to contradict my
friend if I had not had on my side the testimony of Sir James Wilde
in that most wonderful address of his at York this present Session.
218 HISTORY OF “THE LAW REPORTS.”

Could any man speak in stronger terms of the mischievous conse-
quences of the present system of Reporting? I do say, if not the
unanimous feeling of the Common Law Bar, it is a feeling that is
concurred in by a very large body of the Bench and the Profession
that the thing is extremely bad in itself, and that we ought to do
something to remedy it. A great deal has been said about the
question of competition and free trade. Nobody wishes to interfere
with competition or free trade. It is very desirable that you should
have an early and late Report. This system of reporting is of great
importance to young men in the Profession. I would not seek to
interfere with the speedy and daily Reports that appear in the Daily
Papers and Weekly Reports. Those are the raw material out of
which the subsequent Reports are to be made. But there is no com-
parison to be drawn between those Reports so produced, without time
for consideration, and the well-digested and matured, I will not say
selected, though I think that is a very desirable matter, but the well-
matured Reports that shall come out periodically at intervals of three
months, such as I think will be the case under the recommendation of
the Committee. One word as to the observations of Mr. Best. I
sympathise most fully with him in everything he said ; but is there
really anything in his suggestions as to the independence of Reporters
that the Council will not deal with? You may object to the term
“ Editor,” but the Reporter is but an Editor, and you will still have
those persons who are skilful persons, like Mr. Best, to occupy the
position of Reporters and Editors. Is it anything more than a name?
We are seeking to get rid of a mischief and inconvenience that has
been complained of by the Profession at large, and to do so ina manner
that has been recommended by a Committee appointed by yourselves.
I will not trespass upon your time any longer, except to notice one
further observation that has been made in the course of this discus-
sion. My friend Mr. Denman, or one of the gentlemen who have
addressed you, talked of this being a great Joint Stock Company of
the Bar. I am delighted to think it should be so. Is there any case
in which we of the Bar could better apply the principle of co-opera-
tion which has been carried out under the Juint Stock principle than
in producing the material we so much want. [Hear ! hear!] I care
not for its being called a Joint Stock Company of the Bar. I say it
is the Bar co-operating to produce that which they want, not inter-
fering with the existing state of things more than necessary, allowing
free competition, free trade if you choose to call it so, although I say
it is a misapplication of the term to apply it to the production of a
careful book. You may apply that term strictly and properly to what
is an existing thing in the market that anybody can make, but it is a
misapplication of the term to apply it to a book of this kind which is
HISTORY OF “THE LAW REPORTS.” 219

to be a well-considered, a well digested, and, to a certain extent,
authorized Report of that which has taken place for some time ante-
cedent. Upon these grounds I do trust that the Report of the Com-
mittee will be adopted. By adopting the Report we do not pledge our-
selves to every word of it, but we pledge ourselves to the principle of
it. No doubt the Committee will be able to work out the system
which, although a difficult system, a system of compromise, is still
practicable. We ought to strengthen their hands by every means in
our power, believing that they will produce something which is far
better than the present state of things. [Loud cheers.}

The Cuainman :—-Mr. Best wishes to explain.

Mr. Besr :—I am sorry to intrude upon you again, but as I person-
ally and my Reports have been alluded to by Mr. Webster. [Cries
of “No! no!”

Mr. Wesster :—I wish to say that I did not mean anything at all
personal to my friend Mr. Best.

Mr. Brest :—We are told that we have been several years in arrear.
[Cries of “No! no!” and “ Divide ! divide !”’)

Mr. Wesster :—I was speaking of the Queen’s Bench Reports.

The Cuarrman :—If Mr. Best wiil pardon me, I am quite sure that
no personal reflection on him or his work was intended [Hear ! hear /]
It would hardly be consistent with the respect that we all feel for him
that he should think it necessary to occupy the time of the meeting
in making any explanation [Hear ! hear /]

Mr. Ince and Mr. Hemming then rose together. [There were loud cries
of “ Hemming ! Hemming !”’)

Mr. Ince :—Gentlemen, if you will be quiet, I will promise you not
to be five minutes. Mr. Attorney-General, I simply wish to go into
one part of my friend Mr. Daniel’s speech, which I think has not
been hitherto noticed by anybody, namely, that portion in which he
gave us those statistical details. Now we all know that estimates are
proverbially inaccurate; but I can tell you, not upon estimate, but
upon figures which have come from actual experience, that it will be
absolutely impossible for this new series of Reports to pay their
current expenses unless they have, at least, between 3400 and 3500
subscribers. This is the result of actual experience, and those are
the actual figures. Now, if that is so, the question becomes clear,
where are we to get all these subscribers from? Of course such
a number of subscribers cannot be got from the Bar; you can only
get them from the body of solicitors. The body of practising soli-
citors numbers about 9000 or 10,000. 1f you put the whole of your
customers, in every possible way, who will favour this new system of
Reporting, you will not have above 10,000 persons who can be your
customers. Now, outof that 10,000 | Loud cries of “ Divide ! divide !”’]

Q
220 HISTORY OF “THE LAW REPORTS.”

I really think this is material. It is a question whether you are to
have a new series of Reports or not, and to add to the existing system
of Reports another set. Out of these 10,000 solicitors, there are not
above 3000 or 4000, or 5000 at the outside, whom you can rely upon
as becoming customers for Reports. What chance is there that they
will give five guineas for a series of Reports when they can now get
the same thing for about half the price, and when, in addition to the
Reports, they can get the Statutes and a variety of other information
which, put together, you could not get under another £3 or £4; and
you are asking these customers to take that which will cost them £8
or £9 a year when they can get it now for less than £3 10s. These
are practical reasons ; and the only reason I oppose this scheme is
this, that the only possible result which can happen, if the scheme be
carried, is the starting of a new series of Reports which, of necessity,
must speedily come to an end, and we shall have another broken
series of Reports similar to that which we now have. In addition to
that, you will tend to upset and to shake the stability of various series
of Reports which, up to this time, have been received by the Profession
and have fulfilled the object for which they have been started. ,

Mr. G. W. Hemmine :—I was very unwilling to say anything at all
at this meeting, and I only wish to do so because of the observations
made by Mr. Daniel to-day; because in the remarks in his pamphlet
he has brought me into public notice in a manner that compels me to
say a word or two. It does seem to me that the position of the
Reporters, and especially of the authorized Reporters, has been a little
misapprehended by my friend Mr. Daniel, and others. I cannot help
seeing that the opinions of Reporters, whether dead or alive, are very
much at a discount. It cannot be otherwise. I find in Mr. Daniel’s
pamphlet that reference is made to Mr. Russell, a Reporter when
most of us were boys. I find him brought up to the whipping-post
again in this last attack on the Reporters. I find also that even the
modern Reporters, who died in harness, leaving unfinished work on
hand, are not altogether spared. I think that is needless. [Hear!
hear !} But I do not wish to pursue this point as to the exuberances
of censure on the part of Mr. Daniel, because I have no doubt they all
spring entirely from that fervid and rhetorical temper of mind which
we all know belongs to him. I shall not fall into the opposite
extreme. If I think there has been a little too much censure, I do
not say that Reporters are immaculate, or that the system is immacu-
late. I do not say so, because, in the first place, I should despair of
persuading any one of it, and secondly, because I do not at all think
so myself. I think the present system is very objectionable, and I
should delight in nothing so much as any really feasible scheme that
could be put in the place of it. Now, what I have heard to-day from
HISTORY OF «THE LAW REPORTS.” 221

Mr. Daniel seems to me to be material with reference to this point.
If this scheme is feasible, I do not think we ought to touch the details
of it, they ought to be left to the Committee; and if this scheme is
really a substantial scheme, which has a solid basis, and is really
likely to stand, we ought to try it; but I confess that Iam not yet
quite satisfied as to that. Mr. Daniel referred to me, and said, truly,
that some months ago he shewed me some figures. Well, those figures
led my mind to the opposite conclusion to that which Mr. Daniel has
arrived at. It appears there have been some supplemental figures
and those have been read by Mr. Daniel, and, no doubt, they have
fully satisfied him and brought him entirely to the conclusion that he
intimated, that this scheme would succeed; but I do think that
before the Bar is asked to pronounce an opinion whether this is a
feasible scheme or not, they ought to have the facts before them on
which to form a judgment. It is idle to listen to three or four pages
of figures, as those figures have been run through before us to-day,
and say that we can form an opinion. It seems to me, as a matter of
course, that one of two things must be done, either this Report must
be adopted absolutely without inquiry, without the Bar presuming to
say whether it is feasible or not, or else they must have those figures
laid before them so as to enable them to judge for themselves, and, if
Mr. Daniel has deceived himself in his inferences, to argue the point
with him. I do not argue that point now, I only know this, that
some months ago some figures were shewn to me by Mr. Daniel,
which led me to one conclusion; but they have led Mr. Daniel to
another. Referring to what I find in Mr. Daniel’s pamphlet, I say
there is an impression conveyed which I think is a mistake—there is
asuggestion of this kind, that authorized Reporters are extremely well
satisfied with things as they are; that they desire his scheme to fail ;
and that, because they desire it to fail, they predict its failing. Never
was there a greater mistake than that. I do not know that we are so
well satisfied. Some of us consider that we are in a position of doing
a great deal of very hard work with a very moderate amount of re-
muneration, and no thanks. But whether we are satisfied or not, this
is quite certain, that what the scheme promises is a very considerable
improvement on our present position, and if I were to suspect myself
of a bias at all, the only possible bias would be a bias in favour of the
scheme. I have every reason to desire that this scheme should succeed,
and yet I confess that, in the face of what I see, and cannot help
seeing, from having been mixed up with the Reporting Body, I have
very great doubts whether it can possibly succeed. [Hear / hear!) I
am very anxious to have those figures of Mr. Daniel before me, and if
they lead me to the conclusion to which they have led him, that it is
a feasible scheme, I willsay so candidly. [Hear! hear !| I think we
Q 2
222 HISTORY OF “THE LAW REPORTS.”

ought to have that opportunity. I am not one of those who agree
with what has been said, at this meeting and other meetings, with
reference to the right of compensation for vested interests. I do not
believe in vested interests. Some people have been good enough to
say we have vested interests; but I think that when Mr. Daniel
mounts his chariot of Reform and drives, like Jehu or Pickford,
furiously over us, and we get driven over or fall under the wheels,
there is nothing for us to do but simply to pick ourselves up, pay our
own doctor’s bill, and say no more. I do not think it is for us to
complain. But, though I am perfectly willing tv be driven over for
the general good, yet I do not desire to be driven over in mere
wantonness. I think we ought to be convinced it is for the general
good before we are driven over; and I think the whole meeting will
agree with me. I think that this scheme, although it certainly, in
my opinion, ought to be tried if it can be shewn to have a solid basis,
yet it ought not to be tried as a mere experiment. I have no objec-
tion to be driven over, but I do not want to be made a vile body for
sake of experiment. Well, Sir, if I am right in the view which I have
taken of this, it leaves no difference between me and those who think
with the Committee except this, how are we to ascertain whether
this is a feasible scheme or not. I have pressed on the members of
the Committee, as Mr. Daniel knows, many months ago, the im-
portance of putting the financial details before the Bar that they
might form their own opinion. That has not been done, and some
fresh financial details are sprung upon us at the last moment. They
may be sound, they may have had sufficient consideration from the
Committee, though certainly they do not form the basis on which the
Report was arrived at—they may justify this matter ex post facto. But
whether they do so or not is a question that appears to me to be one
which I do not think the Committee would desire to have left entirely
to themselves, and that for two reasons. JI do not think it is usual
for the Report of a mere majority of a Committee to be put forward
without the reasons which are supposed to recommend it or the
evidence on which it is based. I may be wrong; but I do not re-
member ever meeting with such a case. If the Committee had been
all but unanimous in their Report, I could quite understand they
should come to this meeting and say, ‘“‘ You have confidence in us,”
(and we must feel that, we must all have confidence in the Committee,
tor we are certain that no better Committee could have been chosen.)
You have appointed us your Committee, we have come unanimously to
this conclusion, accept it on the faith which you have in us.” That would
be reasonable enough ; but for a majority to come and say, we are mem-
bers of a dissentient Committee, we ask you to adopt a scheme which
may or may not be feasible, which two only out of the fourteen seem
HISTORY OF «THE LAW REPORTS.” 223

to have examined and considered to be a practicable scheme—when
they come forward with a scheme like that, I do not think they can
say, “Here is this project, we think it feasible upon the whole, no
doubt it will interfere very considerably with the interests of this
man, and that man, but adopt it at once.” Then, as to the interests
of those affected by it. As I have already said, if I had any bias, it
would be in favour of the scheme, for it promises, as far as the Court
with which I am connected is concerned, an income, I think, of £800
or £1000 a year, and I can assure the Committee and this meeting
that the Court in which I practise never, since Vice-Chancellor Wood
presided over it, and long before, produced anything like that amount.
Therefore, all our interest bears in favour of the scheme. No doubt
we are interested in it in this way, to prevent, if possible, the scheme
from being attempted and proving a failure. No doubt it would
injure us if it failed; but would it not injure the Bar too? Just con-
sider what would be the effect of this scheme failing. Suppose you
start it, for the first year a large number of men will subscribe £5,
some would go on and subscribe £5 a second year, some would lose
£5, and some £10—that would not be much; but during all this time,
the present evil that is so much complained of, the multiplicity of
Reports, will be much aggravated, while the very object of the whole
movement, namely to reduce the number and thereby to reduce the
cost to those who buy them, will be defeated, you will aggravate the
evil, and, besides that, you will stop the way. Nothing else can be
done till this scheme is disposed of. Therefore, I say, by all means
let it be ascertained, with certainty, whether it is a solid scheme, or
not, and let the Bar have the opportunity of considering, on paper,
these figures. [Loud cries of ‘‘ Divide ! Divide! ’”’}

Mr. Eowarp WessTeR:—I have had the honour of receiving from
the Committee a copy of this Report, and, therefore, I have a right to
address this meeting although I have retired from practice at the Bar
under circumstances the more fully and generally known the better.
None of the speakers hitherto have raised a question of principle. It
is now my intention, by the motion I am going to read to you to raise
a question of principle. In my judgment, the Bar is about to make a
very great mistake in this matter, and I believe I am able to say that
I am the only person in this room capable of forming an entirely
independent opinion [Loud laughter], because the price of the Reports
is a matter of utter indifference to me [Renewed laughter], and I fear
very much that the Bar is, on the present occasion, guided, to a very
great extent, by contemplating pecuniary advantages which, in truth,
will never be realized. [Hear ! hear !] I object to the constitution of
the Council, because it is a voluntary Council, an unpaid Council.
[Cries of “ Divide! Divide!”| And you cannot by any possibility
224 HISTORY OF “THE LAW REPORTS.”

prevent the Legislature interfering on the subject of the Reports. I
therefore move, ‘‘ That in the opinion of this meeting it is expedient
that Law Reporting and Law Reports be brought by Government to
the notice of the Legislature with a view totheir Amendment.” That,
Gentlemen, is the only real remedy for the present evils of Law
Reporting; and, in the event, which I fully anticipate, that the Bar
is exposing itself, on the present occasion, to the imputation of being
actuated by a commercial principle, and if, in addition to that, your
scheme should fail in reducing the number of Reports, why then you
will have come forward on a most important question, not confined to
the Bar, but affecting the welfare of the public, and you will then
have failed. I therefore move this resolution for the purpose of
raising this question—whether it is not expedient, having regard to
the welfare of the Bar and the public, that the Government should
take up this measure; and if, on the present occasion, the Bar were to
affirm that a declaratory code is the only mode of remedying the evil,
and Reporters were appointed to conduct the Reports with a view to
that code, then you would have a real remedy and one worthy of the
Profession. The remedy which is now proposed is not one that is
worthy of the learning, the sagacity, or the foresight of the Bar.

Mr. Hemumine :—Sir, I do not know whether I am in order; but in
consequence of a misunderstanding, I omitted to read the amendment
that I intended to propose. I do not know at what time I should
read it.

The Cuairman :—Read it now—we will put it in due course to the
meeting.

Mr. Hemminc:—My amendment is, “That the Committee be
requested to circulate among the Bar the financial data on which their
scheme is based and the result of the appeals made for subscriptions.” .
{Hear ! hear!) Then I propose to add this, “‘ And any other informa-
tion in their possession which, in their opinion, would assist the Bar
in forming an opinion on the principle and feasibility of the project.”

The Cuairman :—I believe it will be the wish of the meeting that
these different propositions should be considered with as much
regularity as possible. I would first put the first amendment to the
original motion. The original motion is, “That the Report of the
Committee be adopted. The amendment moved by Mr. Best was,
‘That the words in Rule 5 ‘That the Reports shall be prepared by
Reporters under the supervision of Editors’ be omitted and that cor-
responding alterations be made in any other Rules relating to the
same subject.” Imay as well state what will be the effect of adopting
or rejecting that motion. IEf it is adopted, it will still be competent for
any other gentleman to move amendments. If it be rejected, it will
still be competent for other amendments to be submitted. Is it the
HISTORY OF “THE LAW REPORTS.” 225

pleasure of the meeting that the amendment which I have just read
should be carried ?

A show of hands was then taken, very few being held up in favour
of the amendment.

The Caarrman :—I declare the amendment lost. The next amend-
ment moved was Mr. Morgan’s, to omit from clause 12 the words,
“The existing authorized Reporters shall have the offer of the first
appointments in their respective Courts,” substituting for them the
words, “That the Council may make arrangements with any of the
existing authorized Reporters as to the terms on which they may be
willing to discontinue their Reports,” and to omit clause 14.

A show of hands was then taken.

The Cuarrman :—I declare that amendment lost. The next amend-
ment moved was by Mr. Joshua Williams, “‘ That no Reports of cases
can be sanctioned by this meeting which are not invested, by para-
mount authority, with the privilege of exclusive citation.”

A show of hands was taken, and the amendment declared to be
lost.

The CHarrman:—The next amendment was that moved by Mr.
Hemming, “ That the Committee be requested to circulate among the
Bar the financial data upon which their scheme is based, and the result
of the appeal made for subscriptions, and any other information in
their possession which, in their opinion, would assist the Bar in
forming an opinion on the principle and feasibility of the project; and
that in the meantime this meeting be adjourned until a day to be fixed
by the Attorney-General.

[A show of hands was then taken for and against the amendment. |

The Cuarrman :—I do not think I can decide this by show of hands.
I must ask the Bar to divide. Those who are in favour of Mr. Hem-
ming’s amendment will go to the right of the Chair, and those who
are against it to the left.

A division was then taken.

The Cuairman :—The result of the division is: For Mr. Hemming’s
amendment, 111; Against it, 126. The amendment is lost. [Loud
cheers.| The only remaining amendment is that moved by Mr. Edward
Webster, “ That in the opinion of this meeting it is expedient that
the Law Reporting and Law Reports be brought by Government to
the notice of the Legislature.”

Mr. Sipyey Smita :—I do not think that amendment was seconded.

The Cuatrman :—We have not gone through that form with the
others.

Mr. Atmaric Rumsey :—If it has not been seconded, I will second it.

The amendment was then put to a show of hands, and declared to
be lost.
226 HISTORY OF “THE LAW REPORTS.”

The Cuarrman :—I have now to put the original resolution: “ That
the Report of the Committee be adopted.”

A show of hands was then taken.

The Cuairman :—I think the resolution is carried. [Cries of “ No!
no!” and ‘“ Divide! divide!” ] If any gentleman wishes it, the meeting
can divide. {Loud cries of “No! no!”’)

[A second show of hands was taken, when there was a considerable
majority in favour of the resolution. |

The Cuarrman :—The resolution is clearly carried. [Loud cheers. ]

Mr. Danirt:—The Report of the Committee having been now
adopted, the resolution prepared by Mr. Amphlett, and which would
have been moved by him but for his absence, is in these terms:
“That the Attorney-General be requested, as President of this meeting,
to communicate the resolution adopting the Report to the Lord Chan-
cellor, the Master of the Rolls, the Benchers of the several Inns of
Courts, the Society of Serjeants’ Inn, and the Council of the Incorpo-
rated Law Society, with a request, on behalf of the meeting, that they
severally will be pleased to further the objects of the scheme. One
word with reference to a question Mr. Hemming put to me. At the
last meeting, Mr. Manisty, not a member of the Committee, said, at
the close of the proceedings of the last meeting, “I would make this
suggestion—that those who are prepared by November to accept the
invitation to pay five guineas annually, should send in a note to that
effect.” He was not a member of the Committee, nor was such a
suggestion satisfactory to the Committee. But Mr. Amphlett, as
Chairman, thought it due to Mr. Manisty and to the meeting, who
appeared to sanction his suggestion, that that opportunity should be
afforded. The objection of the Committee was this: an objection
which they have found repeated over and over again by members of
the Bar and Solicitors, namely, that until this meeting had had the
fullest opportunity of considering the question whether the Report
should be adopted or not, it was premature, and it was not becoming,
to forestall the judgment of the Bar by invitations. [Hear / hear /)
I am in a position to tell you that from solicitors in every quarter of
England we have received invitations sanctioning the course which
the Committee have taken, and expressing ardent hopes that the
result will be successful. [Cries of “ The number.”] Something
under 300. [A laugh.] Could it be expected to be otherwise ?

The resolution having been seconded, was then put to the meeting
and carried nem. con.

Mr. Denman :—I beg to move a vote of thanks to the Chairman for
the impartial manner in which he has conducted the proceedings of
this meeting.

Mr. Danizx : —I beg to second that motion.
HISTORY OF “THE LAW REPORTS.” 227

[The resolution was carried unanimously, amid loud cheers. ]

The Cuarnman :—I am obliged to you. Of course, on this occasion,
I did not care here to express any opinions of my own, but only, as
far as I could, to assist you in your deliberations.

Mr. Evperton :—I think it is due to the Committee that the thanks
of the Bar should be given to them for the great trouble they have
bestowed on the investigation of this matter, and the pains they have
taken in eliciting opinions from every quarter.

The resolution having been seconded, was carried unanimously.

The proceedings terminated at five minutes to 6 o'clock.

The meeting thus ended satisfactorily, so far, at least, as to shew
the Committee that their labours had not been altogether in vain.
But, judging from the tenor of the personal remarks made by the
most prominent speakers at the meeting in opposition to the
scheme, amounting almost to an attack on me, and desiring to
stand well with the Profession from the highest to the humblest,
it appeared manifest to me that it would fall to my lot and
become my duty to take a very active part in superintending
and directing the delicate and difficult proceedings which would
be required to be taken in order to ensure the Bar Scheme being
brought into such a practical shape that ultimate success might
be reasonably expected. I am, therefore, anxious at the outset
to explain and make clear, for reasons which will be obvious,
under what circumstances and by what means the firm of William
Clowes & Sons were introduced and became known tome. In
my first letter to Sir Roundell Palmer, then Solicitor-General,
dated the 12th of September, 1863, I had suggested as the first
step to be taken in furtherance of the scheme which I had pro-
pounded as a remedy, that a meeting of the Bar should be called
by the Attorney-General to consider the question of the existing
evils of the system of Law Reporting with a view to the adoption
of some remedy. Sir Roundell was not then the Attorney-
General, but he became so in October upon the sudden death of
Sir William Atherton, and on the 13th November I commenced
the correspondence which ultimately led to the Bar meeting of
the 2nd of December, as already stated. When my brochure of
the 18th of May was first circulated, the late Mr. Henry Warwick
Cole, Q.C. (who afterwards became County Court Judge for
228 HISTORY OF “THE LAW REPORTS.”

Birmingham), was one of the most zealous supporters of the
notions I had in that paper thrown out for ventilation among
the Bar; and he wrote and addressed to me a letter of which
the following is a copy :—

38, New Square, Juincoln’s Inn,
17th November, 1863.
My pear Danie,

One great point to be attended to before any meeting is held
on the subject of Law Reporting, and to be then explained, is the
financial part of the question. JI am very anxious to see your project
carried out practically, and I have conversed on the subject with an
old friend of mine, Mr. Geo. Clowes, the eminent printer (of the firm
of Wm. Clowes & Sons), and I believe that he may be able to
remove any difficulties that may be raised against your plan on finan-
cial grounds, and the objection that would be felt by the Bar to
anything like commercial risk. I have, therefore, given him this
letter of introduction to you in order that you may, if you wish,
have the opportunity of furnishing yourself with a definite scheme
that can be practically effected.

Yours very truly,
Henry W. Cos.
W. T.S. Daniel, Esq., Q.C.

A few days after the 17th of November this letter was brought
to me, at my chambers in Lincoln’s Inn, by the gentleman
named in it—Mr. George Clowes—who up to that time was an
entire stranger tome. We had a long conversation together, in
which I explained fully to him my views, but intimated that I
thought it was premature to consider the financial question in the
present state of things; he quite agreed with me and left his card,
which I have retained. It is simply the card of a private gentle-
man, “Mr. George Clowes, Duke Street, Stamford Street.” I
had no further interview or other communication with Mr. Clowes
or any member of his firm until, in the following year, receiving
the introduction through Mr. Cole, I obtained from him the
figures mentioned by me at the meeting on the 28th of November,
and on the morning of that day received from him the answer to
the question read to the meeting; and then all communication
between Mr. Clowes and myself ended, I never had any with his
firm or any other member of it, and it was not renewed until the
Council formed under the Bar Scheme put themselves through me
HISTORY OF “THE LAW REPORTS.” 229

into communication with Mr. Clowes’ firm of William Clowes &
Sons under the circumstances which will be stated in the Fourth
Division of this work, which will detail the proceedings of the
Council formed under the Bar Scheme up to the complete estab-
lishment of “ THE Law Reports” on the 2nd of November, 1865.

I will now add some incidents connected with the meeting
which I think will be read with interest, and be at the same time
agreeable reminiscences to those who were present at the meeting
and still survive. The Attorney-General had no difficulty in
disposing of the first three amendments by show of hands, but
upon Mr. Hemming’s amendment being put he felt a difficulty,
and required that a division be taken—the supporters of the
amendment to go to the right of the chair and the opponents
to the left. Mr. Hemming undertook to be his own teller;
Mr. Thomas Webster, Q.C., volunteered to be teller for the oppo-
nents. The hall was furnished with benches placed at right
angles to the walls on each side, and so placed, left a gangway or
passage, the length of the hall, between the benches. The
respective parties, supporters and opponents, having divided,
Mr. Hemming proceed to count his supporters one by one, each
one as told passing to his rear. Mr. Webster arranged the oppo-
nents in the benches, and seating them found that each bench
would hold ten, he quickly filled twelve benches with ten on each
bench and had six on the thirteenth, and in less than two
minutes he handed the number, 126, to the Attorney-General.
Mr. Hemming had not half got through hiscounting. I took no
part and remained seated on the raised platform by the side of
the Attorney-General ; but he, appearing surprised at the quick-
ness of Webster’s return, turned to me as though he would have
asked a question. I then directed his attention to the benches,
where he could see twelve bencheswith ten on each and six beyond,
and thus was able to verify for himself the correctness of Webster’s
return. It then transpired (what I was not aware of) that several
of the leaders who intended to support the scheme and would
oppose the amendment were in the bencher’s room apart from the
hall, and as soon as they heard a division was being taken they
rushed in and tendered their votes in opposition to the amend-
ment. I think they were five or six, if not more; but the
230 HISTORY OF “THE LAW REPORTS.”

Attorney-General refused their votes as they were too late. This
interlude created some amusement, as they were all of them
leaders. I remember among them Mr. Malins, Mr. Selwyn, Sir
Hugh Cairns, and I think Mr. Hobhouse and Mr. Osborne
Morgan, and two or three others whom I forget. They, however,
remained to render useful service afterwards. An amusing and
good humoured excitement was going on while Mr. Hemming
was with great care counting his supporters, and having at length
finished he handed his figures to the Attorney-General. They
showed 111, against 126, and the Attorney-General declared the
amendment lost. I then requested the Attorney-General to put
the original motion, namely, that the scheme of the Bar Committee
be adopted. This was done by show of hands. The members
after the voting on Mr. Hemming’s amendment had left their
seats and formed one mass in the hall. Upon the show of hands
the Attorney-General seemed to hesitate; but those now present
who were too late for the former division claimed and were
allowed the right to vote in this division, and the Attorney-
General then decided that there was a clear majority in favour
of the motion. All further opposition was withdrawn, and, on
the motion being finally put, there was no hand held up against
it; and it may therefore be recorded, in the spirit of a recent
memorable example, that a scheme, which had been gallantly but
unsuccessfully opposed, was, when further opposition was with-
drawn, in this instance because fruitless, adopted nem. con. To
be dealt with successfully hereafter as events will shew. Oh! st
sic omnia !

I will venture upon only one further remark in connection
with this meeting. It is this. If Mr. Hemming’s amendment
had been carried there would have been an end of the Bar Scheme.
The Committee had taken the very best means in their power to
test as a commercial question the financial soundness of the scheme,
assuming that the requisite number of subscribers should come
forward. These particulars were fully stated by me in my
address to the meeting, and their accuracy was not questioned by
Mr. Hemming; to obtain the particulars asked for by his amend-
ment would have been a reflection on the Committee to which I
am satisfied net one of their number would have submitted; and
HISTORY OF “THE LAW REPORTS.” 231

the scheme would thus have become, what during the autumn those
unjust detractors, of whom I have spoken, ventured to represent
it—a fiasco! And mark how lamentable would have been the
consequences, and how irreparable! The public and the Profession
would never have realised the benefit which they have now for
twenty years enjoyed from the learning, the skill, the ability,
and the unflagging energy with which Mr. Hemming has dis-
charged his duties as Editor of the Equity Series of “Tam Law
Reports.”

“ There’s a Divinity that shapes our ends, rough-hew them how
we will,’ truly says Shakspere ; and, as Love’s Labour has not been
Lost, All’s Well that Ends Well. Thus ends the Third Division.

But before proceeding with the Fourth I will add, by way of con-
trast to the writers to whom I have referred, leading articles on the
subject of the last meeting which appeared in “ The Times,” “ The
“Daily News,” and “The Daily Telegraph” of the 30th of No-
vember, 1864, and I also add an article from a provincial paper of
note in the district, “The Derby Reporter” of December 30,
1864. All these representatives of the press deal with the question
generously and in a liberal spirit, and do not descend to the
imputation of any unworthy motive in anybody.

From “ The Times,” Nov. 30, 1864.

Tue reform of Law Reporting may not be a very attractive subject
to the public in general, but it is one which nearly concerns their
interests. The recording of judicial decisions is virtually the manu-
facture of law, for a case once enshrined in a recognised Report, unless
reversed by a superior Court, or explained away by collation with
some other Report, governs the rights of her Majesty’s subjects for the
future. The method therefore, in which such a work is to be con-
ducted ought not to be treated as a merely professional question.
Legal practitioners, of course, desire to have authentic Reports, which
can be quoted in Court, and are not too confused for purposes of legal
reference. But they are by no means unanimous in their wish to
eliminate from Reports cases which prove nothing, to reduce their
bulk, or even to diminish their expense, for brevity and simplicity
are to the thoroughbred lawyer what infinitesimal doses are to the
apothecary. This consideration may serve to throw light on some
of the difficulties which the Committee on Law Reporting have had
232 HISTORY OF “THE LAW REPORTS.”

to encounter. Had the improvement of our jurisprudence been the
paramount object of the Bar, had no vested interests intervened, and
had the impartial opinion of the Judges been solicited, we cannot
doubt that greater progress would have been made. As it is, a com-
promise which does not go to the root of the evil has been proposed,
and carried by a narrow majority of those who attended the meeting
in Lincoln’s-Inn Hall. Whether it can be effected depends on the
consent of many different bodies, and whether, if effected, it would be
preferable to theexisting system depends on a great variety of con-
ditions. Before we state its main features, however, it may be well
to point out exactly what it professes to remedy, and in explaining
this to our readers we cannot deviate too widely from the received
style of a modern Law Report.

Every one knows that the so-called “unwritten law” of this
country is contained in a series of published Reports, that these Reports
purport to be short historical summaries of lawsuits, of the material
facts brought out in evidence, of the points raised by counsel, and of
the judgments pronounced by the Court on those points. Most people
know that of these Reports a large proportion are worthless, since
they merely exhibit the application of a familiar principle to a familiar
set of circumstances; that others are, in some respects, worse than
worthless, since they give colour to doctrines afterwards rejected as
unsound ; and that almost all are encumbered with superfluities of
pleading, judicial doubts, obiter dicta of questionable relevance, and
loose materials for which a text-book is the proper place. Such being
the character of the soi-disant “regular” Reports, it must now be
added that they frequently appear at most irregular intervals, omit
cases which really deserve notice, and cost more than they would be
worth if they were perfectly authoritative. On the other hand, so
far from being authoritative, they have to struggle against competi-
tion on all sides, and are sometimes confessedly inferior to those com-
posed for legal periodicals. The result of this is, as Sir James Wilde
remarked on a recent occasion, that the oracles of our law have to be
gathered, as it were, from leaves scattered in wild disorder up and
down some thousand volumes, and, moreover, that several discordant
versions of the same oracle have to be collected at a great expense
and compared with each other. Now, let us consider, first, what ex-
pedient an unlearned person would suggest to cure this anomaly, and
let us next see whether, having regard to the objections alleged by
the learned, that expedient be practicable; after which we shall be
in a position to appreciate the scheme adopted by the meeting.

The course that naturally occurs to the uninitiated is to provide for
the production, at stated periods, of succinct Reports, containing
HISTORY OF “THE LAW REPORTS.” 233

nothing immaterial, and carefully corrected by the Judges themselves.
If the Judges could be induced to deliver written judgments on all
important cases, so much the better, and the labour of the Reporter
would then be limited to the preparation of such an introduction as
would render the ratio decidendi intelligible. How concise this might
be the great example of the Year Books is sufficient to prove, and
those cases which were not thought to be worth written judgments
would not, for the most part, be worth reporting as judicial precedents.
With or without the safeguard of written judgments, reports edited,
expurgated, and corrected under the immediate authority of the
Courts would command a general circulation among lawyers, and
would be fitted to become the permanent repository of our case law.
So, at least, any one unembarrassed with legal experience would
suppose, and, as he would probably regard this as the grand desidera-
tum, he might be tempted to overlook obstacles of detail. These,
however, we must examine, for to the lawyer they are far more for-
midable than obstacles of principle. It is urged that any such
reporting must be “ official,” and that, by extinguishing competition,
it would strike at the “independence” of Reporters. No doubt it
would be official, if by “ official” reporting be meant reporting under
a sense of public responsibility and not at private risk. But is this a
reason for condemning it? Is there the least doubt that a report of
this kind would be more valuable and trustworthy than any which
we now possess, and that it would encourage greater precision and
condensation of statement on the Bench itself? For, if there be not,
this is a strong primdé facie ground for introducing it. But would it
extinguish competition after all? It has been said by Mr. Joshua
Williams and others that authority and monopoly are here inseparable
from each other; in other words, that no report can be conclusive
which is not exclusive of all others. This is far from self-evident.
Cases are reported with more objects than one, and the strict pre-
cautions which should be observed in stereotyping the law may be
discarded in supplying information to the public, or even to the legal
profession. The advocate might still borrow illustrations from un-
official sources, though he were prohibited from referring to them as
binding authorities, and no Reports worthy to be quoted without
appeal could keep pace with all the requirements of daily practice.
The inquiries of the sub-committee into the practice of foreign
countries shew that in France, Norway and Sweden, Denmark and
Italy, authentic minutes of judicial proceedings are registered, in a
more or less‘convenient form, by a public officer, while in the Supreme
Court of the United States there are official reporters. Perhaps some
fault might be found with every one of these systems, but it does not
234 HISTORY OF “THE LAW REPORTS.”

follow that they are not, one and all, superior to our own, or that any-
thing whatever is gained by the mere absence of Reports on which we
can absolutely rely. Let the urgent want of them be once established,
and the best mode of appointing and paying Reporters will soon be
settled.

The plan recommended by the Committee embodies the idea of
quasi-official Reports, but it places the compilation of them under the
control of a council of barristers, and does not aim at impressing them
with any higher sanction. In fact it isa proposal to establish a large
joint-stock company for the publication of Reports which are to super-
sede all others, being prepared by a highly-paid staff under the
management of a representative Board, “ upon the principle of reject-
ing all cases useless as precedents,” and with such assistance as the
Judges and counsel engaged in each suit can be induced to give. By
offering to the present authorized Reporters the option of the first
appointments under the new régime it is hoped that its natural
opponents may be conciliated, and by allowing the new Reporters to
practise so long as they discharge their duties efficiently it is expected
that greater legal attainments may be secured by the Council. The
estimated annual charge for salaries is about £10,000, and to meet
this it is intended that the entire set of Reports shall be furnished to
subscribers at £5, from the proceeds of which subscription must also
be deducted the cost of printing. Some advance, in the first instance,
from the Suitors’ or Consolidated Fund is contemplated by the Com-
mittee. With this exception the scheme is a very fair, though not
very promising, commercial speculation,—the benefit to the share-
holders being represented by the supply of a good article at a cheap
rate,—but it ig no more. The new series may or may not displace
the existing authorized Reports, and it may or may not be more
skilfully weeded; but it does not profess to fulfil the conditions of a
genuine Year Book. Unless the Judges consent to recognise it as
authoritative, and to make it so by revising it personally and treat-
ing citations from it as decisive, it will be of little advantage to any-
body. No power can compel them to do so but that of Parliament,
and neither the Judges nor Parliament are likely to look favourably
on the assumption of such functions by a voluntary association. If
official reporting is to be introduced, it must be introduced directly
and not by a side wind, with the strongest guarantees for accuracy,
and with less regard to the convenience of barristers than to the in-
terests of future litigants and the consolidation of the law. The Bar
have a perfect right to supply their own wants in their own way,
but if those of the public are to be consulted—always supposing some
radical change to be necessary—it will be very difficult to exclude
what the Committee term “ Government patronage and coutrol.”
HISTORY OF “'THE LAW REPORTS.” 235

(From “ The Daily News,” Nov. 30, 1864.)

A MEETING of the English Bar is an event so rare, if not quite
unprecedented, that the fact that one had been summoned by the
Attorney-General, acting upon a requisition very numerously signed
by his brethren, would deserve, whatever its purpose, a note of
comment. But the object for which such a meeting is to be held on
Wednesday next is in truth of a public quite as much as of a pro-
fessional nature. It is the consideration of the present system of
reporting the decisions of the Courts, those decisions by which the
Common Law is ascertained, and the intentions of the Legislature are
interpreted and applied. That judgments of which this is the purport
and effect should with the utmost accuracy, brevity and speed be
noted and published, is obviously a matter of imperial concern. It
involves very greatly the perfecting and simplifying of the law, as
well as the primary effect of making the law known to the public.
Certainty in the rules by which all the affairs of life are governed is of
the first necessity ; it alone protects us against wrong and delivers us
from the curse of litigation; it takes precedence even of the im-
provement of the law, for law can scarcely be amended till it is
ascertained, and the Legislature is properly chary of interposing
enactments which may prove to be either superfluous or ill considered.
So, as the opinions of Judges on what the law is, form not only the
foundation on which it at present rests, but of every change which
may be made in the structure, it is impossible to exaggerate the
importance of having them recorded in the most careful and complete
manner possible. And in this view, first of all, we congratulate the
Bar on the step it is about to take. The evils and inconveniences of
the present system of reporting may press primarily and heavily upon
it, and we shall briefly glance at these before we leave the subject.
But it is also the depositary of a function of great public moment; it
is the body most competent to give the advice in the matter best
calculated for the public weal, and it therefore assumes a duty and
position to which it is well entitled in meeting to take the whole
question into consideration. We may, indeed, in some degree also
congratulate ourselves on this fact. We have urged before now that
the English Bar is a body which by credit, influence, and learning is
qualified to take a more decided lead in the amelioration of the
institutions under which we live. It has hitherto been the fate of that
body to have its opinions and wishes represented in public only by
those individual members who, for their own personal ends, have
obtained seats in Parliament. But as these gentlemen have already
attained eminence in the practice of the law as it is, and the further
advancement they look for is the reward of party devotion, they
R
236 HISTORY OF “THE LAW REPORTS.”

cannot be expected eagerly to initiate, or even heartily to support,
measures of general legal improvement. What one suggests the others
naturally carp at, Government bills are certain to have holes picked
in them by all the opposition lawyers, and individual crotchet or
private interest is thus made to regulate the apparent course of the
Bar in reference to all suggested reforms. We believe that this does
it great injustice, as it certainly does the country much injury. We
believe that the collective opinion of the Bar would be found in
England, if fairly tested, to be, as the opinion of the Profession has
been found in other countries, in favour of the abandonment of
useless forms and exploded fictions, and on the side of large and
liberal legal reform. And we cannot over-estimate the benefit to
the country from the adhesion of the Profession to that course, and
from the careful and friendly consideration by it of the measures
which may be suggested for carrying into effect the adaptation of law
to modern ideas and requirements. Many legal abuses, in spite of the
inertia of the Profession, have been of late years swept away. But
many still remain, which, we cannot doubt, would speedily disappear
before the free discussion of an independent Bar, enlightening, leading,
and aiding public opinion. Therefore, we rejoice at this first appear-
ance of a desire in the Profession to take up so honourable and useful
a position. What it now does will serve as a precedent and, we hope,
as an encouragement to the like treatment of cognate questions.

The point to be considered on Wednesday may, indeed be said to
have compelled this effort towards its solution through the influence
of something like despair. The Reports of decisions already, as the
Lord Chancellor told the House of Lords, amount to nearly 1200
volumes, and every year sees an addition of some two dozen more.
Every Court has its quasi-authorized Reporter, but Free Trade has
long ago asserted its powers in this matter as in everything else. The
authorized Reporters were sometimes careless or dilatory ; a rival would
anticipate or correct them, or supply their omissions; and the J udges
felt they could not shut out the light by refusing to listen to what
was reported by a barrister equally qualified with the semi-official
note-taker. So the field being thus opened, we have now about half-
a-dozen series of current Reports of each Court, and the same reasons
which brought these into being compel their purchase and use. Here,
in the first place, is a very great and useless pecuniary expense, and a
very great waste of time and labour in perusing them; but these are
the least of the evils they cause. Reports of the same case may
honestly differ, as each Reporter differently estimates the importance
of the several circumstances of which it is made up. This disagree-
ment raises one of the most puzzling questions which can perplex a
Court, and it need not be said that when a Court is perplexed the law
HISTORY OF “THE LAW REPORTS.” 237

must be considered unsettled, and no barrister can advise his clients
with confidence. The rivalry amongst the several series leads to great
prolixity, for each fears to omit facts which, however unimportant,
may appear in another book, and lead to its being preferred. And
this prolixity is a necessary source of doubt and confusion in the law,
for it places immaterial facts on the same footing with those which are
material, and renders the extracting of any general rule from the
decision almost an impossibility. Lastly, the evils react upon each
other, for as it is not every one who goes to law with an honest
purpose, nor every lawyer who desires only an honest result, a dis-
crepancy between two reports of a hostile precedent is eagerly sought
out to invalidate it, and a report full of minute details is preferred,
because in some of the particulars there may be found a distinction
between the precedent and the case to which it is to be applied. Thus
the demand is sufficient to support an objectionable system in one
series, and the system inevitably spreads and infects the whole.

What may be the appropriate remedy for this crying evil is a
difficult question, the answer to which we shall not presume to
anticipate. Mr. Daniel, Q.C., who has taken the chief initiative in
the present movement of reform, has published a pamphlet in which
he advocates the appointment of absolutely official Reporters in each
Court, with the observance of an absolute rule that no other Reports
shall be cited. We doubt the possibility of enforcing such a rule, and
experience seems against it. But we shall await with interest the
opinion which the Bar may express upon the proposal, or the sugges-
tion of substitutes for it. So many of its members are concerned in
the business or trade of reporting, in addition to the constant use
which all make of the Reports, that it is peculiarly competent to
inform us of the difficulties and prospects of success in any scheme
which may be offered. But the other branches of the legal profession,
a well as the public, have also a stake in the discussion, and we shall
therefore be glad to learn what the Bar has to say.

(From “‘ The Daily Telegraph,” Nov. 30, 1864.)

No very large share of public attention will have been attracted to
the subject discussed in the Hall of Lincoln’s Inn on Monday. The
conclusion will be generally adopted that the world at large has no
concern with so technicaland dry a topic as LawReporting, and that the
lawyers may well be left to settle their grievances among themselves.
Nay, more, there will probably be persons hard-hearted enough to
rejoice in the discovery that lawyers do suffer under grievances—that
the troublers of mankind are themselves in trouble. This short and
summary method of disposing of the subject involves, however, a
R 2
238 HISTORY OF “THE LAW REPORTS.”

considerable amount of error. Bad law-reporting means uncertain
law ; and we all know the mischief of that. The City merchant who
has quarrelled with his partner, the country gentleman who has a
refractory tenant, the parson who is engaged in a parochial con-
troversy, can all understand that if the law were perfectly clear
their difficulties would never have arisen, or might be easily adjusted.
It is uncertainty as to their civil rights and obligations which
occasions the majority of litigious disputes, and nine-tenths of the
litigants would never dream of “ going to law” if the response of that
oracle could be clearly known beforehand. Therefore the debate of
Monday last concerns everybody who is liable to be involved in a
suit or action—that is to say, almost all her Majesty’s subjects.

The lawyers now complain, as the rest of mankind have been com-
plaining for centuries, that our code has grown too voluminous to be
within the power of human comprehension. The inability of laymen
to master the vast.science is an evil with which we have long been
familiar ; but it is somewhat startling to hear that it hag outgrown
the grasp of the learned profession itself. A fine legal fiction imputes
to every individual a complete and accurate knowledge of the whole
mass of jurisprudence, and forbids any person to escape obligations by
pleading ignorance of them. We now find, not only that the maxim
is not true, but that it is the exact opposite of truth. Instead of
everybody knowing the law, nobody knows it. The Chancery
barrister studies equity, the special pleader the mysteries of pleading,
the conveyancer the mysteries of titles and assurances, the criminal
practitioner the penal code; but not one of these men pretends to be
versed in the business of the others, or even to have a complete
acquaintance with his own. How is this? The answer is, that law
has developed and propagated itself with such amazing fecundity that
the most assiduous industry cannot trace all its ramifications. Its
growth is prodigious, like that of the aquatic weed which in some of
our eastern counties has choked up rivers and converted navigable
streams into stagnant morasses. The manufactories of law are
numerous and their activity unwearied. First, there is the statute-
book—the net result of the public labours of Parliament year after
year. The volumes in which the general resolutions of the great
council of the nation are annually recorded constitute a vast and
ponderous series; but even this mass is insignificant in comparison
with the “judge-made law,” the code of juridical decisions. We have
six Chancery courts, three Common Law Courts, and several Courts
of Appeal, besides other tribunals, sitting day by day during a great
part of the year; and all these seats of justice contribute to swell the
mighty flood of English jurisprudence. Every oue of their decisions
constitutes a precedent which, so long as it is not overruled, binds
NISTORY OF “THE LAW REPORTS.” 239

Courts of co-ordinate jurisdiction in analogous cases. Of course, many
of the judgments contain no new principles, and are therefore omitted
from the published legal Reports. But, notwithstanding these omis-
sions, the multitude of reported cases is far too great. Decisions
which merely re-affirm settled points, and really contribute nothing
to the stock of legal knowledge are incorporated in these technical
publications. Another complaint is, as the law-publishers pay the
Reporters according to the length of their contributions, the latter
have an inevitable tendency to amplification and the insertion of
impertinent matter. Nor are these the only evils. There are rival
series of Reports, and thus it happens that the same decision is reported
several times over; and as neither of the versions is strictly authentic,
discrepancies between them occasion much trouble both to the Bench
and the Bar.
We repeat that this subject, technical though it be, is one of public
interest. It is as important for us that lawyers should have good
reports as that surgeons should possess good instruments. Litigation
is not much less painful than surgery, and no argument is needed to
prove that humanity gains by the keenness and exquisite ingenuity
of vivisection. Moreover, the lawyers themselves, even though they
are the natural enemies of the human race, deserves some little pity.
They complain that their grievance is intolerable; that the tax upon
their brains which the fecundity of the law imposes is greater than
they can bear; and not only is the complaint reasonable, but it so far
affects the public interest that we may entertain a legitimate desire
to see the evil abated. The most hopeful scheme for this purpose
appears to be that of entrusting the management and supervision of
the Reports to some central and impartial authority, instead of leaving
it, as at present, entirely in the hands of the law publishers. It may
be reasonably assumed that a committee appointed by the Judges and
great legal bodies would regard the intrinsic excellence of the Reports
as more important than their mercantile success; whereas the book-
sellers must regard the subject almost exclusively in the commercial
aspect. The common objection to the proposed scheme is that it
savours of monopoly ; but the principle of free trade, like all other
good principles, may be used inappropriately. It has been happily
remarked by an eminent authority on this subject, Mr. George Sweet,
that the question is “not how to secure the most abundant and the
cheapest supply of a commodity, but how to obtain one single article
for a specific service in the best and most convenient form.” From
the conflict of opinion at the Lincoln’s Inn meeting, however, it is
easy to see that the scheme of a superintending council is at present
in a very crude state. A multitude of questions arise as to the
functions and powers of this body. Shall the publications accredited
240 HISTORY OF “THE LAW REPORTS.”

by it possess exclusive authority, and alone be cited before the Judges ;
or shall rival publications be tolerated? Shall compensation be
allowed to the displaced Law Reporters? How are the necessary
expenses of the authorized publication to be guaranteed? These and
many other questions warmly discussed by the Bar are matters of
detail, and their importance, though great, is not absolutely vital.
The main principle to be established is that of a competent, dis-
interested supervision of the Reports. When once that point shall
be thoroughly settled, it appears to us a vast stride will have been
taken towards effecting the much-needed reform.

[From the Derby Reporter of Dec. 30, 1864. ]

At the first blush there are few subjects more uninviting to the
provincial journalist or to his readers than that of Law Reporting.
And yet, when we take into consideration the vast number of the
public who necessarily are compelled to resort to our Courts of Law
and Equity, it is manifest that a correct report of the decisions of
those Courts, by which the interests of future litigants are bound, is
of paramount importance. To exemplify this more clearly ; first of
all, we have our Acts of Parliament, the lea scripta of the land, which,
being printed at the expense of the nation and by the authority of
Parliament, her Majesty’s lieges are bound to obey. But there is also
the lex non scripta, the unwritten law, composed as it is of the decisions
of our Judges, and which, as we have intimated, are precedents and
binding on future litigants, but which have hitherto been published
in the most unsatisfactory manner.

We are led to make these observations on the perusal of two very
able letters addressed by Mr. Daniel, Q.C., to her Majesty’s Attorney-
General on the present system of Law Reporting with its attendant
evils, and a scheme recommended by the Committee appointed by
the Bar for the remedy of them. It affords us pleasure to refer to
these able letters, not only on account of their intrinsic merit, but
because we have the honour of knowing Mr. Daniel, who was formerly
a member of the Midland Circuit, but who long since retired from it
to practise, as we hope, in the more lucrative branch of the Profession
at the Chancery Bar. = * = *

The evils of the system of Law Reporting to which Mr. Daniel’s
first letter applies, are those which consist in the preparation and
publication of the Reports which, from the authority attached to them
as precedents, are considered as “the evidence of the unwritten
‘law.” It is beside our purpose to go into the abtruse details, so fully
propounded in the letters before us; but we may briefly refer to the
present system and its apparent evils. Mr. Daniel points out that
HISTORY OF “THE LAW REPORTS.” 241

the present system of Law Reporting is founded upon the notion that
itis the proper subject of commercial enterprise, and may be conducted
upon the principles of Free Trade, with this proviso, that the Reports
be prepared and published under the name of a barrister. These
Reports, Mr. Daniel shews, are divided into the authorized or privi-
leged reports, and the unauthorized or competitive Reports. He states
that this nomenclature has become singularly inaccurate—that
whereas the authorized Reports have been published at most irregular
intervals, and sometimes with a discontinuance of the series, the
unauthorized Reports have been published very regularly, their regu-
larity being the essence of their commercial success, which would be
a virtue if authority, quality, and cost were commensurate; in fact,
as we make it out, Mr. Daniel would have the best of the unauthorized
Reports improved in quality and published by authority. Now it
would seem that the present system of authorized Reports involves
upon the legal profession and the public a dilatory and incomplete
article at a very high cost ; whilst, on the other hand, the unauthorized
Reports, of which there are about six or seven publications rivalling
each other in the eager race for competition, produce quantity and
not quality, or in other words, the publication of cases valueless in
themselves as precedents, and which afford but a scanty remuneration
to Reporters and publishers.

When we revert to the fact already mentioned, that Acts of Parlia-
ment are printed by authority, is it not apparent that the judicial
decisions of our Courts should be published at the cheapest rate, but
with equal authority, and the best article for money’s worth? It
were, perhaps, to be desired that Government would undertake the
publication of an authorized edition of the judicial decisions of our
Courts; but this seems out of the question. The result, however, of
Mr. Daniel’s labours has been that, at two meetings under the pre-
sidency of the Attorney-General, the Bar of England have denounced
the evils of the present system, and have adopted a comprehensive
plan for their remedy. The scheme of the Committee is now before
the Judges and the Inns of Court for their consideration, and the
legal profession as well as the public generally will look forward
with interest to the result. It is not within our province to enter
into the details of the remedies suggested, suffice it to say that the
scheme recommended by the Committee and adopted by the Bar is
set out as an appendix to Mr. Daniel’s second letter.

The proprietors of the unauthorized Reports, and others, object to
Mr. Daniel’s theory, on the ground that he would create a monopoly
subversive to the interests of Free Trade. We cannot altogether
indorse Mr. Daniel’s political opinions as enunciated by him a few
years since, but we believe him to be a thorough Free Trader on
242 HISTORY OF “THE LAW REPORTS.”

principle, and with reference to the subject now under consideration
he argues in reply to the oppositionists that monopoly and free trade
have nothing to do with the question. He says, and we are in entire
agreement with him :—

A strong argument against the propriety of permitting Law Reporting to be
an object of commerce may be deduced from the results. The principles of
Free Trade, when properly applied by individual enterprise to a legitimate
object of commerce, never fail, after a fair trial, to produce as a result, either
increase in the quantity or improvement in the quality of the article to be con-
sumed without increase of cost; or an article of consumption equal in quantity
or quality, or both, at a reduced cost. But if there be neither increase in
quantity nor improvement in quality, nor reduction in cost, then are we not
justified in concluding that the principles of Free Trade have been abused by
an attempt to apply them to an object to which they are not properly applic-
able? Now the result of the experience of the last thirty years, in the applica-
tion of the principles of free trade, through individual enterprise, to Law Re-
porting as an object of commerce, has been by an increase in quantity to deterio-
rate the articles to be consumed, and at the same time to increase the cost; to
produce results the very opposite of those which the principles of free trade,
when applied to an object to which they are properly applicable, never fail to
secure.

Cordially reciprocating as we do these principles of free trade, we
could wish that some other of Mr. Daniel’s political opinions were
more in unison with our own; nevertheless we should be glad to see
him occupy a seat in the new Parliament, where, as an independent
member, he might by his ability, industry, and eloquence, enunciate
those doctrines of political science to which he has evidently given
the most careful consideration. Be this, however, as it may, should
Mr. Daniel’s efforts in this important matter of Law Reporting be
crowned with success, and should Lord Westbury’s great scheme for
consolidating all the Courts of Law and Equity in a Palace of Justice
contiguous to the Inns of Court be carried, then to tnese two equity
lawyers will be willingly awarded the praise due to their valuable
and disinterested exertions.
HISTORY OF “THE LAW REPORTS.” 243

FOURTH DIVISION.

The steps taken after the 28th of November, 1864, and up to the 2nd
of November, 1865, the day on which “ The Law Reports” were
commenced,

In pursuance of the resolution passed at the meeting of the Bar
on the 28th of November, 1864, the Attorney-General (Sir
Roundell Palmer) communicated the resolution adopting the
Report to the Lord Chancellor, the Law Lords, Her Majesty’s
Judges of the Courts of Law and Equity, the Benchers of the
several Inns of Court, the Society of Serjeants’ Inn, and the
Council of the Incorporated Law Society, with a request that they
severally would be pleased to further the objects of the Scheme.

During the year 1864 Sir Roundell Palmer was Treasurer of
Lincoln’s Inn. An adjourned meeting of the Council of the
Benchers of the Inn was held on the 14th of December, 1864,
at which twenty-six Benchers, including Lord St. Leonards, were
present; the Attorney-General, as Treasurer, presiding. The
minutes of the Council contain the following entry :—

“The Treasurer made a communication to this Council on the
“subject of Law Reporting to the following effect. Ata meeting
“of the Bar held in Lincoln’s Inn Hall, on the 2nd of December,
“1863, it was resolved:—Ist. That the present system of pre-
“paring, editing, and publishing Reports of judicial decisions
“in this country requires amendment. 2nd. That a Committee
“(then named) should be appointed to prepare a plan for the
“amendment of the present system of preparing, editing, and
“publishing Reports of judicial decisions, and report thereon at a
“future meeting. The Committee appointed under these resolu-
“tions met and considered the subject referred to them, and on
“the 14th of June last made their Report. Ata subsequent meeting
“of the Bar, held in Lincoln’s Inn Hall (by adjournment from the
“st of July last), on the 28th of November, it was resolved :—
“(1.) That the Report of the Committee be adopted. (2.) That
“the Attorney-General be requested, as President of the meeting,
244 HISTORY OF “THE LAW REPORTS.”

“to communicate the resolution adopting the Report to the Lord
“Chancellor, the Benchers of the several Inns of Court, the
“ Society of Serjeants’ Inn, and the Council of the Incorporated
“ Law Society, with a request, on behalf of the meeting, that they
“severally will be pleased to further the objects of the Scheme,
“In compliance with the latter resolution the Report and the
“resolution adopting it are now communicated to the Benchers
“of this Society, and, on behalf of the Gentlemen of the Bar
“who passed the resolution the Treasurer expresses their hope
“that the Benchers may be pleased to approve and further the
“ object of the Scheme embodied in the Report. Mr. Amphlett
“ gave notice that he would make a motion in this matter at the
“Council to be held on the first day of Hilary Term, 1865, and
“the consideration of the Treasurer's communication was post-
“ poned to the same Council.”

Sir Roundell Palmer’s year of office as Treasurer expired before
the first day of Hilary Term, 1865, and he was succeeded in the
Treasurership by Mr. Loftus Tottenham Wigram, Q.C.

On the 11th of January, 1864, the first day of Hilary Term,
Mr. Amphlett, as Chairman of the Bar Committee, moved as
follows :—

Ist. That this Society is willing to concur with the other Inns
of Court in giving the guarantee mentioned in the 4th
rule of the Scheme recommended by the Committee in
their Report, and, in the event of the other Inns of Court
so concurring, to appoint two members of the Council
proposed by the first rule of the Scheme.

2nd. In the event of the above resolution being adopted; that
such resolution be communicated to each of the other
Inns of Court with a request that they be so kind as to
communicate to this Society their own intentions on
the subject, and that in the meantime the further con-
sideration of the matter by this Society be adjourned.

The motion gave rise to an animated discussion, in which Lord
St. Leonards took the leading part. His Lordship deprecated
the scheme as one involving trading arrangements,—namely the
necessity of appointing a manager, and agents to canvass for
subscribers and collect subscriptions, thereby incurring the risk
HISTORY OF «THE LAW REPORTS.” 245

of bad debts and necessitating the hiring a shop or office for
business.

In answer to these objections it was pointed out to his Lord-
ship by Mr. Amphlett that the Scheme was to be supported by
subscriptions paid in advance, and that therefore none of the
difficulties pointed out would arise. Thereupon Lord St. Leonards
replied that he did not believe that subscribers would pay in
advance, and that the whole Scheme would prove an abortion, and
he should be sorry to see the Society have anything to do with it.
There were several supporters of the Scheme present, among them
were the Attorney-General, V.C. Wood, Sir FitzRoy Kelly, Mr.
Selwyn, and myself—there were others present, who, if not
opponents, were not supporters of the Scheme. But the Council
broke up before any resolution was come to, and the further dis-
cussion necessarily stood over to the next adjourned Council, which
would probably not be held until the middle of February. How-
ever, the day after the Council, Lord St. Leonards wrote to the
Treasurer stating that when he urged his objection to the Scheme
he was not aware that it had been approved at a meeting of the
Bar, called and presided over by the Attorney-General; and he
desired therefore to withdraw all his objections, and leave the
matter to be dealt with by the Benchers without any further
opposition on his part.

Upon the receipt of this communication the Treasurer called a
special Council to be held on the 16th of January, 1865, for the
express purpose of dealing with the Attorney-General’s com-
munication, and Mr. Amphlett’s motion. The Council was held
accordingly, and was attended by twenty-two members of the
Bench. But Lord St. Leonards did not attend, and after full
discussion the result arrived at is thus entered on the minutes :—

Upon taking into consideration the communication made to

this society by the Attorney-General on the subject of
Law Reporting, and on motion on the same subject by
Richard Paul Amphlett, Esq..—Resolved, that this Society
is willing to concur with the other Inns of Court in giving
the guarantee mentioned in the fourth rule of the Scheme
recommended by the Committee in their Report, and, in
the event of the other Inns so concurring, to appoint two
246 HISTORY OF “THE LAW REPORTS.”

members of the Council proposed by the first rule of the
scheme.

Ordered that this resolution be communicated to each of
the other Inns of Court, with a request that they will be
so kind as to communicate to this Society their own in-
tention on the subject, and that in the meantime the
further consideration of the matter by this Society be
adjourned.

This resolution was duly communicated to the other Inns of
Court—the Inner Temple, the Middle Temple, Gray’s Inn and
Serjeants’ Inn—and, in addition, to the Incorporated Law
Society—

The Middle Temple, at a Parliament holden on the 20th day of
January, 1865—

Resolved that this Society is willing to concur with the
other Inns of Court in giving the guarantee mentioned in
the 4th rule of the Scheme recommended by the Com-
mittee in the Report, and, in the event of the other Inns
so concurring, to appoint two members of the Council as
proposed by the 1st rule of the Scheme,

Ordered that this resolution be communicated to each of the
other Inns of Court, with a request that they will be so
kind as to communicate to the Society their own intentions
on the subject, and that in the meantime the further
consideration of the matter by this Society be adjourned.

Gray’s Inn made the following communication to Lincoln’s
Inn :— :

At a Pension held the 25th day of January, 1865, upon
taking intu consideration (pursuant to adjournment) the
communication made to this Society by the Attorney-
General on the subject of Law Reporting, and also upon
reading and considering the resolutions of the Honourable
Societies of Lincoln’s Inn and the Middle Temple respec-
tively upon the subject—It is resolved, That this Society
regrets that they have not sufficient confidence in the
Scheme to induce them them to join init. Ordered that
this resolution be communicated to each of the other Inns
of Court.
 

HISTORY OF “THE LAW REPORTS.” 247

At the Inner Temple on Friday, the 27th of January, 1865,
resolutions were passed in identically the same terms as those
passed by the Middle Temple on the 20th of January, and which
were identical with those of Lincoln’s Inn.

At a meeting of the Council of Lincoln’s Inn held on the 31st
of January, 1865, the following proceedings took place as recorded
on the minutes :—

Read the communications received from the other Inns of
Court on the subject of Law Reporting, viz., resolution of
the Honourable Society of the Middle Temple, dated the
20th of January instant, resolution passed by the Honour-
able Society of Gray’s Inn on the 25th January, and
resolution of the Honourable Society of the Inner Temple,
dated 27th of January.

Resolved 1: That while regretting the determination of
Gray’s Inn not to join in the Scheme this Society is
willing to concur with the Inner Temple and Middle
Temple alone in giving the guarantee mentioned in the
4th rule of the Scheme—each of the three Societies
guaranteeing two-sevenths of the £500 per annum, and to
nominate two members of the Council proposed by the
Ist rule.

2. That at the adjourned Council to be held on Wednesday
the 15th day of February next this Society elect two
members of the Council under rule 1.

Ordered that these resolutions be communicated to the
other Inns of Court and Serjeants’ Inn and the Incor-
porated Law Society.

Resolutions in similar terms were shortly afterwards passed by
the Inner Temple and the Middle Temple, and duly communicated
to Lincoln’s Inn.

On the 15th of February, 1865, at a Council of the Benchers
of Lincoln’s Inn, the following was entered on the minutes :-—

“ Ordered that Sir FitzRoy Kelly and William Thomas Shave
Daniel, Esq., be appointed members of the Council on Law
Reporting pursuant to rule 1 of the Scheme of Reporting recom-
mended by the Committee.

“Ordered that this appointment be communicated to the other
248 HISTORY OF “ THE LAW REPORTS.”

Tnns of Court, and to Serjeants’ Inn, and to the Incorporated Law
Society.”

On the 16th of February, 1865, the Inner Temple appointed
William Forsyth, Esq., Q.C., and George Markham Giffard,
Esq., Q.C., to be members of the Council on Law Reporting in
the same terms as Lincoln’s Inn.

At a meeting of the Incorporated Law Society held on the
same 16th day of February the following resolution was passed.

Resolved, Mr. William Strickland Cookson and Mr. William
Williams be appointed by the Incorporated Law Society
members of the Council to be formed for the management
and control of the Reports recommended by the Committee
appointed at the meeting of the Bar held in Lincoln’s Inn
Hall on the 2nd of December, 1868, pursuant to rule 1 of
the Scheme of Reporting recommended by the Committee.

2. That this resolution be communicated to the Lord
Chancellor, the Inns of Court, Serjeants’ Inn, and the
Attorney-General.”

And at a Parliament of the Middle Temple holden on the 22nd
of February 1865, Thomas Webbe Greene, Esq., Q.C., and John
Burgess Karslake, Esq., Q.C., were appointed members of the
Council on Law Reporting in terms similar to the appointment
made by Lincoln’s Inn and the Inner Temple respectively, and
afterwards at a Parliament held on the 2st of April, 1865, the
Middle Temple agreed to join in the guarantee mentioned in the
4th rule of the Scheme to the extent of two-sevenths of the £500,
the limit there mentioned.

After the resolutions passed by the Societies of Lincoln’s Inn
and the Inner Temple had been communicated to the Incor-
porated Law Society, and their resolution, appointing Mr. Cookson
and Mr. Williams as their representative members of the Council
on Law Reporting, had been communicated to and acknow-
ledged by Lincoln’s Inn, the Incorporated Law Society, through
Mr. Williams, at that time their Vice-President, by a letter ad-
dressed to the Attorney-General, intimated their wish to join in
the guarantee to be given in pursuance of the 4th rule of the
Scheme, and with that view Mr. Williams, with the sanction of
the Attorney-General, had an interview with me upon the subject
HISTORY OF “ THE LAW REPORTS.” 249

and received from me all necessary explanations, and afterwards,
on the 25th of February, addressed to me a letter of which the
following is a copy and which is entered on the minutes of the
Council :—

Sir,

I communicated to the Council of this Society (the Incorporated
Law Society of the United Kingdom) at their meeting on the 24th
inst., the result of the interview which I had with you after the date
of my letter of the 17th inst. addressed to the Attorney-General, and
I have now the honour to acquaint you that the Council consider
that as it is proposed that the members of their body should, together
with members of the several Inns of Court, constitute the Council of
Management of Law Reporting, it is only just and proper that the
Council of this Society should guarantee a suitable proportion of the
office and other expenses of the undertaking. I have therefore, on
behalf of the Council of this Society, to state that this Society will
concur with the Inns of Court in guaranteeing the payment of the
office and other expenses of the Council of Law Reporting, in the same
proportion as the several Inns of Court who may be represented by
two members in the intended Council of Law for Law Reporting.

In giving this guarantee, the Council of this Society understand,
from the explanation which I was enabled to furnish after my con-
versation with you, that the amount for which this Society will
become liable will not exceed £150 per annum, and that the continuance
of the guarantee will be brought before the Council of this Society, as
well as the guaranteeing Inns of Court, for reconsideration, at a period
not later than two years from the present date.

Ian, Sir,
Your obedient servant,
WILLIAM WILLIAMS,
Vice-President.
W. T.S. Daniel, Esq., Q.C.

The Attorney-General (Sir R. Palmer), the Solicitor-General
(Sir R. P. Collier), and the Queen’s Advocate (Sir Robert Philli-
more), gave their assent to act as e#-officco members of the
Council.

The first meeting of the Council as now formed was held at
the chambers of Sir FitzRoy Kelly on the 25th day of February,
1865, and the following is a copy of the minutes as entered :—

“ First meeting, held at the chambers of Sir FitzRoy Kelly, on
the 25th day of February, 1865.
250 HISTORY OF “ THE LAW REPORTS.”

“Letters convening the meeting were addressed by Mr. Daniel
to the Attorney-General, the Solicitor-General, the Queen’s
Advocate, and the other members of the Council.

“« Present :—

Sir FitzRoy Kelly. Mr. Giffard.
Mr. Daniel. Mr. Greene.
Mr. Forsyth. Mr. Cookson.

“Read letters from the Solicitor-General and Mr. William
Williams stating their inability to be present at the meeting.

“Read letter from the Vice-President of the Incorporated Law
Society, dated the 25th of February, 1865, in reference to the
Society’s offer of guaranteeing the payment of the office and
other expenses of the Council for Law Reporting, in the same
proportion as the several Inns of Court represented by two
members on the Council.

“ Ordered, That the offer be accepted.

“ Resolved,—

“That Sir FitzRoy Kelly be appointed permanent Chairman
of the Council ;

“That Mr. Daniel be appointed permanent Vice-Chairman ;

“That at all meetings three shall form a quorum, and the
Chairman presiding shall have a casting vote ;

“That Mr. James Thomas Hopwood be appointed Secretary,
pro tem. The salary of the Secretary to be fixed by the Council
hereafter ;

“That the Secretary shall summon all meetings by circular
addressed to the ex-officio and other members of the Council.

“The Chairman alone, or the Vice-Chairman together with
any other member, may call a meeting of the Council.

“The notice of any meeting shall state the object.

“ Ordered, that the draft preliminary address to the Profession
prepared by Mr. Daniel, be printed and sent to each member of
the Council for consideration.”

The next meeting of the Council was held on the 4th of March.
Sir FitzRoy Kelly was not present, and I took the chair. The
draft Report was then submitted for consideration, but before
entering on that subject Mr. Karslake raised a preliminary objec-
HISTORY OF “ THE LAW REPORTS.” 251

tion to the competency of the Council to do any act in its quasi-
corporate character, on the ground that the council contemplated
by the Bar Scheme was to comprise one member each from Gray’s
Inn and Serjeants’ Inn, and Gray’s Inn had declined to send a
member, and Serjeants’ Inn had made no communication upon
the subject, and the Council was, therefore, not formed. The
objection raised by Mr. Karslake, as it afterwards appeared, was
not concurred in by any other member of the Council nor by
either of the ex-officio members, but I suggested that, as, if the
objection prevailed it would be destructive of the Bar Scheme, it
should be entered on the minutes, and the question of its validity
be adjourned to a Council to be specially summoned for and held
on the following Monday—the 6th of March. This was agreed
to. The meeting was held: I was again in the chair. And the
entry on the minutes is as follows :—

“An address prepared by the Vice-Chairman was taken into
consideration. Mr. Karslake raised the objection that by the
resolution of the Middle Temple, under which he and Mr. Greene
were appointed members of the Council of Law Reporting, it was
contemplated that they would be members of a council consti-
tuted in pursuance of the first clause of the Scheme of the Bar
Committee, and that, as the societies of Gray’s Inn and Serjeants’
Inn had not appointed members of the Council, there was no
properly constituted Council which could act, and therefore the
address could not be issued as coming from that body.”

The respect that was due to Mr. Karslake, and the responsi-
bility that was cast upon me as Vice-Chairman, made it my duty,
as I conceived, at once to communicate with the Chairman, Sir
FitzRoy Kelly, and I so informed Mr. Karslake, and he agreed to
meet me at Sir FitzRoy’s chambers in the afternoon on the 4th of
March (Saturday), if an appointment for that purpose could be
made. An appointment was made, and we met. Sir FitzRoy at
once treated. the objection as untenable. He said that the ap-
pointments made by the three Inns of Court and the Incorporated
Law Society had been made with a full knowledge that Gray’s
Inn refused to concur, and had stated the ground of its refusal,
and that Serjeants’ Inn had not taken any notice of the commu-
nication, the reason being well understood to be that the Judges

8
252 HISTORY OF “ THE LAW REPORTS.”

desired to be absolutely independent, and it would stultify the
Bar Committee to yield to the objection. Mr. Karslake never-
theless adhered to his objection ; and I requested Sir FitzRoy to
attend the meeting on Monday and take the chair, but he stated
he could not possibly do so, as his engagements in Court would
prevent him. The meeting on the 6th of March was duly held:
Both Mr. Karslake and Mr. Greene were present. Mr. Karslake’s
objection was still earnestly insisted upon by him, but his col-
league, Mr. Greene, did not concur; and to prevent the collapse
of the Bar Scheme, and without coming to a decision upon the
objection, it was suggested, I believe by Mr. Greene, that perhaps
Mr. Karslake’s difficulty would be removed if the address were
issued by Sir FitzRoy Kelly as a preliminary address, and that no
reference be made to the Council being duly constituted. This
was assented to by the meeting, though not by Mr. Karslake, and
it was arranged that the address should be altered accordingly,
and taken into consideration at the next meeting, which was
appointed to be held on the following Saturday, the 11th of
March. This meeting was held accordingly, and after reading a
letter from Mr. George Markham Giffard, dated the 11th of
March, approving the address as altered, and a letter from Mr.
Karslake, addressed to Mr. Greene, stating his disapproval of the
address as amended, it was resolved that the preliminary address
and circular as settled and amended be adopted. Ordered: that
5000 copies be printed and issued under the superintendence of
the Vice-Chairman and Mr. Cookson. A further number were
afterwards printed and issued, amounting altogether to 14,000.
The following is a copy of the address :-—

LAW REPORTING.
PRELIMINARY ADDRESS,

Ara meeting of the Bar held in Lincoln’s Inn Hall on the 2nd of
December, 1863, convened by the Attorney-General Sir Roundell
Palmer, Knight, M.P., in pursuance of a requisition signed by 380
practising Members of the Bar, and presided over by him, it was
resolved, That the present system of preparing, editing and publishing
Reports of judicial decisions in this country requires amendment. At the
sume meeting a Cummittec was appointed to prepare a plan of
HISTORY OF “« THE LAW REPORTS.” 253

amendment, to be submitted to a future meeting of the Bar, for
their consideration. The Committee consisted of the under-mentioned
Barristers, namely,

Sir R. P. Courier, Knt., M.P., | The Hon. Gzorce Denman, Q.C.,

Solicitor-General. M.P.
Sir Rosr. Puitimorz, Knt., | Gzorce Mexuisu, Esq., Q.C.
Queen’s Advocate. James Dickinson, Esq.
Sir FitzRoy Ketty, Knt., Q.C., | Josuua Wituiams, Esq.
MP. GeorcE Sweet, Esq.
W.T.S. Danizn, Esq., Q.C. ALEX. Putiine, Esq., now Mr.
Montaaue E. Smits, Esq., Q.C. Serjeant Puuiine.

M.P., now one of Her Majes- | Groree Drucz, Esq.
ty’s Justices of the Common | G. W. Hasrinas, Esq.

Pleas. Henry Matrtuews, Esq.
C. Jasper SeLwyn, Esq., Q.C., | Naru. Linpey, Esq.
M.P. J. R. Quan, Esq.

Sir Hues M. Carrns, Q.C.,M.P. | Atrrep WILts, Esq.
R. Pau, AmMPHLETT, Esq., Q.C. Joun WESTLAKE, Esq.
F. Vaueuan Haweins, Esq.

 

The Committee made their Report on the 14th of June, 1864,
recommending a scheme containing a plan of amendment. The
Report was signed by the undermentioned members of the Com-
mittee :-—

R. Pau, Ampuuett, Esq., Q.C., | Mr. Serjeant Putiine.
Chairman of the Committee. | James Dicxiyson, Esq.
Sir Rosr. Puitumorze, Knt., | Gzorce Druce, Esq.
Queen’s Advocate. G. W. Hastines, Esq.
Sir FirzRoy Ketty, Knt., Q.C., | N. Luypuey, Esq.
M.P. J. R. Quain, Esq.
W. T. 8. Dante, Esq., Q.C. ALFRED WILLS, Esq.
C. Jasper SELWwyn, Eyq., Q.C., | Joun WesTLake, Esq.
M.P. F. Vaueuan Hawkins, Esq.
Sir Hueu M. Carrys, Knt., Q.C.,
M.P.

 

A meeting of the Bar was held in Lincoln’s Inn Hall, under the
presidency of Sir Roundell Palmer, as Attorney-General, on the 1st of
July, 1864, to receive and consider the Report. This meeting, after
some discussion, was adjourned until November, in order that in the
meantime the Report and Scheme might be fully considered by the
Bar.

8 2
254 HISTORY OF “« THE LAW REPORTS.”

By the Scheme it was proposed that a set of Reports in the Superior
Courts of Law and Equity and the Appellate Courts should be pre-
pared and published under the management of a Council, to be
appointed as follows:—two by Lincoln’s Inn; two by the Inner
Temple; two by the Middle Temple; one by Gray’s Inn; one by
Serjeants’ Inn; two by the Incorporated Law Society, and in a certain
event which may not arise, two by the Lord Chancellor.

The Scheme also proposed that the ATTORNEY-GENERAL, the SoLicitor-
GenbraL, and the Quren’s Apvocate for the time being should be ex-
officio members of the Council.

On the 28th of November, 1864, a further meeting of the Bar was
held, under the presidency of Sir Roundell Palmer, as Attorney-
General, when the Report, having been considered, was adopted.

In Hilary Term, 1865, the Report and Scheme were submitted to
the several Inns of Court, Serjeants’ Inn, and the Incorporated Law
Society for their consideration; and the Benchers of Lincoln’s Inn,
the Inner Temple and Middle Temple, and the Incorporated Law
Society, have recently appointed members of the Council, in conformity
with the Scheme.

Gray’s Inn has declined, and Serjeants’ Inn has not at present decided
to appoint members of the Council.

The ex-officio members are—

Tue ATTORNEY-GENERAL, Sik RouNDELL Paumer, Kr., M.P.
Tue Soriciror-GENEvAL, Siz Rosert P. Cotuier, Kr., M.P.
Tae Queen’s ApvocaTs, §1r Ropert Purtumore, Knr.

The elected members are—
Sr FitzRoy Ketry, Kyr., M.P., Q.C.
W. T. S. DANIEL, Esq, Q.C.

\ Lincoln's Inn.
WILiAM Forsytu, Esa, Q.C., |

Grorce Markuam GIFFARD, Esg., Q.C Inner Temple.

T. W. GREENE, Hsq., Q.C.
J. B. Karsiaxs, Ese, Q.C.

W.S. Cooxson, Esq. (Firm—Clayton, }
Cookson & Wainewright), 6, New |
Square, Lincoln’s Inn.

Witiiam Wi.urams, Eso., Vice-Presi- Incorporated baw
dent of the Incorporated Law Socal
Society (Firm—Currie & Williams),
Lincoln’s Inn Fields.

Middle Temple.

 
HISTORY OF “ THE LAW REPORTS.” 255

It is now proposed to invite the assistance and co-operation of the
several branches of the Profession, for the purpose of accomplishing
the object involved in the resolutions of the Bar.

There are published at the present time SIX independent sets of
Reports :

1. The Regular Reports. _ 4, “The Law Times.”
2. “The Law Journal.” 5. “The Weekly Reporter.”
3. “ The Jurist.” 6. “The New Reports.”

The present cost of all these Reports is about £50 per annum; the
cost of the regular Reports alone is about £30 per annum. The multi-
plicity of the Reports, apart from the cost, occasions the evils of
which the Profession complain. The remedy proposed is—the estab-
lishment, under the management and control of the Profession, of onE
SET OF STANDARD Reports upon the basis of a fair regard for existing
interests. One complete set of Reports, prepared with the requisite
learning, skill and care, and published with expedition, regularity,
and at moderate cost, is all that is required for citation as authority.

It needs, surely, no argument to prove how deeply the interests of
the public are concerned in the certainty of the Law; or how important
it is, that the Judge who decides, the Counsel who advises, and the
Solicitor under whose guidance the client acts, should all be regulated
by one and the same standard of authority. If the Legal Profession in
its several branches co-operate for the purpose, such a set of Reports
may be obtained, and their continuance secured under public pro-
fessional control.

The proposed Reports would be divided into Three Series :—

1. Appellate—comprising the House of Lords and Privy
Council ;

2. Chancery—including Bankruptcy Appeals and Lunacy ;

3. Common Law—including the Probate, Matrimonial, Ad-
miralty and Ecclesiastical Courts.

The Common Law and Equity Reports respectively would be
published in monthly parts, and the Appellate Reports as often as
should be found convenient, but so that the decisions of the year in all
the Courts may, as far as practicable, be published within the year. The
Reports would be prepared by Reporters under the supervision of
Editors to be appointed by the Council, and approved by the chief or
presiding Judge of each Court. The proceeds of the Reports, after
payment of the expenses of printing, sale, distribution and manage-
ment, would be applied towards the liberal remuneration of the Editors
and Reporters; the principle of the proposed application of the pro-
ceeds of the Reports being this, that, as the moneys are raised from
256 HISTORY OF “« THE LAW REPORTS.”

the Profession for’public professional requirements, their application
shall be confined to public professional objects.

The proposed Subscription, payable in advance, is as follows :—

£os d,
For the Entire Series ; j 56 5 (0
For the Appellate Series 22 0
For the Chancery Series 3 3 0
For the Common Law Series 8 3 0

_ The price will be one-third more to Non- Giicontba.

- Arrangements have been made for the reception of the names of
those who may be willing to become subscribers to a set of Reports to
be established with the above objects ; but in order that this may be
done, it is requisite that 2000 subscribers for the entire series, or a
subscription of £10,500 per annum at the least, should be obtained.

The question of the establishment of the proposed set of Standard
Reports is one entirely for the Profession to determine, and to their
determination it is now submitted.

Forms of Subscription will be circulated, and it is hoped that future
proceedings may be decided upon not later than the last day of
Trinity Term, the 15th of June next.

In the event of subscriptions to a sufficient amount being received,
endeavours will be made to arrange that the Reports commence as
from the first day of Michaelmas Term next.

Names of subscribers will be received and recorded by Jamzs
Tuomas Horwoop, of No. 3, New Square, Lincoln’s Inn, Esq., Secretary
pro tem.

FitzRoy Ke.ty.

Bencuers’ Reapine Room, Lincoin’s Inv,
11th March, 1865.

The Scheme having escaped being suffocated by what at best
was excessive care on the part of its nurses, the question had to
be considered how could the interval between the 11th of March
and the 15th of June (the period mentioned in the circular) be
most usefully employed. Much was left to my discretion; and
my first object was if possible to secure the co-operation and
assistance of the several Publishers of the various regular Law
Reports, hoping that they would see that it was for their interest
to assist the Bar in the effort now made to remedy the evils of
the existing system—a system which the Publishers must be con-
scious had reduced their trade profits to a minimum without the
HISTORY OF “THE LAW REPORTS.” 257

prospect of any improvement. With this object in view I endea-
voured to approach the Publishers through Mr. George Sweet,
who had been an active member of the Bar Committee, and was
cognizant of all their proceedings and their object in preparing
the Scheme. His father and brother formed, as I understood,
one of the leading firms of Law Publishers and were owners of
one or more of the regular Reports, and, if so disposed, would, as
I believed, have influence with their brother Publishers. Mr.
George Sweet entered into my views, and promised, though he
did not entertain much hope of success, that he would use his
best endeavours to point out to the Publishers that their common
interests would be best served by tendering their services to the
Council to act as agents, if satisfactory terms could be arranged ;
and I considered I was authorized to offer a 10 per cent. commis-
sion on the gross amount of the subscriptions to cover cost of
publication and delivery, the copyright being vested in the
Council.

After the interval of about a fortnight I saw Mr. George Sweet
again, and he told me it was hopeless to expect the Publishers to
act together. There were several of them interested ; they were
necessarily rivals in business, and as such were unwilling to com-
municate to each other their trade secrets; the Reports were not
all of equal circulation, nor consequently of equal value; and I
must, therefore, consider that the Council would not have any
assistance from the Publishers as a body. They could only view
the question as a trade question, and treat the Bar Scheme as
a rival publication, ignoring any question of public interest.
Shortly after my last interview with Mr. George Sweet, one of
the leading Publishers, Mr. Butterworth, had an interview with
me at my chambers, and urged upon me that the Bar Scheme, if
it succeeded, would be an unfair interference with the vested
interests of the Law Publishers, and to be deprecated on that
ground. But, he added, its success was very uncertain, and if it
failed it would be unpleasant to consider the consequences. He
could only regard it as an extremely hazardous speculation at the
best. It would have been an unprofitable occupation of time to
have argued the case with Mr. Butterworth, and he left, I dare
say, not very well satisfied. Some time afterwards a printed
258 HISTORY OF “THE LAW REPORTS.”

paper was sent to the Council, of which the following is a
copy :—

TO SIR FITZROY KELLY
AND
THE COMMITTEE OF THE NEW LAW REPORTING SCHEME.

GENTLEMEN,

The attention of the Law PustisHers having been called to a cir-
cular proposing to start A New Series or Law Reports, due regard being
had to existing interests, they beg respectfully to state that the Publishers
of the present Reports have been such for a great number of years,
and hoped they had established a right, which they think ought to
have been considered.

Under any circumstances they feel that the Committee, the Bench
or the Bar, would never, by the creation of a monopoly, seek to injure
the Publishers, who originally started, and, with a large capital
invested, have through times of both profit and loss maintained the
Reports. Yet the Circular proposes to publish the Reports at a certain
price, and not allow the retailer any profit. Now the Law Publishers
know of no instance in which such ascheme has been attempted ; and
would remark that the attempt would conduce to the failure of the
project.

The Statutes at large, published by the Queen’s Printer, are issued in
accordance with the invariable custom of allowing a percentage to the
retail dealer. The same is the case with “The Law Journal,” with
periodicals in general, and with works of every description.

The Publishers refrain from dwelling with too much emphasis on
the fact that the Committee propose to obtain the assistance of the
Reporters of the existing Reports, and thereby to induce them to relinquish
their present engagements, and to unite themselves with the new Scheme
instead. They had hoped that the Scheme might have been confided
to hands already accustomed to the trade. The advantages of the
publication being entrusted to them are, indeed, manifest ; they know
the Profession well, and have a staff, already in existence, fully com-
petent for the purpose. They trust, therefore, that the Committee
will reconsider this point; and in particular, that they will not
consent to allow one House the entire right of publishing and retailing
—a practice hitherto unheard of.

On reviewing the whole of the case, the present Publishers trust
that they will be allowed a percentage on all copies sold by them, and
the privilege of supplying with the new Reports all that they have
been accustomed to supply with the present Series. It should be
recollected by the Committee that every house in the trade is in the
HISTORY OF “THE LAW REPORTS.” 259

habit of sending into the country, and also abroad, large quantities of
books, and when the New Series of Reports is started, such houses
will be requested to send and continue them; a task which can only
be properly carried out (except at a great loss and expense) by
establishments in the habit of supplying other works.

As a matter of policy, then, as well as justice, the interests of such
houses should be respected. Their long experience affords the best
means of securing success for the new speculation; and it is hoped
that these facts will meet with that consideration from the Committee
to which the undersigned Publishers submit they are fairly entitled.

The necessary consequence of the failure to obtain the assist-
ance of the Law Publishers was that the Council sanctioned an
application being made to Messrs. Clowes; bearing in mind the
answer given by Mr. George Clowes to the question put by me
to him, and which I read to the meeting held on the 28th of
November, 1864, when the Bar Scheme was adopted, and which
has been already stated. Before, however, proceeding to consider
the arrangements afterwards made with Messrs. Clowes, I wish to
point out and place upon record what would have been the
pecuniary result to the Law Publishers if an offer of 10 per cent.
on the gross amount of subscriptions had been accepted. These
subscriptions amounted in 1866, as appears by the published
accounts of the Council, to £20,334 18s., and in every succeeding
year they have been gradually increasing, until in 1883 they
amounted to £25,752 16s. 2d. Thus the commission in the first
year would have amounted to £2000, and a little more, and
would have gone on increasing year by year until in 1883 it
would have reached £2500. It may be said, and said fairly, they,
the Publishers, could not have foreseen such a result; nor could
I. True, but I, with others, had faith in the ultimate success of
the Bar Scheme—the Publishers had none. They regarded and
denounced it as a hazardous speculation, exhibiting no feature
of commercial success, and would only look at it from the trades-
man’s point of view. They regarded the notion of any interest
on the part of the public as visionary. Our faith was founded
upon the fact that as it was proved to demonstration that in 1830
there was a demand for the Reports of Barnewall and Cress-
well which justified the printing of 6000 copies (of which 6000
copies I ascertained by personal inspection of the publishing
260 HISTORY OF “THE LAW REPORTS.”

books in the possession of Messrs. Benning & Co. that 5643 were
actually sold), there was good ground for believing (without
waiting for demonstration) that there would in 1866 be at least
an equal demand for a set of Reports which should be equal in
point of merit and authority to those of Barnewall and Cresswell.
And our faith has now been justified by the realization of the
substance hoped for. I have not made these remarks to shew
that the Publishers were blind to their own interests, but to
satisfy the Profession and the public that the earnest and zealous
supporters of the Bar Scheme were not mere theorists or doctrin-
naires, but were men of business, and as such influenced by con-
siderations which as men of business they were justified in enter-
taining, and so entertaining were justified in endeavouring to
carry into practical effect. And they have hitherto succeeded
in so doing.

Contemporaneously with the endeavours made by the Council
through me to obtain the assistance and co-operation of the
Publishers, the Council, through me, endeavoured to approach
the parties interested in “The Law Journal,’ in the hope that
some arrangement might be made for merging that publication
in “The Law Reports,” in accordance with paragraph 26 of the
Bar Scheme. The endeavour, however, failed, and, as I treated
the communications as confidential, it is enough in this History
to record the facts of the attempt and the failure.

The overtures of the Council having, under the circumstances
stated, been rejected by the Publishers, I was authorized to com-
municate with Mr. George Clowes. I did so, and found him
willing to receive and consider whatever proposals I might be
authorized to make. The Council trusted to my discretion; and
in substance my proposals were these: That his firm should
undertake the printing, publication, and punctual delivery of the
Reports free of charge to each subscriber, upon terms to be after-_
wards settled with the Council ; that the Council should receive
all subscriptions paid in advance—any subscriptions not paid in
advance should be charged at an advanced rate, and be received
by the firm and accounted for by them to the Council ; that the
Council should not, either collectively or individually, come
under any personal liability to the firm in any shape or form, but
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HISTORY OF “THE LAW REPORTS.” 261

that the firm should depend for their security entirely upon the
fund to be raised by subscriptions; and that the payment of one
moiety of the salaries of the Secretary, Editors and Reporters, as
proposed by the Scheme, should be the first charge upon the fund,
and be paid out of the fund by the Council in priority to the
charges of the firm for printing, publication, and delivery. These
proposals, after careful consideration by Mr. Clowes, were at
length accepted by him on behalf of his firm, and formed the
basis of the arrangement which was afterwards made with the
Council as to commission, prices, &c., the details of which form
no part of the History I have undertaken to write.

The Council were now in a position to approach the Reporters
of the regular Reports, and with that view they appointed
Mr. Geo. Markham Giffard and myself a sub-Committee for the
purpose. We had various confidential communications with
several of those gentlemen, and explained to them the priority
which the Council had stipulated for on their behalf with Messrs.
Clowes, and which Messrs. Clowes had agreed to give in respect
of the first moiety of the salaries as proposed by the Bar Scheme.
To this proposal, however, an objection was taken that the Re-
porters were asked to exchange a certainty for an uncertainty—
something substantial for what might prove unsubstantial. The
fairness of this objection was felt by Mr. Giffard and myself, and
we desired to meet it if possible. And I suggested a guarantee
by the Bar for the period of three years of subscriptions, not
exceeding £30 a year by each individual, and undertook to pre-
pare such a guarantee, and use our best endeavours to get it
signed. I did so, and had no difficulty in getting the guarantee
signed to an amount which satisfied the Reporters.

The accompanying lithograph is a fac-simile of the guarantee,
and the signatures of the guarantors.

It will be noticed in looking at the fac-simile (see opposite),
that the signature of Lord Chancellor Cranworth heads the list
with a subscription of £50, and his Lordship’s signature is
evidently inserted after the first signatures had been written.
The signature was obtained under these circumstances :—Hap-
pening to be present at a reception given by his Lordship to the
Bar, he spoke to me about the Bar Scheme, and the proposed
262 HISTORY OF “THE LAW REPORTS.”

establishment of “The Law Reports.” I then explained the
matters as they stood, and that the regular Reporters had desired
some better security for their salaries than the chance of sub-
scriptions to be paid in advance, and that the guarantee had
been numerously signed, and to an amount which satisfied the
Reporters. His Lordship then added that he heartily approved
of the Scheme, and he wished to testify his approval by signing
the guarantee for £50 instead of £30, and he requested me to
attend him at Lincoln’s Inn the next day when he would be
sitting there. I did so, and his Lordship prefixed his signature
as it now appears.

But for this guarantee it is probable that none of the regular
Reporters would have accepted appointments under the Scheme,
and the main object might have failed to have been accom-
plished.

It is hardly necessary to add that the success which attended
the Reports from the first rendered a resort to the guarantee
unnecessary, and at the end of the three years all liability ceased.
And it remains a striking proof of the power and influence of the
Bar, when its members can be brought to combine for the
furtherance of an object which they are satisfied is of public
utility and professional benefit, untainted with selfish advantage
to any individual.

The fact that Serjeants’ Inn had not appointed any member of
the Council, nor even returned any answer to the communication
made by the Attorney-General, gave rise to a rumour that the
Judges as a body disapproved of the Bar Scheme. This rumour
was industriously circulated by the opponents of the Scheme, and,
as might be expected, had the effect of checking the subscrip-
tions to “The Law Reports,” and thus prejudicially affected the
labours of the Council.

As a member of the Law Amendment Society, I offered to read
a paper on the amendment of the existing system of Law Report-
ing, before that society, which, as I have before observed, is not
confined to lawyers; my offer was accepted, and Sir FitzRoy
Kelly was invited to preside, and he presided as chairman. The
paper was read on the 22nd of May, 1865, and the following is a

copy :—
HISTORY OF «THE LAW REPORTS.” 263

NATIONAL ASSOCIATION FOR THE PROMOTION OF
SOCIAL SCIENCE,

WITH WHICH IS UNITED THE

SOCIETY FOR PROMOTING THE AMENDMENT OF THE LAW.

On the AMENDMENT of the Existine System or Law Reportina.* By
W. T. 8S. Danier, Q.C.

I am not aware that at the present time anything new, either as
matter of argument or as matter of fact, can be adduced upon the
subject of Law Reporting. The question has now been before the
profession and the public for full twenty years. Everything bearing
upon it, in the shape either of argument or fact, has been brought
forward by one or other of the several parties who at different times
have felt sufficient interest in the question to take part in its dis-
cussion.

The evils of the system, and various suggested remedies, have been
the subject of frequent discussion in the Law Amendment Society.
Upon two occasions, one in the year 1849 and again in the year 1853,
Committees of the Society were specially appointed to consider the
matter. They did so, and afterwards submitted elaborate and most
carefully prepared Reports, which were adopted by the Society, and
afterwards published and extensively circulated. In 1858 the subject
was brought before the Association by Mr. Napier, in his inaugural
address at Liverpool, and again last year by Sir James Wilde in his
address at York. In the Juridical Society the same subject has also
been, at different times within the last few years, carefully considered
and thoroughly discussed, especially in papers read by Mr. George
Sweet and Mr. Westlake, and published in the “ Transactions ” of that
Society. In “ The Law Magazine,” “‘ The Law Review,” “ The Jurist,”
and in other legal publications of acknowledged merit, the subject
has in former years as well as recently been thoroughly debated, and
every argument which research and independence on the one hand,
and subtlety and self-interest on the other, could bring to bear upon
the matter, for and against, has been urged with zeal and perse-
verance, sometimes seasoned with a little harmless invective and
abuse.

Our legal brethren in Scotland and Canada have also recently

* Read at a Meeting of the Jurisprudence Department, on Monday, May 22,

1865, and ordered to be printed and circulated. Sir FitzRoy Kelly, Q.C., M.P.,
in the Chair.
264 HISTORY OF “THE LAW REPORTS.”

interested themselves in the question ; and even in America the din of
war has not been loud enough to silence the voice of the jurists and
lawyers of that great country ; for in Philadelphia during the autumn
of last year, the subject was earnestly discussed with especial refer-
ence to the endeavours at reform which were being made in this coun-
try. And I observe that in Ireland, “ The system of Law Reporting
in that country and in England, with suggestions for its amendment,”
has been announced as the subject this year of an academical prize.
I may refer also to Mr. Serjeant Pulling’s excellent pamphlet “ On
our Law Reporting System,” published in 1863, and to the interesting
paper read before this Society by Mr. Edward Webster last year, and
which has been published as part of our “ Transactions.” To all
thesé may be added the investigation and inquiries undertaken and
conducted by the Bar Committee, resulting in a report recommending
a particular plan of amendment, which was afterwards adopted by a
general meeting of the Bar, and is now being submitted to the pro-
fession through the agency of the Council of Law Reporting.

As the result of this long and frequent and varied discussion, and
these many efforts at suggested amendment, it may be hoped that the
public, as well as the professional mind, is prepared to expect that
something will at some time be done. And it being the especial
function of this Society to lend its aid towards the developing and
maturing any reasonably fair plan that may be suggested for effect-
ing an amendment in any part of our social, and especially our legal
system, I have ventured to think that the reading before this Society
of a paper upon the amendment of our present system of Law Report-
ing, with a view to consider what that something should be, and how
it should be done, would be neither out of time nor out of place.

Bearing in mind the extent and nature of the discussion which the
subject has already undergone, and that I am unable to introduce
any novelty either in fact or argument, I shall propose to deal with
the question as a practical one, and avoiding all mere theoretical dis-
quisition, aim at finding an efficient remedy for a real grievance.

With this view I propose to consider the three following ques-
tions :—

1. Is it desirable that any change should be made in the existing
system of Law Reporting, with a view to its amendment ?

2. If so, what should that change be, and how should it be effected ?

3. Is the particular scheme recommended by the Bar Committee
calculated to effect the change desired?

In these days of material influences, when it would seem that the
principle which guides men’s conduct is the quod prodest, and every
confidence apparently is felt that the quod fit will follow as a result, it
is only paying due homage to the spirit of the age to acknowledge
HISTORY OF “THE LAW REPORTS.” 265

the fact that the various classes of persons who have vested interests
in the present system are compactly opposed to any change which
shall not with certainty produce increased advantage to themselves.
They look at home—their charity begins and ends there. The limits
of their moral and intellectual horizon do not extend so far as to
embrace any object which touches or affects any interests beyond

. their own. We have the power to take care of ourselves, these poten-
tates say, and we will do so. The public interest is only our concern
when we can make it serve our purpose ; patriotism is not our profes-
sion, The resolutene-s of this opposition on the part of the vested
interests has the merit of intense sincerity, if it have no other. It is
not to them, however, that the first question is addressed, nor by
them, being parties interested, can it properly be judged.

It must be remembered, however, that there is a class of inde-
pendent thinkers which, if not numerous, embraces individuals whose
judgments are of considerable influence and entitled to the greatest
respect, with whom the first question will properly, and, I hope, may
usefully be discussed: those, I mean, who, looking at the question
solely from the public point of view, are impressed with the convic-
tion that the present system, although attended with some admitted
inconveniences and imperfections, is nevertheless one in which no
change can, in their judgment, be made, without introducing a greater
amount of mischief than any which would be redressed. If I under-
stand aright the grounds and reasons upon which this conviction
rests, they are of this nature. The existing system has grown to its
present full proportions, by the slow but sure progress of the principle
of freedom. Reporting was once a monopoly, fostered and upheld, as
they consider, by judicial influence. While it flourished as a monopoly
it produced the fruit of monopoly—the sacrifice of public to private
interests. The interests of the public and the Profession in good,
regular, expeditious and cheap Reports were sacrificed to the private
interest of individuals—Reporters and publishers. Reports were pub-
lished, not as the interests of the public and Profession required, but
as the interests and convenience of individuals permitted. Reports
became costly in price, dilatory and irregular in publication; no
remedy was attempted in the interest of the public; on the contrary,
judicial authority was exerted with some severity to repress all
attempts to remedy the evils by competition. Rival Reports were
published at less cost, with greater expedition, and with satisfactory
regularity. The Profession would have encouraged and supported
them, but their citation in Court was somewhat despotically forbidden
by the Judges, and the Bar did not venture to resist the prohibition.
In the King’s Bench, Dowling and Ryland struggled in vain for years
to establish themselves as a co-equal authority with Barnewall and
266 HISTORY OF «THE LAW REPORTS.”

Cresswell ; and at a later period the attempt of Tamlyn at the Rolls to
compete with Russell and Mylne was a signal failure. From the ter-
mination of the Chief Justiceship of Lord Tenterden, in 1832, how-
ever, a change came over the spirit of the Bench. The citation of
rival Reports began to be permitted—first in the King’s Bench, unde«
the auspices of Lord Denman. By slow degrees the influence of this
example spread, and at length diffused itself among the other Common
Law Courts. The House of Lords itself yielded no effectual resistance,
and the Court of Chancery, not then estranged from Westminster Hall,
could not withstand the invasion. Free reporting established itself
triumphantly, and still triumphs, to the great advantage of the Pro-
fession and the public. Happily there is no power strong enough,
nor, I believe, any ‘spirit weak enough, to desire to turn back the
shadow on the dial of Ahaz. The good that has been gained must
remain secure. The question is, are we to make an idol of the creature
that has served us so well, and ought we to allow ourselves to become
such blind worshippers as to be unable, or unwilling to see its defects ;
or, if we see them, must we deem it sacrilege to let the amending
hand do its gentle but necessary office? No doubt different minds will
attribute different degrees of weight to the mischievous effects of the
present system: a cloud of witnesses might be summoned to testify to
the heavy pressure of the evils which competition, under the excite-
ment of free trade, has brought upon the profession—chancellors and
ex-chancellors, judges in office, judges retired from office, jurists and
statesmen, living and dead, advocates, practitioners, men of books,
and men of business—it would be a weary occupation of your time to
bring the array before you. I would endeavour to discover some test
by which to try the accuracy of conflicting judgments upon this
question. To this end I would suggest that free-reporting and free-
trade-reporting are not necessarily identical. Let free-reporting
flourish and bring forth its wholesome fruit in due season. The pro-
blem is to combine freedom with order, and to that end to establish
such regulations only as are essential to the enjoyment of the fruits
of freedom. So far as the commercial element is a necessary or a useful
agent in developing, and upholding, and perfecting, freedom in report-
ing, let the agency be employed—but let the employment be as agent :
let the agent be kept subordinate—it is not wise under any circum-
stances to let the servant become the master. Social progress cannot
safely obliterate those distinctions which, whether they are regarded
as the work of a providence which “shapes our ends, rough hew them
how we will,” or as the necessary result of an occult principle of de-
velopment whose nature and essence have yet to be invented by man’s
wisdom, have, according to all human experience, in fact existed, and
do still exist. Nouwin this matter of Law Reporting, has not the
HISTORY OF “THE LAW REPORTS.” 267

servant been allowed to become the master? Has not the commercial
predominated, and does it not now predominate, over the professional
interest? And is not this fact the traceable cause of most, if not all,
the evils of which complaint is made? Let me bring to the question
the consideration of a few details. We all know that in the early
periods of our legal history, Law Reporting, being treated as matter of
public interest, was made matter of State concern. The Year Books
were the works of public functionaries; the precise details of their
appointment, remuneration, and duties, are not accurately known;
the history has been lost, or perhaps never was written. They ceased
in the reign of Henry VIII.—why, we are again without accurate in-
formation—we are left to conjecture. From that time until the year
1785, a period of upwards of two centuries, the Reports of legal deci-
sions—decisions which supplied the materials from which some of the
most important of our present laws have been constructed—were left
to the chance industry and enterprise of individual Reporters. The
last of these Reporters, and one whose style, for pithy conciseness,
orderly composition, and lucid arrangement, might be recommended
for imitation in the present day, was Mr. Douglas, afterwards Lord
Glenbervie; his Reports were brought down to Trinity Term, 1785.
The vast development of ovr jurisprudence, effected by the liberal
learning of Lord Mansfield, having to be applied to the increasing
wants of a community whose path has ever been one of progress in
the march of civilisation, prompted the regular publication of Law
Reports as a commercial undertaking. The Term Reports commenced
in Michaelmas Term, 1785. The preface to the first volume is dated
January 20, 1786, and it may be instructive to observe how uniform
has been the public want, and how uniform also has been the mode
adopted to meet it. As the preface is short, I will, with your permis-
sion, read it.

The desire universally expressed for a periodical work of this nature was the
principal inducement which led the compilers of these Notes to submit them to
public view; without any design of entering into a competition with any
modern Reporter. Should they meet with approbation, they mean to pursue
their plan of publishing the Notes of Cases adjudged in the Court of King’s
Bench within a short time after each Term.

In a work of this kind all that can be expected is accuracy; to publish and
digest properly, requires long time and much labour, which would defeat the
intention of this publication; the primary object of which is to remedy the
inconvenience felt by every part of the Profession of waiting two or three years
till some gentleman of experience and ability has collected matter sufficient to

form a complete volume. ;
With these motives, the publishers beg leave to lay in their claim to the

candour of the Profession.
The delay in the publication for two or three years of current
T
268 HISTORY OF “THE LAW REPORTS.”

decisions was, in 1785, considered to be a want of the Profession which
then required to be supplied; this want was proposed to be met by
the regular publication of periodical Reports shortly after the end of
each term. The modesty with which the Reporters spoke of their
intended labours did not prevent the merit of their Reports from being
at once appreciated, nor the value of the system of speedy and regular
publication from being understood. This system thus founded by
commercial enterprise met the wants of the Profession ; other series
of regular Reports upon the same principle were afterwards, at
different intervals, established in the different Courts of Westminster
Hall; in the Court of Common Pleas, in 1788, by Mr. Henry Black-
stone; in the Court of Chancery, in 1789, by Mr. Francis Vesey ; in the
Exchequer, in 1792, by Mr. Anstruther. A regular series of Reports
of decisions in the House of Lords was commenced by Mr. Dow, in
1812. Under this system, commercial enterprise undertook to sup-
ply that public want which was not supplied by any existing authority.
The judges had not the power, and the Government had not the dis-
position to do it. The speculation wasa great success. These Reports,
thus supplying a public want, commanded a large circulation, and
yielded large profits, in which it was to the interest of the publishers
to let the Reporters share. The Reports became valuable properties,
and the wonted prepossessions in favour of property were engendered
towards them; they became a monopoly; the ordinary yearly circu-
lation of the Queen’s Bench Reports reached, and for years was main-
tained at 4000. The remuneration of the Reporters was as high as
£40 per sheet of sixteen pages—a volume of Barnewall and Cresswell
was worth £2000 a year to the Reporters, and their labours were worth
the money. The ordinary yearly circulation of even the Chancery
Reports was 2000, and the publisher willingly rewarded his Reporter
with £800 a year—the publisher’s profits, however, were the lon’s
share. Now mark the consequences ; exclusive citation, originally a
necessity, had grown up into a right which was maintained by
authority ; what followed was costliness in the price, delay and irregu-
larity in the publication. The interval of two years between the
decision and the Report, the evil which, according to the preface just
quoted, the series of regular Reports had been brought into existence
to remedy, after being for a time redressed was reproduced in another
form through the operation of the remedy. A commercial monopoly
having been established, the interests and convenience of the indi-
viduals, whether as Reporters or publishers, were allowed to predomi-
nate over all considerations for the public and the Profession. There
was no power which could or would exercise control in theinterest of
the public. The publisher, who had usefully come forward to serve
the public in supplying a want which the public could not get supplied
HISTORY OF “THE LAW REPORTS.” 269

by any ether means, found himself, by the ordinary operation of exist-
ing circumstances, in a position to advance his own interests at the
expense of the public, and of course he did so as long as he could. The
servant had become the master. The public, however, by the favour-
able accident of circumstances, ultimately found a remedy for this
commercially engendered evil, through the operation of another
commercial agency—Competition.

When once the point of the wedge had been introduced, by slow
but sure degrees Competition established itself in the several Courts,
and by cleaving monopoly asunder, remedied the evil which com-
mercial greed, left without control, had engendered. There was then
no delay, no irregularity, no mischievous judicial patronage. Ask those
interested in the existing series of the regular Reports which trace
back their pedigree in orderly succession to the propositus from which
they sprung, the descendants of Durnford and East, of H. Blackstone,
Anstruther, Vesey, junior, and Dow, to compare the profits of the
present day with those of the days before Competition was permitted,
and they will tell you Competition has sorely diminished them. A
scanty remuneration to publishers and Reporters, is the description
given by Mr. George Sweet in his paper before referred to. Competi-
tion, acting as a besom to make a clear way for supplying the public
want, swept down the vested interests of commercial monopoly with-
out scruple or remorse.

Competition has had its day for upwards of thirty years, and it is
now upon its trial. The public want is the same now as it was in
1785—the same now asit was in 1835. Commercial enterprise, though
in 1785 it supplied the want in a particular form which was for many
years satisfactory, at length was tried in the balance and found want-
ing. Competition, for a time, made good its defect by uprooting its
monopoly. After thirty years’ possession Competition is charged with
failing to supply the public want in the manner which the public
interest requires. Why should not Competition be called to account, and
submit to a fate similar to that which was visited on monopoly ? Let
me remind you of the race Competition has run. ‘‘ The Law Journal”
from the year 1832, the commencement of its new series, has been the
established rival of the regular Reports, and from that period (1832)
Competition may be dated. In 1837 “ The Jurist” started into ex-
istence ; in 1842 “ The Law Times; ” in 1852 “ The Weekly Reporter ; ”
in 1862 “The New Reports;” and in 1872 may we not expect another ?
Hoping the remark will not offend, I venture to say that the primary
object of all these Reports is not the supply of the especial want
of the public, but the object is to secure to individuals a commer-
cial profit without reference to that want. The want of the public
has been, and is, uniformly the same—namely, an accurale Report

m 2
270 HISTORY OF “THE LAW REPORTS.”

published with expedition and regularity and at a moderate cost, to
which reference can be made for all purposes of inquiry as to
case law. That want is not now supplied through the oppression of
numbers. The multiplicity of the Reports is no security for their
accuracy. Recent events have brought forth the avowal of the fact
that Reporters interchange their notes. The publication of a Report
under the name of a barrister is no longer any voucher that, though
accredited by his name, it is the result of his own skill and labour.
Six Reports of the same case, even if all were original, would be
either oppressive or mischievous, oppressive if they are all alike, mis-
chievous if they differ. Unrestrained Competition, though it has
effectually destroyed the trade monopoly of Reports, has, through the
same influence operating in another form—the pursuit of commercial
profit to individuals without reference to the public requirement—in-
troduced a new class of evils which are the opposite or converse of
those introduced by monopoly. Under monopoly the public had the
one report, but burdened with the evils of costliness, delay, and irre-
gularity ; under Competition, costliness is not diminished—for exist-
ing Reports are not superseded, and continuing to be published must
be referred to—in place of delay and irregularity the public are bur-
dened with the evils of multiplicity, endless repetition, confusion
when Reports differ, and the publication of a mass of cases useless as
precedents. The problem is to find a plan by which the distinctive
evils of each system which experience has brought to light may be
avoided, and the one want of the public supplied, and I venture to
think that the attempt to solve the problem is worth the trial.

The course of the observations already made has sufficiently indi-
cated, if any change in the present system be attempted, what, as
I think, that change should be—one set of Reports under one manage-
ment, subject to such control as would prevent monopoly on the one
hand, and disorder and confusion on the other. How to attain that
object is the question. Some control there must be, and the choice
appears to he between the Government and the Profession. Much is
doubtless to be said in favour of Government authority. Principle
may be fairly alleged to be on its side. The promulgation of the law
is one important function of Government, and case law is as important
as statute law. The circulation of correct law throughout the realm
is as important as the circulation of good coin—and Government has
long ceased to entrust the coinage even of the baser metals to indi
vidual enterprise—why, it may be asked, should not all law be issued
under the seal of its authority? But I confess it seems to me that this
is not a question which can be determined by analogies or rhetorical
flourishes. We have not been entirely without experience, and such
as we have had has not shewn results which can be appealed to with
HISTORY OF «THE LAW REPORTS.” 241,

confidence. But without being disposed to indulge in speculative
objections, I feel that there are practical difficulties in the way which
would render the obtaining any remedy through Government inter-
ference very doubtful. I doubt much if Government could be pre-
vailed upon to grant the funds necessary for the purpose, and if they
were told the Reports would be self-supporting, the reply would
probably be, then there is the less need of our interference. And,
moreover, it is in accordance with the spirit of our institutions and the
policy of our Government, to leave as much as possible to private
enterprise all that private enterprise can effect. But if any Govern-
ment could be prevailed upon to entertain the plan, judging from
experience in other law reforms (I allude particularly to the appoint-
ment of a public prosecutor), would not the question of patronage be
a stumbling-block? It seems to me that the office and duties of a
Reporter require the possession of qualities which it would be difficult
to obtain and keep combined in a salaried official. I mean particu-
larly the spirit of independence and the stimulus to sustained exertion.
Ifasystem of Reporting under Government authority were established,
I presume Parliament would enact that those official Reports should be
of exclusive authority. Suppose a Reporter to become careless or in-
efficient, and his Reports imperfect or inaccurate, no Act of Parliament
could prevent the publication of other and more accurate Reports, and
the independence of the Bar, exercised in open Court, would in some
way find the means of citing such Reports. In the interest of the Bar
as inseparably connected with the interest of the public, I venture to
think that these useful elements should be maintained and fostered,
and I fear that under a Government system they would languish and
die out. Cannot a scheme be devised which will accomplish the
desired result through professional agency without Government aid?
The Bar Scheme is an attempt todo it. Is it reasonably adapted to the
purpose? J have no intention to make myself the advocate of that
Scheme. I shall content myself with endeavouring to explain its
leading principles. It rests upon these data :—

I. That what is wanted for the Profession and the public is one
set of Reports which shall be so conducted as to be accepted by all
branches of the Profession as the only standard of authority for case
law.

Il. That the Profession, as they require Law Reports for profes-
sional purposes only, shall not be taxed with commercial profits in
favour of parties who do not contribute skill, labour, or materials
towards the preparation and publication of the Reports.

III. That Reports established upon this principle would command a
circulation which would enable them to be sold at a reasonable price,
and afford liberal remuneration to those members of the Profession
272 HISTORY OF “THE LAW REPORTS.”

who shall be engaged in their preparation—and that those members
ought to be so remunerated.

Proceeding upon these data, the Scheme proposes not to supersede
but to fuse and organize existing interests as far as they are capable,
and are willing to be made the subject, of such fusion and organization.
Commencing with the regular Reporters, the first object of the scheme
would be to bring the existing sets of Reports under one management.
These are now published separately and independently of the other, at
an ageregate cost to the Profession of £30, and yet yield a very meagre
profit to all those interested. The scheme aims at going further, and
would, if practicable, embrace “The Law Journal,” but any proceed-
ing under it rests upon consent. I venture to concur in an opinion that
has been expressed that a fusion of the regular Reports and “ The Law
Journal” into one set is that which would best answer the require-
ments of the Profession, and I think that if the will existed in all
necessary quarters, the large and liberal support of the Profession, at
home and abroad, would supply the means for effecting a just and
liberal arrangement upon the principle of fusion. Experience has
shown that the legitimate wants of the Profession require for present
use a more rapid publication than would be compatible with a care-
fully prepared Report, and therefore, the scheme does not aim at any
present interference with any weckly legal publication. Competition
is not sought to be excluded, only to be moderated ; nor is monopoly
sought to be established. Exclusive citation would be left to be
attained, if at all, as the result of an improved system. If the Profes-
sion were supplied with one set of Reports with which they were satis-
fied, it may reasonably be presumed that the demand for others would
fall off; and as they would in that case cease to be profitable they
would cease to be published. The Judges would thus be brought
to the position in which they were when the Term Reports were first
established.

The Scheme asks the sanction and assistance of the Judges by sub-
mitling the appointment of Reporters to their approval, giving the
Reporters access to such papers as they can control, and revising their
judgments, at least their unwritten judgments, before publication. To
guard against the degeneracy of the Reports, and to provide for their
punctual and regular publication, the Scheme suggests the formation
of a Council consisting of members selected from the existing institu-
tions of the Profession, with the Attorney-General, the Solicitor-
General, and the Queen’s Advocate for the time being, as ex-officio
members. The services of this Council are to be rendered gratui-
tously, the elected Members are subjected in certain proportions to
annual change—to be recruited from the ranks of the Profession—
and it is proposed that the Council should be incorporated. Their
HISTORY OF “THE LAW REPORTS.” 273

duties are confined to general superintendence and control; they
appoint the Editors and Reporters, subject to judicial approval. The
preparation and publication of the Reports would be exclusively the
duties of the Editors and Reporters. The finances are to be managed
by the Council, with the assistance of a paid Secretary—the amounts
being audited annually under the direction of the Editors and
Reporters—and the Council would make an annual report to the
Profession. There would be no secrecy, no mystery. The means
which the Council look to for carrying the scheme into operation are
the voluntary support and co-operation of the several branches of the
Profession. The extent to which these will be accorded must be left
to time to exhibit.

Though there are some professional interests adverse to the Scheme,
the Scheme is adverse to none. It seeks the single object of accom-
plishing public improvement by means of the simplest kind—means
so simple that it requires a considerable effort of perverse ingenuity to
misrepresent them. It would preserve and uphold the interest and
honour of the Bar by making a valuable privilege subservient to the
public good. It would keep the employments of an honourable Pro-
fession distinct as far as practicable from commercial distractions. It
would preserve and perpetuate the principle of freedom in Reporting
by subjecting it only to those regulations which are necessary to
accomplish the public objects for which alone such freedom is desir-
able. (1)

After awhile, and during the latter part of the summer, the
subscriptions came in more freely, and the Council proceeded to
_appoint the Editors and Reporters, and, although they met with
some refusals which they regretted, they were enabled to com-
plete the appointments for all the Courts, including the House
of Lords, and ultimately the Privy Council, in a manner which
was satisfactory to themselves, and they felt assured would be

(1) During the discussion on this paper, Sir FitzRoy Kelly said, “ An impres-
sion, quite erroneous (he believed), existed as to the feelings and opinions of the
Judges on the subject of the new scheme. It was true they did not think
it befitting their dignity, or suitable to their position, to move in the matter,
although they were, perhaps, of all classes the most likely to derive benefit and
relief from the intended alteration. There were, however, adverse interests
involved—interests which the Judges might eventually have to deal with. It
was, therefore, not to be expected that, though favourable to the undertaking,
they would take any active steps in promoting it. He had, however, reason to
believe from the few communications he had had the opportunity of holding
with the Judges, that they were well inclined towards the movement, and
desired to see it successful.”
274 HISTORY OF “THE LAW REPORTS.”

satisfactory to the Judges and the Profession, and I had prepared
an address to be sent to the Lord Chancellor and the Judges of
the several Courts.

A meeting of the Council was appointed to be held on the 26th
of October, 1865, as was supposed, for the mere formal purpose of
authorizing and directing the Reporters to take their seats and
commence their labours on the 2nd of November, the first day of
Michaelmas Term, and to direct the sending of the address to
the Judges. Only three members attended, Sir FitzRoy Kelly
(in the chair), Mr. Karslake, and myself. We were a quorum,
and competent to bind the Council by any resolution we might
pass. <A letter from Mr. Hurlstone, addressed to Sir FitzRoy
Kelly, was produced, raising the objection that under the 21st
clause of the Scheme of the Bar Committee the Council had no
authority to proceed until the subscriptions had reached £10,000
at the least. Mr. Karslake concurred with Sir FitzRoy in
considering the objection entitled to serious consideration, and;
as the actual subscriptions had not reached £10,000, we ought not .
to proceed at present. I pointed out that Mr. Hurlstone had
nothing to do with the proceedings of the Council: he and his
colleague had been offered the Reportership in the Exchequer,
and he had taken upon himself to refuse for both, although it was
believed that his colleague, Mr. Coltman, if he could speak for
himself, would have accepted the appointment, and I therefore
urged that Mr. Hurlstone had no locus standi before the Council,
and ought not to be allowed to raise his present objection, espe-
cially as, if entertained at all, it would render the labours of the
Bar Committee and the Council abortive. I then suggested that,
at all events, we should not come to any resolution without first
communicating with the Attorney-General. This suggestion was
acceded to, and I immediately went to the Attorney-General’s
chambers in New Square, had an interview with him, explained
the situation, and he suggested that a meeting of the Council
should be called for 1 p.m. on the 30th of October (the following
Monday), when he would attend, and notice be given by the
Secretary to all the members of the Council of the object of the
meeting, and their attendance requested. I returned to the
Council and communicated this suggestion of the Attorney-
HISTORY OF “THE LAW REPORTS.” 275

General, and it was adopted and acted upon, and the meeting was
accordingly adjourned to the following Monday at 1 p.m. Due
notice of the meeting and its object was given to each member of
the Council, and the meeting was held. There were present the
Attorney-General, representing the ex-officio members, Sir Fitz-
Roy Kelly and myself, representing Lincoln’s Inn, Mr George
M. Giffard representing the Inner Temple, Mr. Greene and
Mr. Karslake representing the Middle Temple, and Mr. Cookson
and Mr. Williams representing the Incorporated Law Society.
The Attorney-General took the chair, and Mr. Hurlstone’s objec-
tion being stated by me, all present (with the exception of
Mr. Karslake) unhesitatingly agreed that the objection could not
be entertained—whereupon Mr. Karslake withdrew, expressing
his conscientious opinion that the Scheme would prove a failure,
but that he should not further interfere. Thereupon it was
resolved that the Council proceed to complete the appointments
(some of which had been left open in the hope that the Reporters
to whom offers had been made, and who had hitherto refused,
would at the last moment come in) and take measures for the
commencement of the Reports on the Ist day of Michaelmas
Term. The Attorney-General then vacated the chair, and was
succeeded by Sir FitzRoy. Thus the Attorney-General’s firm-
ness, it is not too much to say, saved the Scheme from destruction
at the last moment.

It should here be stated that Mr..George Clowes, on the 27th
of September, had offered on behalf of his firm to make good
whatever number of subscriptions might be required to raise the
sum of £10,000, so as technically to satisfy the terms of the Bar
Scheme. And at the meeting of the 30th of October, on the
motion of Mr. Giffard, seconded by Mr. Greene, it was resolved
that the offer of Messrs. Clowes contained in their letter of the
27th ultimo be accepted. This offer was merely precautionary
and was never acted on—the precaution proving unnecessary.

The Reporters in the Courts at Westminster who had declined
the offer of the Council, besides Messrs. Hurlstone and Coltman
in the Exchequer, were Messrs. Best and Smith in the Queen’s
Bench, Mr. Best declining for both, though his colleague would
have been willing; and so anxious were the Council to leave the
276 HISTORY OF “THE LAW REPORTS.”

door open for these gentlemen to come in at the last moment that
the appointments for both Courts were at first made only pro-
visionally, and these appointments were not made absolute until
the Council were assured that the refusal was final. And then
Mr. Williams Mills and Mr. Henry Holroyd were appointed
Reporters for the Court of Queen’s Bench, and Mr. Arthur Charles
and Mr. James Anstie were appointed Reporters for the Court of
Exchequer.

Mr. Beavan had already taken his own independent course,
satisfied with the protection and patronage of the Master of the
Rolls, Lord Romilly.

At the meeting of the 30th of October, 1865, after Sir FitzRoy
Kelly had taken the chair vacated by the Attorney-General, the
first resolution passed was that an address stating the present
state of the Scheme of Law Reporting be forwarded to the Judges,
and it was forwarded accordingly. The following is a copy of the
address :—

To the Right Honourable and Honourable the Lorp Hicu
CHANCELLOR and the several JupGes of Her Majesty’s
Superior Courts of Law and Equity at Westminster, the
following Address of the Councin or Law ReEportine
is respectfully submitted.

The Council of Law Reporting, as the Judges are no doubt aware,
owe their existence to a Scheme for the amendment of the present
system of Law Reporting, which was approved and adopted by the
Bar at a general meeting convened for the purpose by the Attorney-
General, and held under his presidency, on the 28th day of November,
1864.

The Scheme itself was the result of the labours of a Committee of
Barristers appointed at a meeting of the Bar, convened and held under
the same authority on the 2nd of December, 1863, for the purpose of
considering and preparing a plan for the amendment of the present
system; and that system had, by a previous resolution of the same
meeting, been pronounced to be unsatisfactory, and to require amend-
ment.

The Committee thus appointed consisted of twenty-two members of
the Bar—ten of them members of the Inner Bar, and twelve of the
Outer Bar. Of the ten members of the Inner Bar, six, including
the Queen’s Advocate, represented the Common Law Bar, and the
HISTORY OF “THE LAW REPORTS.” 277

remaining four the Equity Bar. Of the twelve members of the Outer
Bar, two represented the body of practising Conveyancers, five the
Common Law Bar, and five the Equity Bar. The profession] position
of the several members of the Committee was such as to place its
character beyond the reach of objection or even cavil.

The meeting which appointed this Committee was convened by the
present Attorney-General, upon a requisition signed by 382 members
of the Bar, including, with only three exceptions, all the leaders of
the Chancery Bar, and about twenty-five leaders of the Common Law
Bar. And the meeting itself was attended by upwards of 700 members
of the Bar.

The Scheme of amendment recommended by the Committee, and
afterwards approved by a general meeting of the Bar, was the result
of six months’ assiduous and gratuitous labour on the part of the
Committee.

These facts are referred to for the purpose of shewing that the
Council of Law Reporting has its origin in a deliberate and sustained
effort of the Bar to discover and carry into effect a remedy for a very
great evil, involving much public mischief arising from the uncontrolled
use of one of the important exclusive privileges of the Bar, namely,
the privilege of reporting the decisions of our Superior Courts of
Justice for citation as authority. The proceedings which followed,
originated and were concluded under the auspices of the Attorney-
General, as the proper leader of the Bar, and conducted throughout in
a manner becoming their importance, and solely with the view of
helping to accomplish a public object which has been long desired, but
hitherto deemed impracticable.

The Scheme, thus prepared and approved, contemplated the co-
operation, in the formation of the Council of Law Reporting, of the
four Inns of Court, Serjeants’ Inn, and the Incorporated Law Society.

The Benchers of Gray’s Inn declined to co-operate, stating as
their reason that they had not sufficient confidence in the Scheme to
give it their support.

Serjeants’ Inn declined to send a member to the Council, the Judges,
members of that Inn, considering, as it is believed, that in the then
stage of the matter it would not be desirable to adopt any proceeding
which might be regarded as a premature interference on their part.

The other three Inns of Court and the Incorporated Law Society
appointed members of the Council, as proposed by the Scheme; and
these members, so appointed, with the concurrence of the Attorney-
General, the Solicitor-General, and the Queen’s Advocate, as ex-officio
members, have undertaken the duty of endeavouring to give effect to
the public improvement contemplated by the Scheme.

It is propesed that the Reports shall be placed under the manage-
278 HISTORY OF “THE LAW REPORTS.”

ment and control of the Council; that they shall be prepared by
Reporters, under the supervision of Editors, all being Barristers of
reputation and experience; that they be published in monthly parts,
with regularity and promptitude; and so that, as far as practicable,
there be no arrears; and that the remuneration of the Editors and
Reporters be by salaries, with provision for future increave to an
amount, as it is hoped, commensurate with the value of their pro-
fessional services, and so as to leave them no longer exposed to the
risks, uncertainties, and exaction, which have been found to be in-
herent in every system which makes Law Reporting a commercial
adventure, involving a trade profit.

The Council have been enabled to make financial arrangements for
the establishment of the proposed Reports which place the interests of
all those members of the Bar whose services will be engaged as
Editors and Reporters beyond the reach of any commercial risk.

For special reasons, the Council feel it due to themselves, and right
to the Profession, to state the general nature of these financial arrange-
ments. The Council have always considered themselves bound to
give effect to the provisions of the Bar Scheme according to their
true intent and meaning, with the view of accomplishing (if practi-
cable) the prime object of the Scheme, namely, the establishment of
one complete set of Reports under professional control. By the 21st
clause of the Scheme, it is contemplated that for the establishment of
the Reports, a subscription of £10,000 is essential. ‘The Council have
invited subscriptions for that purpose and obtained them to an amount
which would have considerably exceeded £10,000 if the Government
guarantee contemplated by that clause had been obtained. It was,
however, found impossible to obtain that guarantee; and that being
so, the Council might, had they been so minded, under the terms of
the 22nd clause, have cancelled the list and abandoned all further
proceedings; but with the full concurrence, or, rather, at the urgent
request of many members of the Bar, they have not done so. They
have resorted to the authority given to them by the 27th and 28th
clauses of the Scheme. And having, to their great regret, received no
offer of assistance from any of the London law publishers, they have
entered into arrangements with a firm of printers of large capital,
skill, and experience (Messrs. W. Clowes and Sons, of Duke Street,
Stamford Street), under which the publication, sale, and distribution
of the Reports are undertaken at the entire risk of the printers for an
agreed commission of moderate amount. The receipt of the subscrip-
tions is retained by the Council in order that the moneys may be
applied by them, and not the printers, to the payment to the Editors
and Reporters of the first moiety of the salaries which by the Scheme
is proposed to be guaranteed. The sum already subscribed for exceeds
HISTORY OF “THE LAW REPORTS.” 279

the amount of this first moiety; but in order that there may be no
risk or uncertainty whatever in this payment to the Editors and
Reporters, a Guarantee Fund has been formed by the voluntary sub-
scription of members of the Profession. This fund now reaches nearly
£2000 per annum, and is exclusively devoted to the Editors and
Reporters. It was first signed by the Attorney-General, Sir Roundell
Palmer, afterwards by the Lord Justice Turner, Vice-Chancellor
Kindersley, and Vice-Chancellor Wood; and after having been also
signed by many leading members of the Bar, has been since signed by
the Lord Chancellor for a larger amount than any other individual
guarantee. The printers have engaged to make up the full subscrip-
tion to £10,000, and to look exclusively to the surplus subscriptions
for payment of their charges for printing and paper. These charges
have been settled at fixed rates of moderate amount. These arrange-
ments the Council confidently represent as amply sufficient to place
the establishment of the proposed Reports upon a firm financial
basis and one perfectly satisfactory to the Editors and Reporters
appointed.

Having thus completed their financial arrangements, the Council, on
the Ist of August last, resolved that the proposed Reports should
commence upon the first day of Michaelmas Term next; and in pur-
suance of that resolution have elected the following gentlemen as
Editors and Reporters, subject to the approval of the Judges, as pro-
posed by the Bar Scheme :—

Editor, Common Law.
J. R. Butwer, Esq., Q.C.
» Equity.

G. W. Hemoine, Esq.

House of Lords.—English and Irish Appeals.
Cares CLARK, Esq.

Scotch Appeals.

J. F. Macquzen, Esq.

Privy Council.—This appointment is under consideration.

Courts of the Lord Chancellor and Lords Justices.
CapMan Jones, Esq.
Martin Warez, Esq.
R. Horton Situ, Esq.

Court of Queen’s Bench, including Appeals therefrom to

Exchequer Chamber.

Witiram Mitts, Esq.
Henry Hoxroyp, Esq. .

Court of the Master of the Rolls.
Cuar.es Marert, Esq.
J. H. Forpuam, Esq.
James Srintine, Esq.
280 HISTORY OF “THE LAW REPORTS.”

Court of the Vice-Chancellor Kindersley.
T. W. Gunwnine, Esq.
J. J. Smarts, Esq.
Court of the Vice-Chancellor Stuart.
J. W. De LonauxvitLe Girrarb, Esq.
T. F. Morsz, Esq.
Court of the Vice-Chancellor Wood.
J. B. Davinsoy, Esq.
F. G. A. Witiiams, Esq.
W. Dz Grirrita, Esq.
Court of Common Pleas, including Appeals to Exchequer
Chamber.
Joan Scott, Esq.
H. M. Bompas, Esq.
Court of Exchequer, including Appeals to Exchequer
Chamber.
James ANSTIE, Esq.
Artuur Caares, Esq.
Crown Cases Reserved.
L. W. Cave, Esq.
Hon. E. Cuanpos Leicu.
Admiralty and Ecclesiastical.
W. Eanst Brownine, Esq.
Probate, Matrimonial and Divorce.
Dr. Tristram,
R. Scare, Esq.

In the selection of these gentlemen, the Council have been guided
wholly and exclusively by the directions of the Scheme and the merits
and fitness of the gentlemen chosen. The existing authorized Re-
porters for the several Courts have therefore been invariably preferred
wherever they have consented to accept the appointment; and the
Council have every confidence in the ability and competence of all
selected, faithfully and satisfactorily to discharge their duties.

The Council have to regret that, after every possible effort within
the authority with which they are invested to secure the services of
the present authorized Reporters for the Courts of Queen’s Bench and
Exchequer and the Rolls Court, they have been unable to prevail upon
those gentlemen to accept the appointment,

The Judges will no doubt recognise the important result which will
at once be realised from the acceptance of the appointments by so
many of the authorized Reporters, namely, the discontinuance, from
the first day of Michaelmas Term next, of ten sets of Reports which
have been hitherto published separately, each independently of the
other, at irregular and sometimes long-protracted intervals, and at an
immoderate cost,
HISTORY OF “THE LAW REPORTS.” 281

The object of the Bar Scheme being the careful preparation of one
complete set of Reports, by the most able and experienced Reporters,
under independent professional control, to be published with expedition,
regularity, and uniformity, and at the moderate cost of five guineas a
year for the entire work, the Council venture, on behalf of the Pro-
fession, to present it to the Judges as a matter of public interest and
importance, and calculated to uphold the real interest of the Bar by
subjecting the exercise of one of its most important privileges to those
restrictions which the public good, the true consideration for the
privilege, requires; to facilitate the administration of justice, by
simplifying and purifying the sources of the law, and thus ultimately
to lead to important amendments in the law itself.

For the furtherance of this object, and upon public grounds alone,
the Council by this Address respectfully and earnestly request the
sanction and support of the Judges for the following purposes :—

1. That the Judges will approve of the appointment of the several
gentlemen named as Reporters to the several Courts for which they
have been selected.

2. That the Judges will be pleased to permit the Editors and
Reporters to have access to, and the use of their written judgments,
and all such papers as the Judges can control; and will also, so far as
convenient and agreeable to the Judges themselves, revise their
unwritten judgments before publication.

And 8rdly. That the Judges will recognise the Editors and
Reporters as members of the Bar exercising a professional privilege
for a public object, under responsibility, through the Council, to the
Judges, the Bar, and the Profession at large.

By order of the Council,
FirzRoy Kr.ty,
October 30, 1865. Chairman,

The Scheme with all its chances of success or failure was now
afloat. All the sunken rocks and shifting quicksands were passed ;
the vessel was fairly started on her voyage with an open sea before
her. And unless the faith on which the Scheme was rested
proved hollow, the success or failure in the future depended upon
the efficiency of those to whom the fortunes of the vessel were
entrusted, and whose legitimate interest it was expected would
operate as a security for the faithful performance of their duties ;
and the expectation has been fully realized.

Here the History of the Origin of “ The Law Reports” properly
ends. And I shall have written it in vain if I have not established
282 HISTORY OF “THE LAW REPORTS.”

in the mind of the reader the conviction that the merit of success
cannot be claimed by any one individual but must be shared
proportionably by all who voluntarily devoted their time, their
labour, and their skill for the purpose of establishing what they
satisfied themselves would, if established, be a boon to the Pro-
fession and the public. I have purposely, perhaps at greater
length than rigid criticism would approve, given, in detail, the
various proceedings taken and papers printed bearing upon,
whether for or against, the Scheme propounded by different
persons, so that those who care to read these details may mark
the means by which an honest and disinterested attempt to
achieve a public good has resulted in success without resort to
official patronage or Government support. I hope it may be
regarded as the Triumph of Unselfish Self-Reliance, by the Bar,
acting as a body through its recognised leaders.

J should not, however, do justice to the labours of my colla-
borateurs and myself if I were not to append a statement of the
subsequent proceedings of the Council up to the time when I
ceased to be a member, namely the 2nd of June, 1870, and this
statement will be found in the concluding division of this work,
and be supplementary to the main object.
HISTORY OF “THE LAW REPORTS.” 283

CONCLUSION.
A SUPPLEMENTARY CHAPTER.

Tue History of the Origin of “The Law Reports” will not be
satisfactory if it stops on the 2nd of November, 1865, the date of
their commencement. I propose to shew, as supplementary to
the origin of the Reports, the progress they made up to the
time when, finding from my other engagements I was unable
properly to discharge my duties as Vice-Chairman, I felt myself
bound to tender my resignation to the Council. This I did on
the 2nd of June, 1870, and it was on that day accepted.

The fact that at the commencement of Michaelmas Term the
Reporters appointed by the Council took their seats in the
several Courts in Westminster Hall, in Lincoln’s Inn, and at
the Rolls in Chancery Lane, was a circumstance which was
treated by the public press as one in some degree of public
interest and importance.

And an article appeared in “The Times” of the 7th of
November, 1865, of which the following is a copy :—

The new experiment in Law Reporting is now in actual operation,
under the superintendence of a Council, representing the three prin-
cipal Inns of Court and the Incorporated Law Society. Two state-
ments recently issued by this Council, the one addressed to the
Judes, the other to the Legal Profession, explain the nature of the
proposed reform, and the degree of encouragement which its authors
have received. For some time past the increasing bulk and expense
of Law Reports, the utter want of uniformity in their compilation,
and the extreme irregularity of their appearance had overtaxed even
the patience of practitioners. At last a meeting of the Bar was
called, in December, 1863, and the whole subject was, as usual,
referred to a Committee. The Committee duly entered on their
labours, and, as usual, differed among themselves not only on details
but on principles. They succeeded, however, in producing a report,
afterwards adopted by a second meeting of the Bar, recommending the
formation of a Council, with power to organize a staff of Reporters, to
contract with publishers, and to make all other necessary arrange-
ments for the establishment of one complete set of Reports under
independent yet authoritative control. It was an essential feature of

U
284 HISTORY OF “THE LAW REPORTS.”

the system that it should be governed by professional and not by com-
mercial interests, and the advantages expected from it were greater
care in the selection of cases, with less prolixity and greater prompti-
tude in publication, at a very moderate cost. The Council believe
that they are now in a position to realise these promises. Although
the number of subscribers and the amount of subscriptions have fallen
far short of their hopes, and although they have neither obtained a
Government guarantee nor conciliated the law publishers, they speak
confidently of their prospects. They have already secured the assist-
ance of the “authorized Reporters” in ten at least out of the fourteen
Courts whose decisions are to be recorded, have procured the general
sanction of the Judicial Bench, and have overcome their financial
difficulties in a manner which is said to be perfectly satisfactory to
all concerned. We shall soon possess a specimen of the results, and
if it should justify the expectations of the Council, the public, as well
as the lawyers, will have much reason to be grateful to them.

Of course such a scheme could not fail to excite much jealousy and
hostility among those whose monopoly is thus invaded. Four eminent
law publishers have forwarded a formal remonstrance to the Council,
setting forth their grievances. They resent the intrusion of “ a new
series of Law Reports, to be based upon the ruin of all existing ones,”
and “implying the annihilation of a considerable portion of their
incomes.” They submit that, as prudent men of business, they could
not lend themselves to an enterprise ‘“‘ which seemed to be deficient
in the elements of financial success,” and threatened to glut a market
already overstocked. They claim the credit of having been the first
to issue “ regular” Law Reports, and cast the whole blame of “ their
subsequent decline, arising from protracted appearance and lengthi-
ness,” upon the Reporters themselves. They consider it a great
hardship, therefore, that the Council should have enticed away nearly
all the gentlemen in their employ by the offer of higher and fixed
salaries, and should have arranged with Messrs. Clowes, the printers,
for the publication of the new Reports upon terms “which must
utterly exclude the law publishers, and all others, from the usual
trade allowance.” ‘The retailer’s profit,” they say, “is an insti-
tution of great antiquity,” older even than the Year Books, and
always heretofore respected. Having thus protested against these
infringements of their own rights, they conclude, somewhat incon-
sistently, with a tender of their services to the Council, proposing
“to become, as a united body, the publishers” of the obnoxious work,
to secure the widest possible circulation for it, and to “ discourage
whatever opposition may exist now and hereafter.” In other words,
having done their best to suppress competition, and having, as the
Council believe, mainly contributed to prevent the subscription list
HISTORY OF “THE LAW REPORTS.” 285

being filled up, they are now alarmed at the progress made by an
enterprise “deficient in the elements of financial success,” and want
to cast in their lot with it. A more unreasonable request never was
made, and the arguments by which it is supported would be rejected
by the most bigoted Protectionist. The law publishers deserve no
thanks for establishing the so-called regular Reports. It was a mer-
cantile speculation of the most ordinary kind, and the reason why a
new series is demanded is that they have supplied a bad article, at an
exorbitant price, and often too late to be of use, out of a short-sighted
regard to their own profit. The Council express much regret that no
law publisher would come forward to co-operate with them; and it
would be monstrous, indeed, if under these circumstances they were
to be precluded from making their own bargain with another firm.
As for any deviation from the rules under which they are empowered
to act, this is obviously a question between them and the subscribers,
just as the scale of remuneration is entirely a question between them
and the Reporters. The law publishers have no locus standi in the
matter, and the fact that, as they contend, they are “the only
parties prejudicially affected” is one that it would have been more
discreet to conceal.

There are other obstacles, however, quite independent of vested
interests, which may tend to defeat the sanguine anticipations of the
Council. Their scheme is, after all, a compromise between two con-
flicting theories of Law Reporting. A Report may be intended tu
preserve the essential points of a case for the purposes of future
citation, or it may be intended to furnish the public with a continuous
account of what actually took place in Court. The latter is the primary
object of such Reports as appear daily in this journal, but it is not the
primary object of those Reports which purport to embody our Case
Law. A perfect collection of precedents would consist mainly of con-
sidered judgments in which the material facts should be recited with
the utmost possible brevity. The first condition of such a publication
would be that all important judgments—that is, all that are worth
registering—should be written, and this obviously depends on the
hearty support of the Bench. Until Judges can be induced to under-
take an amount of additional trouble which might, perhaps, involve
an increase in their number, even regular Law Reporters will encroach
on the province of the newspaper or the legal periodical by endeavour-
ing to give a tolerably complete history of each case. Besides, con-
densation notoriously takes a great deal more time than Reporting in
full, and no salary that can be offered by the Council is likely to
secure the undivided services of an experienced barrister. Private
practice is a dangerous rival of Law Reporting, and the same motives
which have hitherto delayed the preparation of Reports will continue

u2
286 HISTORY OF “THE LAW REPORTS.”

to operate more or less until the Reporter becomes an officer of the
Court. Nothing but an exclusive privilege of citation would place
the new system altogether above the deteriorating influences of com-
petition, and nothing but exclusive devotion to the business of Report-
ing would insure unfailing punctuality. At the same time, this is
a step in the right direction, and bids fair to effect a considerable
improvement in the neglected art of Coke. It will be a pure gain to
the legal profession if a complete set of Reports, superior to any now
published, can hencefurward be purchased by a five-guinea subscrip-
tion. It will probably help to ‘simplify and purify the sources of
the law,” by exercising an insensible pressure on the Judges and sub-
jecting Reporters to proper control. It may thus indirectly facilitate
the process of digesting, which, as most reformers admit, must precede
that of codifying, while it can hardly fail to diminish the glorious
uncertainty which proceeds alike from the unscientific spirit of our
Common Law and from ambiguities in the judicial exposition of it.—
The Times, Nov. 7, 1865.

An article also appeared in “The Standard” of the 7th of
November, 1865, of which the following is a copy :—

The legal profession is suffering from an embarras de richesses. Its
members are encumbered by redundant provision for their conveni-
ence, and perplexed by the endeavours which learned brethren have
made for their accommodation. In the days when a decent law
library would hardly fill a small pair of bookshelves our Judges may
have had to frame their decisions pretty much at their own discretion.
The term in gremio judicis had then a real meaning, for ancient
statutes were not very lengthy, and seldom attempted to do more
than lay down in outline a rule which the Judges were to apply in
detail, and which the Crokes, and Lofts, and Yelvertons reported
with a brevity which was always quaint and not unfrequently
obscure. But that state of happy simplicity has long since passed
away. Successive generations of lawyers, each one more laborious
and painstaking than its predecessor, have enshrined the arguments
of the Bar and the deliverances of the Bench in ever issuing and con-
tinually multiplying volumes. Even in the days of the old Reporters,
who were satisfied with leaving two or three volumes of decided
cases, whose collection had been the work of their lifetime, it was a
common thing for them to apologise for adding yet another to the
many existing volumes of recorded judicial decisions. But of late
years, though the apology has been omitted, the evil has gone on
increasing to an extent positively alarming. Every barrister in want
of practice, every law publisher in quest of business, has started his
own special and particular set of Reports. Every Court has had its
HISTORY OF “ THE LAW REPORTS.” 287

own so-called official set prepared with considerable care, which the
Judges of the Court have sanctioned by allowing the Reporters to
have access to their written judgments and other papers. Reports of
this class have been issued with great deliberation, and generally a
year or so after the decisions had been given. But the constant
demand for rapid publication has brought into the field a number of
rivals whose claim to professional favour rests mainly upon the short
interval at which the latest decisions were printed and published, so
as to keep the hardworking lawyer continually abreast of the judge-
made law. Of course, buth of these classes have their peculiar value,
and those interested in their publication can easily make out a case in
their favour. Indeed, they have done this only too successfully.
They have won for themselves a sufficient amount of support to give
their proprietors a vested interest in their continuance, and they have
thus been enabled to add to the treasures of legal lore in a degree
which render it impossible for any man to keep pace with them.
The volumes of Reports already published number thirteen or fourteen
hundred, and to this formidable aggregate thirty or forty are every
year added. Nor has the increase taken place in numbers only.
There has been a growing tendency to make every individual Report
more copious, and of necessity more lengthy, than was of old time
deemed desirable, so that the library of a lawyer in full practice
requires to be continually recruited with a mass of Reports, to read
which becomes every year a more hopeless task.

It is not very wondeiful that the Profession have got somewhat
weary of this state of things. That judicial decisions should he
accurately reported and readily cited are matters of public necessity,
but the indefinite multiplication of Reports serves no purpose but
that of private interest. ‘The existing Law Reports are nothing more
than commercial speculations, and have only obtained a quasi? official
character by favour of the learned Judges, though it is but fair to
admit that this amount of recognition has been accorded on account
of the manner in which the gentlemen engaged upon them have per-
formed their duties. But this only mitigates and does not remove
the evil of enshrining the decisions of to-day, by which future Judges
are to shape their legal course, in such a multitude of volumes. And
then the cost becomes a serious consideration. As the law stationer
in “Bleak House” said, not to put too fine a point on it, everything
connected with the law is rather dear, and assuredly law books are no
exception to the rule, though, perhaps, the public may contemplate
the spectacle of a publisher fleecing a lawyer with no very great
dissatisfaction. The Profession, however, take a different view of it.
They have, for a long time, been considering proposals for mitigating
the evil, and they have now propounded a scheme which seems to have
288 HISTORY OF “THE LAW REPORTS.”

many of the essentials of success. They contemplate publishing a
‘ set of Reports, which shall give, with promptitude and accuracy, the
most important cases in all the Courts. The Reporters are to be
barristers selected by the Judges, who are to have access to all papers
at the disposal of those learned functionaries. Unwritten judgments
are to be revised before publication, and the Reporting staff is to be
recognised “(as exercising a professional privilege for a public object,
under responsibility to the Judges, the Bar, and the Profession at
large.” In the first instance, and as far as possible, the work is to be
done by the present official Reporters. It may be looked upon as a
beginning of the end of the evils hitherto complained of, that the
arrangements thus far made will ensure the discontinuance of ten
sets of Reports hitherto published separately, but which will now
become merged in publications of the Council of Law Reporting,
their editors having accepted appointments on the staff of the new
organisation.

The commercial difficulty has hitherto been the principal obstacle
to the success of any scheme of this kind originating exclusively
with the Profession. The printers and publishers have been able to
hold their own against the lawyers, and they prophesied a similar
fate for the present endeavour. But there would seem to be some
reason to think that this has now been surmounted. A Government
guarantee was in the first instance hoped for, but this has very
properly been refused, as it would be manifestly unfair to take the
public money in support of what is, after all, only a private specula-
tion in which a great number of persons are interested. But failing
to get help from the funds of the nation the gentlemen of the long
robe have fallen back upon their own. The principle of a guarantee
fund, which has done so much for Industrial Exhibitions, has been
resorted to by those who aim at publishing judicial decisions. Its
object is to provide for the salaries of the Editors and Reporters, and
this has been accomplished to an extent sufficient to justify the
Council in commencing operations. They have arranged with Messrs.
Clowes & Sons to take the risk of publication at an agreed rate of
commission, and the agreement is believed to be sufficient to place
the undertaking on a perfectly sound financial basis. Whether this
is so time will show, but it is a matter in which the public are only
indirectly concerned. It would certainly be somewhat discreditable
to a large and influential body like the Bar, whose members are
commonly supposed to be rather too sharp for ordinary men to deal
with, were they to fail in this attempt to manage their own pro-
fessional affairs. But we must own that we desire the success of the
scheme on public grounds. Considering how greatly our laws are
modified and influenced, nay, in some cases virtually repealed, by the
HISTORY OF “THE LAW REPORTS.” 289

decisions of our Judges, we hold it as of the last importance that
those decisions should be accurately and carefully reported. Grant-
ing that these essentials have been already attained there remains the
further desideratum—that it should be in the power of every
practitioner to obtain the record of these decisions in a form compact
and accessible, ata moderate price, andin reasonable time. Hitherto
as the Council complain, the more authoritative series have only been
procurable “separately, at irregular, and sometimes long protracted
intervals, and at immoderate cost.” We tiust that experience will
verify the hope they express, that by subjecting one of the most im-
portant privileges of the Profession to the restrictions which the
public interest requires, they may facilitate the administration of
justice by simplifying and purifying the sources of the law, and
ultimately leading to important amendments in the law itself The
Standard, Nov. 7, 1865.

An article also appeared in “The Spectator” of the 18th of
November, 1865, of which the following is a copy :—

THE NEW SCHEME OF LAW REPORTING.

The establishment during the present term, for the first time in our
legal history, of a consolidated system of Law Reporting at Lincoln’s
- Inn and Westminster, under the patronage of the Lord Chancellor,
and with the hearty concurrence of the Bar, is too important an event
‘to be allowed to pass without notice. It is a striking instance of the
success which sometimes attends the disinterested energy of a single
man. It is only two years ago that Mr. Daniel, in a printed letter
addressed to the Attorney-General, and through him to the Profession
and to the public, seriously called attention to the evils of the existing
position of the Law Reports. The subject was not new. It had been
taken up by the Law Amendment Society nearly twenty years before.
But it required some one of acknowledged position and force of
character to quicken into life the theories of the Law Society. This
service has been rendered by Mr. Daniel. Sir Robert Peel’s magnani-
mous tribute to Cobden was not more deserved, than that which the Pro-
fession is willing to pay to the single-minded and judicious labours
of Mr. Daniel. The new scheme is the personification of one simple
idea, namely, that the machinery by which case-law is preserved ought
not to be the result or the creature of commercial enterprise, but
should be supplied and controlled by the Bar. Law publishers may
undersell each other in other ways, but they ought not to have the
opportunity of directing the manufacture of law. When it is remem-
bered to how great an extent our jurisprudence is composed of judicial
290 HISTORY OF “THE LAW REPORTS.”

decision, the great importance of providing means for its accurate pre-
servation will not be denied. A few words will explain what has
been the system of Law Reporting in times gone by and what is its
present condition. Plowden says, ‘‘ That in early times four Reporters
were appointed to commit to writing, and truly to deliver, as well the
words spoken as the judgments and reasons therefor given in our
Courts of Westminster, who conferred all together at the making and
setting forth any book of Reports.” The result of this system was
the production of the “ Year Books,” which contain in clear and con-
cise language, what has been termed, in contradistinction to statute
law, the lea non scripta, from the reign of Edward I. till the latter part
of the reign of Henry VIII. These reports are admirable records, so
far as they go, of judicial proceedings. They give a short statement
of the case, the leading points in the arguments of counsel on each
side, and the decision and reasons of the Judge. They were not, how-
ever, generally circulated among the Profession. They were for the
most part preserved in manuscript. Some indeed have been printed
for the first time within the last few years. It is not known by whom
the four Reporters spoken of by Plowden were appointed, although
judging from the recital contained in the letters patent appointing
two Reporters, which Bacon induced James I. to seal, to the effect
that it was thought “good to revive and renew the ancient custom of
appointing some grave and learned lawyers to attend in Court for the
reporting of judgments and resolutions of law,” it is probable that
they were appointed by the Crown. If this were so, it would go far
to explain why in Lord Bacon’s time they had ceased to be efficient,
and why the new Reporters appointed under his auspices also soon
fell into disrepute. The system produced sinecure offices. It lacked
the responsibility which would necessarily have attached to the service
if the master had been not the Government, but the Profession. Since
the time of Lord Bacon, the record of the cases heard and determined
in the Courts of Law and Equity has been left to a great extent to
chance. Whole years might be pointed out in comparatively modern
times when the judicial decisions in some of the Courts were almost
unreported. The record of what, without much of poetic licence, has
been described as

“That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.”

was left to depend upon the capital of law publishers, or the diligence
of the barristers who have been employed by the publishers for the
purpose of reporting what takes place in Court. It is true that some
HISTORY OF “THE LAW REPORTS.” 291

of the Judges were accustomed to revise the notes of the so-called
“authorized” Reports, but the result of this process often afforded an
illustration of the maxim that “an ox and an ass should not plough
together.” Great names are indeed to be found among the Reporters,
but in more recent times the reputation as lawyers of many of the
“authorized Reporters” has been such that they would have stood
no chance whatever for the office under a system of open competition.
The effect of delay and incapacity in these quarters was more than
negative. It gave rise to new schemes of Law Reporting. Advantage
was taken of that privilege existing in the Courts which permits any
barrister, whether engaged as counsel in the case which is under con-
sideration or not, as amicus curie, toinform the Judge of any previous
decision upon the subject of the case within his own knowledge. The
respect paid by the Bench to the Bar has always insured the respect-
ful reception of such communications. The idea was accordingly con-
ceived by the proprietors of a periodical law paper that if concise and
speedy Reports could be produced, authenticated by the name of a
barrister, these would receive at any rate as much consideration in
the Court as was paid to the oral statements made by the amici curie,
and that thus the grievances arising from the existing system of
authorized Reporters would be remedied. The idea was carried out,
and in course of time these Reports were allowed to be cited as autho-
rities as freely as the more privileged series. The remedy, however,
was worse than the disease. A spirit of free trade, and also, it must be
said, of wholesale piracy, sprang up, and at the end of last term there
were no less than 125 barristers daily employed in recording these
solemn legal determinations, which according to an old legal maxim,
which is by no means a legal fiction, every one is expected to know.
Of course it is absurd to suppose that the Profession could keep pace
with this mass of judicial reproduction, yet it was felt to be dangerous
to neglect these Reports. That for years the Profession should have
borne such a system patiently would be truly astounding, were it not
for what Lord Westbury has well called “the blunted sensibility of
lawyers to the evils with which they have been long familiar.”

The public press had from the first treated the efforts of the
Bar in a more generous and liberal spirit than any of those
publications which assumed to themselves the function of repre-
senting the interests of the Legal Profession.

The first parts of each of the Common Law and Equity Series
of the Reports were prepared and ready for publication on the
Ist of January, 1866, and on that day Messrs. Clowes sent the
first copies to me as Vice-Chairman. On examining them I was
no

92 HISTORY OF “THE LAW REPORTS.”

quite satisfied with the manner in which the work of the several
parties had been done, and so expressed myself to Messrs.
Clowes. I afterwards went to their publishing office, 51 Carey
Street, to see the arrangements they had made for delivery and
distribution, and with these I was satisfied. From that day the
ultimate success of “The Law Reports” was to me no longer
doubtful, and I have not been disappointed. I may here mention
a little incident which I think worthy of being recorded. Lord
St. Leonards had become a subscriber to the Reports, and the
monthly parts for January, February and March, 1866, had been
punctually delivered to him. The adjourned Council of the
Benchers of Lincoln’s Inn was held on the 14th of March, 1866,
Lord St. Leonards was there, Mr. Amphlett and I were there
also, and we were talking together. Seeing us, his Lordship
came up and addressing himself to me, said “1 owe you, Mr.
Daniel, thanks for those ‘Law Reports,’ I have found the
advantages of them as compared with the old authorized Reports
upon which I had formerly to depend, and I owe an apology also
for the attempt I made at the Council in January, 1865, to stop
the Bar Scheme. Idid not then know that the Scheme had been
adopted by the Bar.” I told his Lordship that no apology was
necessary, and that thanks were not due to me alone, I was only
one of a body who had laboured with me; but if any one was
more than another entitled to thanks it was Mr. Amphlett, who
was chairman of the Committee and presided at every meeting.
The conversation ended agreeably, and Lord St. Leonards con-
tinued a supporter of the Reports until his death. In the month
of July, 1866, Sir FitzRoy Kelly was raised to the bench as
Lord Chief Baron of the Exchequer, and by thus becoming a
member of Serjeants’ Inn he ceased to be a member of Lincoln’s
Inn, and thereby vacated his seat as a member of the Council of
Law Reporting. At a special Council of the Benchers of
Lincoln’s Inn held on the 26th of July, 1866, upon a motion
made by me, it was ordered that Sir Roundell Palmer, Q.C., be
appointed a member of the Council of Law Reporting in the
place of Sir FitzRoy Kelly who had ceased to be a member.
And at a meeting of the Council of Law Reporting held on the
31st of July, 1866, I, as Vice-Chairman, reported the resignation of
HISTORY OF “THE LAW REPORTS.” 293

Sir FitzRoy Kelly. And the resolution of Lincoln’s Inn appoint-
ing Sir Roundell Palmer a member of the Council in the place
of Sir FitzRoy Kelly being read, it was moved by me and
seconded by Mr. Williams that Sir Roundell Palmer be appointed
permanent Chairman of the Council; and I may here state that
he continued to preside as Chairman until his acceptance of the
Great Seal in 1872. At the same meeting it was moved by me
and seconded by Mr. Giffard, and resolved, that the congratula-
tions of the Council be offered to Sir FitzRoy Kelly on his
elevation to the office of Lord Chief Baron of Her Majesty’s
Court of Exchequer at Westminster, and that the thanks of the
Council be conveyed to Sir FitzRoy Kelly for his assiduous
services as a member of their body, and for his unremitting
labour and uniform courtesy as their permanent Chairman. This
resolution was communicated to the Lord Chief Baron by the
Secretary and acknowledged by his Lordship in a letter dated
the 4th of August, 1866. Ata meeting of the Council of Law
Reporting held on the 30th of October, 1866, Sir Roundell
Palmer in the chair, the letter from Sir FitzRoy Kelly was pro-
duced, and, as entered on the minutes, is as follows :—

The Chauntry, Ipswich,
August 4, 1866.
My prear Mr. Hopwoon,

I beg to acknowledge with many thanks the resolution of the
Council of Law Reporting which you have been good enough to
convey to me, and I am much gratified by their approval of my humble
endeavours (in which I have but seconded the great and successful
efforts of Mr. Daniel) to support and promote an undertaking which
I believe will prove of lasting and incalculable benefit to the legal
profession and the administration of the Law. With all good wishes
to the great and good work in which the Council are engaged.

I remain, faithfully yours,
FitzRoy Ketty.

At the same Council I presented a letter addressed to me as
Vice-Chairman by Mr. Hurlstone, of which the following, as
entered on the minutes, is a copy :—

8 Harcourt Buildings, Temple,
10th October, 1866.
Dear Sir,
Iam informed that the funds of the Law Reports are now
sufficient to pay the Reporters their full salaries. If that be so, the
294 HISTORY OF “THE LAW REPORTS.”

obstacle which prevented my joining them is entirely removed, and I
am therefore unwilling to prolong a conflict which has always been
unpleasant to me.

I remain, yours truly,
W. T.S8. Daniel, Esq. : E. T. Hurtstone.

I wished that Mr. Hurlstone should withdraw the letter, as he
knew that Reporters for the Exchequer had been appointed; but
he did not—and it was my duty as Vice-Chairman to lay his
letter before the meeting. Upon the letter being read, it was
ordered that the Secretary do write to Mr. Hurlstone, stating the
regret of the Council that existing arrangements prevent them
from accepting his proposal.

At the same Council I presented a letter dated the 26th of
October, 1866, from the Solicitor-General for Ireland, addressed
to meas Vice-Chairman. I should state that I had for some time
previously been in communication with some of the leaders of
the Irish Bar upon the subject of Law Reporting, and had given
them all the information in my power as to the system established
here, and they had resolved to establish a Council of Law Re-
porting for Ireland similar to ours. The letter from the Irish
Solicitor-General, which I presented, and which was ordered to
be entered on the minutes, is as follows :—

5 FitzWilliam Place, Dublin.
26th October, 1866.
Dear Sir,

As Chairman of this day’s meeting of the Council of Law
Reporting in Ireland, I have been deputed to write to you on their
behalf. I have to thank you personally for the trouble you have so
kindly taken for us, and also to express our obligation to your Council
for the assistance already rendered to our undertaking. I am directed
to request of your Cuuncil the favour of giving further publicity to
our project among your subscribers by drawing their attention to it
in any way that may be most convenient to you, and also, if the
opportunity offer, to bring it to the notice of the Benchers of your
Inns of Court and your other legal bodies. A copy of our Scheme
has been forwarded to each of your Judges and Law Officers, and I
enclose you one herewith and also a copy of our Circular. Hoping
that you will excuse this trouble, I have the honour to remain,

Your faithful servant,
W. T.S. Daniel, Esq., Q.C. H. E. CHatrerton.
HISTORY OF “THE LAW REPORTS.” 295

Upon the letter being read, it was ordered that the Scheme of
the Irish Bar Committee be published in “ The Weekly Notes,”
and that every assistance be given to further the object of the
Scheme. The Scheme was published in “The Weekly Notes,”
and I was authorized to inform the Solicitor-General, Sir H. E.
Chatterton, of the resolution come to by the Council, and I
did so.

A meeting of the Council of Law Reporting was held on the
22nd of December, 1866. The subscriptions to the Law Reports
having amounted to a sum sufficient to meet all the liabilities of
the Council, and to render any further guarantee unnecessary,
it was ordered, That the Honourable Societies of Serjeants’ Inn
and Gray’s Inn be again invited to send representatives to the
Council; and that as the original number of the Council in the
event of a certain guarantee being given, but which was not
required, was to consist of twelve members, it was desirable that
that number should be retained; and for this purpose it is
further resolved that the Societies be requested to send two
members each to the Council instead of one, as formerly proposed.

The importance of this resolution as well as its object was
apparent, and it was also plain that the resolution was not in
strict accordance with either the Bar Scheme or the previous
resolution of the Council. And it was passed at a meeting with-
out previous notice, and when only three members besides myself
were present. These three were Mr. Giffard, Mr. Forsyth, and
Mr. Cookson. The desire to present to the Profession and the
public a complete Council was the inspiring motive,and every
member of the Council, as soon as informed of the resolution,
heartily approved of it. It was equivalent to a Christmas invita-
tion to peace and goodwill. Happily it was so treated! Ata
Pension of Gray’s Inn held on the 16th of January, 1867, “It was
ordered, That the undermentioned Masters of the Bench, viz.,
James Barstow, Esq., and Lewin Taverner, Esq., be and they are
hereby appointed members to repres»nt this Society on the
Council of Law Reporting. Daniel Boswood, Steward.”

This resolution was forwarded by the Steward to the Secretary
of the Council of Law Reporting.

The first meeting of the Council in 1867 was held on the Ist
296 HISTORY OF “THE LAW REPORTS.”

of February, and was numerously attended—Sir Roundell Palmer
in the chair, and Mr. Barstow and Mr. Taverner attended and
were welcomed as Representatives of Gray’s Inn. I, as Vice-
Chairman, was then requested to prepare the Annual Report for
the year 1866, to be submitted to the next meeting. The Report
was not then presented, and was ordered to stand over until it
was seen whether Serjeants’ Inn would or would not send repre-
sentatives to the Council.

Ata meeting of the Council held on the 30th of April, 1867,
Sir Roundell Palmer in the chair, a letter was read from the
Treasurer of Serjeants’ Inn dated the 16th of April, 1867, stating
that the Lord Chief Baron had given notice of his intention to
bring forward the consideration of the question whether the
Society should send Representatives to the Council on the first
day of next Trinity Term.

On the 28th of May, 1867, the Secretary received from the
Treasurer of Serjeants’ Inn a letter addressed to him, of which
the following is a copy :—

1 Serjeants’ Inn, Chancery Lane,
28th May, 1867. ;
My Dear S&ir,

I have the satisfaction to inform you that at our “Green
Cloth” last evening, the Lord Chief Baron’s motion, that this Society
shall send two Representatives to the Council of Law Reporting, was,
I may say, almost unanimously agreed to. Our Representatives are,
Mr. Serjeant Hayes and Mr. Serjeant Pulling. Should the Council
require further explanation, be pleased to address me as above.

The Secretary to the Council E. §. Bain,
of Law Reporting Treasurer.

The next meeting of the Council was held on the 17th of June,
1867. Iwas in the chair at the sitting of the Council, and had
the pleasure, with the other members then present, of welcoming
Serjeant Hayes and Serjeant Pulling on their attendance as
Representatives of Serjeants’ Inn. The letter of the Treasurer
of Serjeants’ Inn was read and ordered to be entered on the
minutes. Very shortly afterwards Sir Roundell Palmer came
in, and be took the chair in my place; and, after other business
had been disposed of, it was ordered that the First Annual
Report, already prepared by me, be, with some amendments and
HISTORY OF “THE LAW REPORTS.” 297

additions then made, adopted by the meeting and signed by the
Chairman. This was done, and the following isa copy :—

COUNCIL OF LAW REPORTING.

 

SMembers of the Council.

Chairman—Str RounpeLt Patmer, Kyrt., M.P., Q.C.
Vice-Chairman—W. T. 8. Danret, Esq., Q.C.

Ly-Officto Members.

Tue ATTORNEY-GENERAL, Sir Jonn Rott, Knt., M.P.
THE Soticrtor-GENERAL, Sir J. B. Karspake, Kyrt., M.P.
Tue Queen’s Apvocats, Sir Rosert Puitumore, Kxr.

Elected Members.

Mr. Serseant Hayes
Mr. SERJEANT PULLING

Sir Rounpett Parmer, Kyr., M.P., Q.C.
W. T.S. Dantet, Esq., Q.C.

\
f
}
Wittiam Forsyta, Esq., Q.C. \

Serjeants’ Inn.
Lincoln’s Inn.
Inner Temple.

Grorce Markuam Girrarp, Esq., Q.C.
T. W. Greent, Esq., Q.C.
JoHn Gray, Esq, Q.C.

JAMES Barstow, Esq.
Lewin Taverner, Esq.

Middle Temple.

Gray’s Inn.

Witiam Wittiams, Esq. (Firm—Messrs. Currie &
Williams), Lincoln’s Inn Fields Incorporated
W.S. Cooxson, Esq. (Firm—Messrs. Clayton, Cookson, { Law Society.
& Wainewright), 6 New Square, Lincoln’s Inn

Secretary—J ames Tuomas Hopwoop, Esq., 3 New Square,
Lincoln’s Inn.

 

FIRST REPORT.

Tue Council of Law Reporting, in submitting their First Report,
have much satisfaction in being able to state that their proceedings
hitherto have been attended with success greatly beyond what was
anticipated at the outset. In the endeavour to establish a set of
198 HISTORY OF «THE LAW REPORTS.”

Reports to be prepared and published solely in the interest of the
?rofession and the public, and without any regard to private advan-
age or commercial profit, it was to be expected that many difficulties
vould have to be encountered. The novelty of such a design was,
vith some, an objection which impeded all consideration of its merits ;
thers disbelieved that such a work could be undertaken without a
atent expectation of private gain, which time would soon expose ;
vhile the resistance of those whose commercial interests would be
yrejudiced by its success combined, with these and other elements of
ypposition, to create an array of difficulties which could only be sur-
nounted by resolute perseverance in the endeavour to accomplish a
vork believed to be of great public utility. The Council having the
3ar Scheme for their guide, have found in a liberal interpretation of
ts provisions a comparatively easy solution of the chief difficulties
hey have had to encounter; and they desire to attribute, to a great
xtent, the amount of support and confidence which they have from
he first received, and still continue to receive, from the Judges, the
3ar, and the Profession at large, to the judicious and practical sugges-
ions embodied in that Scheme—the result of the assiduous and
lisinterested labours of the Bar Committee, continued for a period of
ix months, during the busiest part of the legal year.

A short statement of facts, many of them already known, will serve
o explain the difficulties encountered and the progress effected.

The first step required by the Bar Scheme was to secure the con-
urrence of the Inns of Court and the Incorporated Law Society in
he formation of the Council, as a body representing the interests of
he various branches of the Profession, to which the control and
nanagement of the undertaking was to be entrusted. Endeavours
vere at once made to attain this object. The Law Officers ur the
Yrown, who were proposed as ex-officio members, have from the first,
nd throughout the several changes which have since occurred in
he distinguished individuals filling those high offices, given their
villing and powerful support to the Council, by identifying them-
elves with its proceedings and, when occasion required, assisting by
ttendance and advice. The Honourable Societies of Lincoln’s Inn,
he Inner Temple, and the Middle Temple, and the Incorporated Law
society, readily consented to concur, and at once appointed the pro-
ised number of representatives; but Serjeants’ Inn and Gray’s Inn,
or reasons of prudence and delicacy, at first declined co-operation.
t is, however, gratifying to be enabled to state that recently both
hose learned societies, having had the opportunity of witnessing the
rroceedings of the Council, the manner in which the undertaking has
een conducted, and the amount of support it was receiving from the
-rofession, have signified their adhesion to the Scheme, and appointed
HISTORY OF «THE LAW REPORTS.” 299

representatives to the Council, thus completing the proper constitu-
tion of the body of individuals to whose management and control it
had been proposed to entrust the preparation and publication of the
Reports of the judicial decisions in our Superior Courts, which con-
stitute the Case Law of this country. It only now remains to obtain
for this body at a proper and convenient season a Charter of Incorpo-
ration, as suggested by the Bar Scheme, the grant of which the
Council hope the Lord Chancellor and others in authority may deem
it for the public interest to sanction and facilitate.

As the Reports to be established were intended to be self-supporting,
the attention of the Council was first directed to laying the founda-
tion of prudent financial arrangements, and in these they found useful
suggestions in the Bar Scheme. Having failed to receive—and they
could not reasonably expect to receive—any encouragement or support
from the Law Publishers, whose interests were supposed to be bound
up in a system of Law Reporting which it was the object of the Bar
Scheme, in the interest of the public, entirely to change, the Council
were left at liberty to entertain a proposal which was made to them
by the old-established printing firm of Messrs. W. Clowes & Sons to
undertake the printing, publication, and distribution of the Reports
upon terms which absolved the Council from all pecuniary liability,
while it left to them the receipt and application of all moneys paid
for subscriptions. This proposal was carefully considered; and in the
discussion and settlement of its terms the Council were met by Messrs.
Clowes in a spirit of prudent liberality, which they desire to take
this opportunity of acknowledging. And the experience which the
Profession have now, for eighteen months, had of the manner in which
Messrs. Clowes have done their part in producing a work which, as
regal. , paper, type, printing, style, and general regularity of publica-
tion and distribution, is almost all that could be desired, induces the
Council to believe that their acceptance of Messrs. Clowes’ proposal
was not only justifiable but judicious.

The basis of financial arrangements being thus laid in the contract
with Messrs. Clowes, the next step to be taken by the Council was
the selection of the Editors and Reporters. In this the Council
followed both in letter and spirit the provisions of the Bar Scheme,
by offering an appointment to every member of the Bar who was then
engaged as Reporter in the fourteen then existing series of authorized
Reports. With only three exceptions the offer was accepted in a spirit
of generous confidence.

It was with great regret that the Council met with refusals from
Mr. Beavan, in the Rolls Court, Messrs. Best and Smith, in the Court
of Queen’s Bench, and Messrs. Hurlstone and Coltman, in the Court
of Exchequer; and although the Council had no right or desire to

X
300 HISTORY OF «THE LAW REPORTS.”

endeavour to control the conduct of gentlemen who were the sole
judges of what was best for their own interests, they nevertheless
thought that they were only properly endeavouring to promote the
public beneficial object of the Bar Scheme in attempting, by personal
communications and explanations, to remove objections and obtain
assent. That these attempts failed the Council at the time regretted ;
and, so far as the subsequent success of the Scheme may have been
productive of loss to any individual dissentient, their regret remains.
Upon the appointment of Mr. Beavan in June, 1866, to the office of
Examiner in the Court of Chancery, his Lordship the Master of the
Rolls immediately communicated his unsolicited approval of the Re-
porters who had been appointed by the Council to the Rolls Court—
an approval which his Lordship was pleased to state had been with-
held only out of a due regard to the interests of Mr. Beavan. Thus,
with the exception of completing arrears, the Profession will for the
future be relieved from the unnecessary burden of a separate series
of authorized Reports for the Rolls Court. At the commencement of
the present year the series of Reports in the Exchequer, furnished by
Messrs. Hurlstone and Coltman, ceased of their own accord, and at
the same time an attempt which had been made to establish a separate
series of Reports in the Common Pleas by Messrs. Harrison and
Rutherford, in leu of the series of Common Bench Reports—which,
by the acceptance of Mr. Scott of an appointment under the Council,
had merged in the Law Reports—was discontinued, and the result is
that out out of fourteen separate sets of authorized Reports, which
existed up to the end of Trinity Vacation, 1865, one only now remains
—that of Messrs. Best and Smith, in the Queen’s Bench; and the
Council feel they are but giving utterance to the wishes of the Profes-
sion in expressing a hope that some opportunity may soon present
itself for effecting, upon satisfactory terms, a fusion of that series with
“The Law Reports.” And here it may not be out of place to observe
that out of the four Weekly Serial Reports which previously existed,
“ The New Reports” were abandoned early in the year 1866, and that.
at the beginning of the present year, 1867, “The Jurist” and its
Reports ceased to be published. Of this last work, conducted as it
had been for nearly thirty years with ability and spirit, the Council
would desire to express their regret that the voluntary sacrifice of a
work which had rendered such good service to the Profession should
have been preferred and resolutely effected without any communica:
tion with them.

Despite the disappointment occasioned by the few refusals they re-
ceived, the Council had little difficulty in completing their selection
of the gentlemen whose names are familiar to the Profession as
Editors, Secretary, and Reporters. In this selection the Council were
HISTORY OF “THE LAW REPORTS.” 301

free from the usual embarrassments of patronage, and they believe
that the services of those gentlemen, as hitherto rendered, while
inviting the sharp but candid criticism of the Profession, have secured
no ungrudging expression of its general satisfaction and approval. To
Sir FitzRoy Kelly, who filled the office of Chairman of the Council
from the commencement until his elevation to the Bench as Chief
Baron of the Court of Exchequer, the warmest acknowledgments are
due for the unremitting attention and fustering advocacy with which,
from the first and throughout, he has promoted the Scheme, and for the
interest with which he still regards it. The Council bear constantly in
mind the provision of the Bar Scheme, which empowers them, if they
deem it desirable, to make arrangements for the discontinuance of any
existing series of Reports by compensation out of surplus profits; and
it would be a satisfaction to them to exercise that power if a fitting
opportunity should arise, with the full consent of the parties to be
affected by it. But the judgment and wishes of the Profession, as
manifested by the support awarded to the Council, are the best if not
the only means by which any such result could be accomplished.

The Subscribers for the year 1866 exceeded 4000 in number; and
the ready adhesion of so many members of the Profession dispersed
throughout the United Kingdom, India, the Colonies, and even the
United States of America, may be accepted as evidence that the system
of Reporting proposed by the Bar Scheme was adapted to supply a
real want of the Profession and the public, and that the arrangements
of the Council have been on the whole satisfactory.

The amount of Subscriptions having doubled the estimate suggested
by the Bar Scheme, the Council felt themselves justified in at once
giving effect to the suggestion of the Scheme for the establishment of
a Weekly in addition to the Monthly Series. And with this view they
established “ The Weekly Notes,” which were and are intended only
to inform the Profession of the current decisions of the Courts; and
being necessarily prepared in haste, and without the opportunity of
correction by careful reference to papers, and without judicial revision,
are not intended or adapted for citation as authority, though useful for
information. In further addition to ‘“ The Weekly Notes” the Council
have also supplied, under a special arrangement with the Queen’s
Printers, an authorized edition of “ The Statutes,’ which are published
in parts quickly after the passing of the Acts. And thus the Council
have been enabled to apply the funds hitherto liberally supplied by
the Profession in furnishing for the prepaid annual Subscription of
five guineas a complete body of the Case Law and Statute Law of the
year :—the Statute Law in an authorized form, receivable as evidence
in all Courts and places; the Case Law in a form which, possessing
the advantages to a greater extent than ever heretofore realised, of

x2
302 HISTORY OF “THE LAW REPORTS.”

skilful preparation, careful editing, and judicial revision, is calculated
to acquire and maintain its recognition by the Judges, the Bar, and
the entire Profession as the standard of authority.

The Council, however, beg to remind the Profession that the con-
tinued success of the undertaking thus far secured depends entirely
upon their voluntary approval and support; and as the Council have
not hitherto felt themselves justified in applying the funds entrusted
to them in expensive advertisements, and employ no agents to canvass
for or collect Subscriptions, they hope that each Subscriber will feel
it for his interest to support them by seasonable advocacy of the
Scheme amongst his professional brethren, by the friendly communi-
cation of whatever errors or deficiencies he may discover, and of well-
considered suggestions for amendment —so that the work may continue
to be conducted in the spirit in which it has been commenced, as a
work of public utility, tending to the improvement of the Law and
the advancement of the administration of justice.

The accounts for the year ending the 31st of December, 1866, have
been duly audited; and after taking credit for the stock on hand, at
the Subscription price, the expenses of the year, including the addi-
tional cost of ‘‘ The Weekly Notes” and “ The Statutes,” and payment
in full of the salaries of the Editors, Secretary, and Reporters have been
met. The number of copies printed of “ The Law Reports” and “ Sta-
tutes” for 1866 was 5000; of these some copies still remain on hand.
But “ The Weekly Notes” are out of print. And although Subscriptions
for the year 1866 are still being accepted by the Council, so that the
remaining numbers on hand may ere long be exhausted, the Council
have no intention at present of increasing the Subscription for those
numbers.

By Order of the Council,
RounpDELL Patmer,
Chairman.

Bencuers’ Reapine Room, Lincoun’s Inn.
June 17, 1867.

On the 21st of March, 1867, I was appointed by Lord Chancellor
Chelmsford, County Court Judge of Circuit No. 11, which com-
prised Bradford and Keighley, as well as some other places in the
West Riding of Yorkshire, and Burnley, Colne, and other places
in Lancashire. After a very short experience I found a strong
desire manifested on the part of the public, the profession, and
suitors to increase the usefulness of the Courts by frequent resort
to them—a desire which I was not unwilling to encourage. And
I found that this encouragement would be most effectually given
HISTORY OF “THE LAW REPORTS.” 803

by my permanent residence in the Circuit. I therefore made the
necessary arrangements, and in July, 1867, left London and took
up my abode in the neighbourhood of Skipton-in-Craven—a
place which was on my Circuit, and conveniently situated, being
about equidistant from Bradford and Burnley—the two extremes.
This arrangement rendered it difficult for me to attend the
meetings of the Council of Law Reporting and discharge my
duties of Vice-Chairman as regularly as I had previously done,
though I made it my duty to attend whenever the exigencies of
my Circuit left me at liberty to do so. But any shortcomings on
my part were kindly overlooked by the Chairman and the other
members of the Council; and I should be ungrateful if I did
not record the zeal and earnestness with which Mr. Serjeant
Pulling, from the time he joined the Council, devoted himself to
to the welfare of the Scheme, which, on joining, he found in
prosperous circumstances, with every prospect of continuance and
improvement under judicious management.

The time having arrived for the preparation of the Annual
Report for 1867, at a meeting of the Council held on the 30th
of April, 1868, from which I was unavoidably absent, Sir
Roundell Palmer in the chair, the subject of the preparation of
the Annual Report for 1867 was discussed, and it was resolved
that the Secretary be requested to communicate with the Vice-
Chairman and to ask him if he would kindly undertake the
preparation. And at the same meeting it was resolved that a
Committee of General Supervision be appointed to inquire and
report to the Council on any matters relating to the preparation
and publication of the Reports, and that the same do consist of
the Chairman, the Vice-Chairman, Mr. Cole, Mr. Serjeant Pulling,
and Mr. Cookson. Both these resolutions were communicated to
me by the Secretary, and I undertook to prepare the Annual
Report for 1867 as requested, and accordingly prepared it. And,
at a meeting of the Council held on the 30th of July, 1868, from
which I was also unavoidably absent, Sir Roundell Palmer in
the chair, the Annual Report for 1867 was discussed. The Report
prepared by me as Vice-Chairman was laid before the meeting,
and with certain alterations was adopted, and it was resolved that
the Report with the Financial Statement be published in “The
304 HISTORY OF “THE LAW REPORTS.”

Weekly Notes,” and circulated among the Profession generally.
And the following is a copy :—

COUNCIL OF LAW REPORTING.

 

{Members of the Council.

Chairman—Sir RounpeELt Patmer, Knt., M.P., Q.C.
Vice-Chairman—W. T. 8. Dantet, Esq., Q.C.

. Sy-OUcto Plembers.

Tue ATTORNEY-GENERAL, Siz J. B. Karsiake, Kyt., M.P.
Tue Soiicrror-GENERAL, Sir W. Batiot Brerr, Knt., M.P.
THE QUEEN’s ADVOCATE-GENERAL, Sin Travers Twiss, Knr.

lected Members.
Mr. SerRsEANT Hayes
Mr. SERJEANT PULLING

Str RounpeLtt Pater, Knt., M.P., Q.C.
W. T.S. Danie, Esq., Q.C.

Serjeants’ Inn.

\ Lincoln’s Inn.
Wiuiam Forsyru, Hsoa., Q.C. \ I
H. Warwick Cots, Esa. Q.C. ( Inner Temple.

T. W. Greene, Esq., Q.C.
JOHN Gray, Esa., Q.C.

James Barstow, Esa.
Lewin Taverner, Esa.

Middle Temple.

Gray’s Inn.

Wituam Wituiams, Esq. (Firm—Messrs. Currie &
Williams), Lincoln’s Inn Fields Incorporated
W.S. Cooxsoy, Esq. (Firm—Messrs. Cookson, Waine- | Law Society.
wright, & Co.), 6 New Square, Lincoln’s Inn
Secretary—-James Tuomas Hopwoop, Esa., 3 New Square,
Lincoln’s Inn.

ANNUAL REPORT FOR 1867.

Tae Counci. or Law Rerortine submit the following Report to the
Subscribers to ‘ The Law Reports,” and to the Legal Profession. The
Report for 1866 was published on the 17th of June, 1867, and the
present Report has been delayed in consequence of the examination of
HISTORY OF “THE LAW REPORTS.” 305

the accounts by the auditors appointed by the Editors and Reporters
pursuant to the Bar Scheme, and other unavoidable circumstances.

FINANCIAL POSITION.

An account of the receipts and expenditure for the years 1866 and
1867 is appended to this report.

Recerpts.—The receipts for prepaid subscriptions in 1866 amounted
to £20,334 18s.; in 1867 to £21,860 16s. 4d. The average of the two
years was £21,097 17s, 2d. During these two years the further sum
of £503 16s. 7d. was received for interest on temporary investments ;
these investments consisted of cash to the credit of the Council at the
Union Bank, which was placed on deposit at the current rates of in-
terest. Credit is also taken for the sum of £1255 5s. ld; this is the
amount of the net balances up to the 31st of December, 1867, then due
from the agents of Messrs. Clowes in India, the Colonies, and America,
and most of which are accounted for by Messrs. Clowes as since
received. The total amount thus realised during the years 1866 and
1867 was £43,954 16s. The sums received for prepaid subscriptions
during the current year up to the 30th of June, 1868, amount to
£21,102 6s., and this sum will be increased by the amount which will
be due from the agents of Messrs. Clowes in India, the Colonies, and
America at the end of the year, and also by such further sums as may
be received for prepaid subscriptions up to the 31st of October next
(the prepaid subscriptions for 1869 will commence on the Ist of
November). Thus the receipts for prepaid subscriptions during the
present year, up to the 30th of June, 1868, exceed those for the entire
year, 1866, and also the average of the two entire years—1866 and
1867. Upon the average of the three years the actual receipts from
prepaid subscriptions have exceeded £21,000 per annum. This sum is
exclusive of moneys received and receivable through Messrs. Clowes’
agents in India, the Colonies, and America. ‘The Council at the com-
mencement of their proceedings based their engagements upon the
result of a three years’ trial. The special guarantee of the first moiety
of the salaries of the Editors and Reporters in aid of the Subscription
List was for three years. This guarantee, which was suggested by the
Vice-Chairman, Mr. Daniel, out of abundant caution, has never been
called into operation, and is now at an end; the first moiety of the
salaries for this the third year having been provided for out of the
subscriptions for the year. The contract with Messrs. Clowes for
printing and distribution was also for three years certain and expires
this year. By one of the terms of it, they are entitled to the option
of continuing the contract for a further period of four years, the terms
to be reconsidered ; and they have already, by a letter dated the 17th
of July instant, applied under such option to continue the contract for
306 HISTORY OF «THE LAW REPORTS.”

that period, subject to any minor modifications the Council may see
fit to propose. This application, to which the Council have acceded,
shews the confidence entertained by Messrs. Clowes in the future of
“The Law Reports.” The three years’ experience which the Council
have now had of the income which “The Law Reports” has yielded,
seems to them to justify the conclusion that these Reports, if properly
conducted, will yield a permanent income of at least £21,000 per
annum; and that such income will probably increase, if the principle
of the Bar Scheme be adhered to, and independent professional control
be maintained as the mainspring of management. Although the
Council regard the continuance of the large professional support they
have hitherto received as evidence that ‘“ The Law Reports,” as
hitherto published, are on the whole satisfactory, they are by no
means insensible to the fact that they are still capable of improve-
ment; and profiting by the three years of experience, the Council
will direct close attention to the future efficiency of the Reports,
without, as they hope, in any way diminishing the responsibility of
the Editors and Reporters, or unduly trenching upon their proper
functions.

ExpenDITuRE.—The accounts shew the expenditure for the two
yeais 1866, 1867, under the three heads of Management, Printers’ charges,
and Salaries.

Management—The charges under this head date from the Ist of
February, 1865, when the Council first came into existence by the
appointment, in pursuance of the Bar Scheme, of members by Lincoln’s
Inn, the Inner Temple, the Middle Temple, and the Incorporated Law
Society. These charges are exclusive of the salary of the Secretary,
which is included in the item for salaries.

Printers’ Charges.— These charges consist of the accounts of Messrs.
Clowes for printing, publishing, and distributing ‘‘The Reports,”
“Weekly Notes,” and “Statutes,” to prepaying subscribers. The
distribution involves free delivery within the limits of the Inland
and Ocean British postage. For delivery beyond those limits, a sum
for extra postage is charged to subscribers by Messrs. Clowes. The
Council employ an independent printer as auditor to examine Messrs.
Clowes’ accounts, and see that the details are correct and the charges
in conformity with their contract; these accounts are made out and
audited quarterly, and when audited, are paid. The accounts have
been made out, audited, and paid up to the 30th of June last, and
Messrs. Clowes have about £600 in hand towards the expenses of the
current quarter. The printing charges for 1867 exceeded those of
1866 by the sum of £344 7s. 11d.; this excers was owing chiefly to
the increased size of the volume of Statutes for 1867. Upon the two
quarters of the present year, ending the 30th of June, a saving of
about £1000 has been effected, and a saving cf about equal amount is
HISTORY OF «THE LAW REPORTS.” 307

expected to be made in the two next quarters; making an expected
saving upon the printer’s charges for 1868, of about £2000.
Salaries.--The Council, in accordance with the Bar Scheme, guarantee
the Editors and Reporters one moiety of their maximum salaries.
This moiety is the first charge upon the subscriptions received in each
year. Hitherto, including the present year, the Council have pro-
vided for this uharge by investing and retaining a sufficient sum to
meet it. Although guaranteeing only one moiety, the Council always
have been and still are very desirous that the maximum salaries
should be paid ; but the second moiety is payable out of the sub-
scriptions only, and not until after the costs of management and
printers’ charges have been paid. During the first year, Messrs. Clowes
consented to the maximum salaries being paid in full, without insist-
ing upon their priority as respected the second moiety. The amount
of subscriptions received, together with the stock in hand, reckoned
at subscription prices, are more than sufficient for that purpose. The
salaries thus paid in 1866, amounted to £11,667 10s. This payment,
added to the printers’ charges, exceeded the amount received for sub-
scriptions by the sum of £5002 17s. 1d., but was less than that amount
added to the subscription price of the stock in hand by upwards of £1000.
The prepaid subscriptions for 1866 (£20,344 18s.), were more than
sufficient to pay the guaranteed salaries (£5833 15s.), the printers’
charges (£13,670 5s. 1d.), and the cost of management (£254 14s. 3d.),
(together £19,758 14s. 4d.), by the sum of £576 3s. 8d. In the year
1867, the Editors and Reporters received their guaranteed moiety, and
and one-fourth part of the second moiety; that is, five-eighths of the
maximum salary. The sums thus paid for salaries in 1867 amounted
to £7417 10s., and this sum, added to the printers’ charges for 1867,
(£14,014 18s.), and the cost of management (£254 14s. 3d.) (together
£21,686 17s. 3d.), was less than the amount received for prepaid
subscriptions in 1867 by the sum of £173 19s. 1d. These figures
demonstrate that in each of the years 1866 and 1867 the amount
actually received for the prepaid subscriptions has been more than
sufficient to pay the guaranteed salaries, the cost of management, and
the whole of the printers’ charges. These are the only charges which
it is the interest of the subscribers to know and be assured the
Council have funds to meet. All beyond, up to the payment of the
maximum salaries in full, is a mere question of prospective advantage
to the Editors and Reporters—an advantage which the Council although
not in any way bound, are nndoubtedly anxious to obtain for them.
The Editors and Reporters have, in accordance with the provisions
of the Bar Scheme, appointed two of their own body to investigate the
accounts of the Council. This investigation has but recently been
concluded. The accounts have been ascertained to be correct; and
the auditors have made certain suggestions, having fur their object
308 HISTORY OF “THE LAW REPORTS.”

the diminution of future expense, and the increase of future subscrip-
tions. From the explanations already given it will be seen that the
present excess of payments to the Editors and Reporters is not a
balance of liabilities over receipts, but is due to the liberality of
Messrs. Clowes in waiving the priority to which they were entitled.
The surplus stock now in hand, estimated at half the subscription price,
is, however, more than sufficient by £996 14s. 11d. to meet this excess.
The surplus stock is gradually being subscribed for at the full sub-
scription price, and, though the process may be slow, the result is
reasonably certain ; but whether the excess be ever made good or not,
or whether the surplus stock be ever subscribed for or not, neither the
future operations of the Council, nor the future prospects of the Law
Reports, or of the subscribers in respect of them, can be prejudiced.
The subscriptions during the past three years have been more than
sufficient to answer all those requirements which are essential to the
supply of the Reports to the subscribers; namely, payment of the
guaranteed salaries, the costs of management, and the charges for
printing and distribution ; and the Council rely with confidence wpon
the subscriptions for future years being in like manner sufficient for
the same requirements.

It would be contrary to experience if the fact were otherwise. The
Council make no bad debts; they have no interest on capital to pro-
vide for; they have no rent or taxes to pay for houses, or chambers,
or offices; they are not burdened with salaries, or commission, or
expenses of travelling agents; they have no proprietors’ profits to
secure. The sum applicable to the second moiety of the maximum
salaries represents the surplus of the gross receipts after payment of
those charges which make up the necessary cost of production. The
Council are satisfied with the present position and financial prospects
of the undertaking.

CHANGES IN THE COUNCIL.

Sir G. M. Giffard, upon receiving his appointment as Vice-Chancellor
in March last, sent in his resignation. The vacancy has been filled
up by the appointment by the Inner Temple of Mr. Henry Warwick
Cole, Q.C., who has taken his seat. The vacancies which have been
occasioned among the ex-officio members of the Council by the elevation
to the Bench of Sir C. J. Selwyn and Sir Robert Phillimore, have been
supplied by the accession of the present Solicitor-General, Sir W. B.
Brett, and the Queen’s Advocate, Sir Travers Twiss.

THE STATUTES AND DIGEST.

The publication of the Statutes was no part of the Bar Scheme, nor
of the original object of the Council, but was adopted at the request of
HISTORY OF “THE LAW REPORTS.” 309

subscribers. This publication has been attended with an expense
which is considered by many subscribers to be greater than the
advantages secured by it. From a return laid before Parliament on
the 15th of May last, it appears that, in consequence of a suggestion
made by Sir J. G. Shaw Lefevre to Mr. Secretary Hardy, the question
of separating the public local Acts from the public laws of the whole
country is likely to be taken into consideration by the Home Secretary.
The Council therefore think it desirable to keep open the question
whether some alteration should not be made next year with reference
to the Statutes. The Council have been for some time very anxious
that subscribers from the commencement should be supplied gratis
with a Digest of the Cases reported, and some progress has been made
towards the preparation of such a Digest; but the question of expense
could not be overlooked. There seems ground for hoping that a
Digest of the Cases for the three previous years may be delivered
with the January, or, at latest, the February part for 1869; and the
Council will direct their attention to this object, in the hope of being
able to accomplish it.

AMERICAN AND COLONIAL SUBSCRIPTIONS.

The Council have ascertained that a large demand exists in America
for “ The Law Reports,” but that the full advantages of this demand
cannot be secured so long as British copyright is not protected in
America by a convention between the two countries. The Equity
and Common Law Series of the Law Reports continue to be reprinted
at Philadelphia in parts, as imported from this country ; the English
edition will be continued to be supplied to the public libraries
throughout the States, and leading members of the American Bar,
under arrangements made by Messrs. Clowes, with the sanction of the
Council. ‘The Council also feel themselves justified in looking forward
to considerably increased subscriptions in India and the Colonies,
especially Australia,

In conclusion, the Council desire to congratulate their professional
brethren in Ireland upon the success which has attended the establish-
ment in that country of the Irish Law Reports, and to notice the
advantages which, by adopting the principle of the English Bar
Scheme, have been secured to all parties in Ireland by the fusion of
existing interests and the extinguishment of unnecessary rivalry—a
result which has been accomplished without sacrificing any of the real
benefits of independent reporting.

By Order,
(Signed) Rounve.t Pacer,
Chairman.
Bencuers’ Reapinc Room, Lrncoun’s Ixy,
July 30th, 1868.
HISTORY OF “THE LAW REPORTS.”

310

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HISTORY OF “« THE LAW REPORTS.” 311

It should be here stated that prior to the incorporation of the
Council in August, 1870, the Inns of Court and the Incorporated
Law Society, in consequence of a suggestion made by Sir Roundell
Palmer, consented to forego the repayment of the sums severally
advanced by them, and to treat them as advances made in further-
ance of a public object, and therefore as gifts—-thus enabling the
Council of Law Reporting to transfer their assets to the Incor-
porated Council free from any liability in the shape of debt for
moneys advanced.

My duties as County Court Judge being (as I considered)
paramount to any duty I owed to the Council as Vice-Chairman,
I was not able to attend the meetings until the 15th of April, 1869.
I then took the chair as Vice-Chairman (Sir Roundell Palmer not
being present). One of the subjects for consideration was the pre-
paration of the Annual Report for 1868. And, instead of being
requested, as Vice-Chairman, to prepare the Report, as I had
hitherto done, it was resolved that the preparation of the Report
be referred to the Committee of Supervision, who undertook to do
so, and thereby I was kindly relieved of the labour. Ata meeting
of the Council, held on the 1st of May, 1869, the Annual Report
for 1868, as prepared by the Committee of Supervision, was pre-
sented, Sir Roundell Palmer was in the chair, but I was absent.
The Report having been considered and some amendments made,
it was resolved that the following Report prepared by the Com-
mittee of Supervision and amended at this meeting be adopted,
and that the same be printed and circulated among the Profession,
and the following is a copy :—

COUNCIL OF LAW REPORTING.

Members of the Council.

Chairman—Sir Rounvett Parmer, Kwr., M.P., Q.C.
Vice-Chairman—W. T. S. Dantez, Esq., Q.C.

Zyx-OMicio Members.

Tur ATTORNEY-GENERAL, Sin R. P. Cotiier, Knr., M.P.
Tur Soticiror-GeneraL, Sir J. D. CoLeriper, Kyr., M.P.
Tue QueEN’s ADVOCATE-GENERAL, Sin Travers Twiss, Kyr.
312 HISTORY OF “THE LAW REPORTS.”

lectey PHAembers.

Mr. Serseant O’Brien

Mr. SERJEANT PULLING

Sir RounpeLt Patmer, Kyt., M.P., Q.C.
~W.T.S. Dantst, Eso., Q.C.

Wiuam Forsyru, Esq., Q.C.

H. Warwick Coxz, Esq., Q.C.

T. W. Greene, Esg., Q.C.

JouN Gray, Esq., Q.C.

J. A. Russexx, Esq., Q.C.
James Barstow, Esq.

Serjeants’ Inn.

Lincoln’s Tun.

| Inner pemprs:
\ Middle Temple.

Wituiam Witiams, Esq. (Firm—Messrs. Currie &
Williams), Lincoln’s Inn Fields. Incorporated
W.S. Cooxson, Esq. (Firm—Cookson, Wainewright & | Law Society.
Co.), 6 New Square, Lincoln’s Inn.

Secretary—J ames Toomas Horwoop, Esq., 3 New Square,
Lincoln’s Inn.

ANNUAL REPORT FOR 1868.

In pursuance of the Bar Scheme the Council submit to the Profession
a Report of the working of the system of Reporting under their
control during the past year, together with a financial statement. It
will be seen by the latter that the receipts for subscriptions during
the year 1868 amounted to the sum of £22,067 10s.6d. The receipts
during the year 1867 were £21,860 16s. 4d., thus shewing an increase
in 1868 over 1867 of £206 14s. 2d. In reference to the expenditure,
the Council are glad to observe that some economical arrangements
lately made have already proved beneficial; thus, the cost of the
printing and delivery of the “The Law Reports” has been less by
£1087 3s. 6d. in 1868 than it was in the year 1867, and the debit
cash balance has been reduced from £3324 10s. 7d. to £292 8s. 2d.
The Council, with a view to economy, have also directed certain
changes to be made, which came into operation in the early part of
this year, and a considerable saving of expenditure will, it is hoped,
be thereby effected without impairing the efficiency of “The Law
Reports,”

The yearly income, as stated in the former Report, is more than
sufficient to answer all necessary requirements, including the pay-
ment in 1868 of £5546 5s. to the staff of Editors and Reporters, and,
although the surplus reccipts have not been sufficient to pay them
HISTORY OF «THE LAW REPORTS.” 313

the maximum salaries it is hoped that the time is not far distant
when the state of the subscriptions will enable the Council to do so;
but it rests mainly with the Profession by increased subscriptions to
enable the Council to accomplish this object.

The accounts for the year 1868 have been duly audited by auditors
appointed by the Editors and Reporters.

Two separate Digests of the Equity and Common Law cases included
in “The Law Reports” from the time of their commencement were
in a forward state of preparation in the early part of this year, when
the Council came to the determination that there should be one Digest
only, which should embrace all the cases. This consolidation of the
two Digests into one has unavoidably caused a delay in the publica-
tion, which the Council regret; but the Digest will be delivered to
the Subscribers for 1869 as soon as practicable.

The Council offer their thanks to the Lord Chancellor and the Law
Lords, to the Members of the Judicial Committee of the Privy Council,
and to Her Majesty’s Judges at Law and in Equity for the assistance
they have kindly afforded to the Editors and Reporters by giving
them access to their written judgments and in revising the proof
sheets.

They also express their thanks to the Bar and Solicitors for the
facilities given by them to the Reporting Staff in the discharge of
their duties by the loan of briefs and papers.

“The Law Reports” have now been in existence more than three
years, and experience has proved that the Bar Scheme has, upon the
whole, worked satisfactorily, although further improvements still
remain to be effected in Law Reporting which the Council desire to see
accomplished.

The Council observe with satisfaction the establishment of kindred
institutions in other countries founded upon the scheme of “ The Law
Reports,” and they regard the same as unequivocal manifestations of
the soundness of the principles on which that Scheme was founded,
namely, independent professional control and the exclusion of all pro-
prietary profit. The Legal Profession in Ireland was the first to follow
the example, and with signal success; more recently a similar system
has been established in Bengal, and it is now proposed to introduce
the same system into the United States, where, in the language of one
of its supporters, the expediency of applying the new system is of
even greater urgency than in this country.

Besides the changes which have taken place in the ew-officio
Members of the Council, the Hon. Mr. Justice Hayes has resigned
his seat in consequence of having been appointed one of Her Majesty’s
Judges, and the Council have with regret thereby lost a member
who has always shewn a very sincere and active interest in their
314 HISTORY OF “THE LAW REPORTS.”

proceedings. His place at the Council has been supplied by Mr.
Serjeant O’Brien.

Under the Bar Scheme it is provided that one of the Members of
the Council appointed by the Inns of Court and Incorporated Law
Society respectively, should retire at the end of every two years, but
that all members so retiring should be eligible for re-appointment.
The period contemplated by the Scheme having expired in the
month of February last, a communication was made to the different
legal societies calling attention to the matter, but the several
gentlemen who retired have all, with their consent, been re-appointed,
with the exception of Mr. Lewin Taverner, who having expressed a
wish to withdraw on the ground of ill-health, the Honourable Society
of Gray’s Inn has appointed Mr. J. A. Russell, Q.C., in his place.

By Order,
(Signed) Rounpe.u Pater,

Chairman.
Bencuers’ Reaprne Room,
April 30th, 1869.

My duties as County Court Judge having increased, and con-
tinuing rapidly to increase, especially after the Bankruptcy Act,
1869, had come into operation on the Ist of January, 1870, and
as my services in the Council of Law Reporting were no longer
required, I availed myself of an opportunity between the end of
my May Courts and the commencement of my June Courts, to
attend a meeting of the Council on the 2nd of June, 1870. I
presided at that meeting as Vice-Chairman until Sir Roundell
Palmer came, when I vacated, and he then took the chair, and I
tendered my resignation, which was accepted, and I thenceforth
ceased to take any part in the management of the affairs of the
Council, and I was well content to leave the future interests of
the Bar Scheme in the able and zealous hands of the other
Members of the Council, who, by the adoption of the Report for
1868, prepared by the Committee of Supervision, had recognised
and acknowledged the soundness of the principles and mode of
procedure advocated by me in my first letter to Sir Roundell
Palmer, and which, modified and improved, were embodied in
the Bar Scheme—the preparation of Reports under professional
control and the exclusion of all proprietary profits. Thenceforth
I could only watch the labours of the Council as shewn in their
Annual Reports and Financial Statements of Account ; and this I
HISTORY OF «THE LAW REPORTS.” 315

did with increasing pleasure, which culminated in the Report
and Financial Statement for 1883, which was sent to me, as the
others had been, officially as Judge of the County Court of
Bradford.

The following are copies of that account and statement :—

THE INCORPORATED COUNCIL OF LAW REPORTING
FOR ENGLAND AND WALES.

 

fHembers of the Council.

Chairman—JosErH Brown, Esq., Q.C.

Eyr-ONicio Members.

Tue ATTORNEY-GENERAL, Sir Henry James, Kyv., M.P.
Tue Soticitor-GENERAL, Sir Farrer Herscueii, Kyt., M.P.

lected PAembers.

Mr. SerseEAnT Simon, M.P.
Mr. SersEanT PULLING

W. B. Guasse, Esq., Q.C. |

Serjeants’ Inn.

Horace Davey, Esq., Q.C., M.P. Lincoln’s Inn.

Sir J. B. Maute, Kyr., Q.C.

Arruur Cuar.es, Esa., Q.C. Inner Temple.

JosrrH Brown, Esq., Q.C.

ALFRED WILLS, Esq., Q.C. Middle Temple.

J. A. Russet, Esq., Q.C. det

W. C. Fooxs, Ese., Q.C. rays inn.
Wits Wiuiams, Esq. (Firm—Messrs. Currie,

Williams, & Williams), Lincoln’s Inn Fields. Incorporated
Joun Hottams, Esq. (Firm—Messrs. Hollams, Son, Law Society.

& Coward), Mincing Lane, E.C.

Secretary—J AMES THOMAS Hopwoop, Esq., 10 Old Square,
Lincoln’s Inn.
316 HISTORY OF “THE LAW REPORTS.”

ANNUAL REPORT FOR 1883.

The following Report and financial statement are submitted by the
Council to their Subscribers and to the Profession with much satis-
faction, as they will be found to shew a more prosperous state of “* The
Law Reports ” than has ever before existed, aud a brighter prospect of
success in the future. The Council feel much gratified with this result
of their labours on behalf of the Profession to which they belong.

The subscriptions for the year 1883 amounted to the sum of
£25,752 16s. 2d., being an increase upon the preceding year of
£428 12s. 5d., and the sum of £2320 2s. was also received for Law
Reports, Consolidated Digest, and other publications published
prior to the year 1883. The advertisements produced £41 15s. 2d.,
and the interest from money on deposit and investments was
£1133 6s. 4d., making up the total receipts during the year to the
sum of £29,247 19s. 8d.

The cost of printing and delivery of the Law Reports and
Statutes amounted to the sum of £10,714 17s. 5d., and the office
expenses to £175 8s. 5d. The amount paid for salaries, including
a bonus to the several gentlemen engaged on the staff, was
£11,902 18s. 6d., making a total expenditure of £22,792 19s. 4d.
Thus the receipts of the year exceeded the expenditure by
£6455 Os. 4d.

As stated in the last Annual Report, the Council were of opinion
that it was advisable to increase the reserved fund to £20,000, and
accordingly the sum of £5000 has since been added to the sum of
£15,000, at which that fund formerly stood. The revenue balance
carried over from 1882 amounted to the sum of £9743 14s. 5d., and,
after making the addition of the sum of £5000 to the reserved fund, it
will be seen that the balance of revenue to the credit of the Council at
the close of the year amounted to the sum of £11,198 14s. 9d., without
including the sum of £4355 2s, 3d., the value of the stock of bouks at
cost price. This large balance has enabled the Council to provide the
following new books, which they expect will be found of great utility
to the Profession.

The Council, in pursuance of an arrangement with the Treasury,
have purchased of the Treasury a sufficient number of copies of the
Chronological Table and Index to the Statutes issued by the Govern-
ment during the current year, which is a great enlargement and im-
provement of the previous editions, and have distributed them gratis
amongst the Subscribers to the entire series of “ The Law Reports”
for 1884.

A Triennial Digest of “The Law Reports” extending over the
years 1881, 1882, and 1883, has been prepared for the Council by the
HISTORY OF “THE LAW REPORTS.” 317

same able Editors who compiled the Consolidated Digest published
by the Council in the year 1882, and to which it forms a supplement.
This is now in course of distribution, free of charge, amongst the
Subscribers to the entire series of “The Law Reports” for 1884, who
will then possess complete Digests of all the Reports issued by the
Council to the end of 1883.

The Council have now in preparation another work, referred to in
their last Report, viz., an Index to the London Gazettes of the last
fifty-four years, that is to say, to the matters of permanent and prac-
tical importance contained therein, embracing such subjects as Orders
in Council, Orders of the Local Government Board, and other Orders
having the force of Statutes, International Treaties, &c. The labour
that has been bestowed upon its preparation by Mr. Alex. Pulling,
the editor, has been immense, for the work has grown considerably
beyond the original idea, and will have much value not only as a
Digest, but also as an Index of the subject-matters. It has, of neces-
sity, occupied much time in preparation, and will take some further
time yet to secure a full and accurate examination, but the MS. will
shortly be in the hands of the printers, and it is hoped that the book
may be completed for distribution in October next. As this work
will not be required by all their Subscribers, the Council thought it
best to limit the distribution to those Subscribers who chose to pay
for it, but to fix the price at a sum very much below its actual cost,
and they have no hesitation in commending the work to their notice,
and in inviting those who have not already subscribed to lose no
time in becoming Subscribers, as the number of copies printed will be
limited.

The extraordinary expenses thus incurred in the present year for
the Index to the Statutes, the Trieunial Digest, and the Index to the
London Gazettes, besides a further outlay of £1100 for re-printing a
limited number of the Reports of the year 1876, the stock of which
is nearly exhausted, and besides a liberal bonus to the staff, will all
be more than covered by the large balance standing to the credit
of the Council at the close of the year 1883, without touching the
reserved fund.

As the Council are now in receipt of a large surplus revenue, and
do not anticipate any extra demand on their funds for three years to
come, they have given much consideration to the best mode of em-
ployinug a further portion of the surplus revenue for the benefit of
the Profession, and have come to the conclusiun that the one which
would be most generally appreciated and approved, would be to lower
the subscription at the end of the current year from £5 ds. to E+ ty.
The Council have satisfied themselves that may safely do this; for,
independently of the reserve fund of £20,000, it 1s aaah that,

¥
318 HISTORY OF “THE LAW REPORTS.”

assuming the Council retain their present number of Subscribers only,
without any addition thereto, the funds would still be sufficient to
pay the charges of the year, including a liberal bonus to the staff,
and leave a balance for contingencies. The Council have accordingly
given the necessary directions for the proposed reduction of the sub-
scriptions to “‘The Law Reports” for the ensuing year, 1885; and
they desire that Subscribers at home and abroad, in making their
remittances in November next, will notice the reduction in the
amount of the subscription. It is not proposed to lower the price
of the current year or the back years of “The Law Reports,” and
the Indian Appeals will also continue at the present rate of £1 Is.
per copy.

It is with great satisfaction that the Council regard the success of
“ The Law Reports” in the past, a success that has enabled them
from time to time not only to present their Subscribers with numerous
valuable publications, but also now to reduce the future subscriptions.

The accounts have been duly audited and approved.

The Council desire again to record their thanks to Her Majesty’s
Judges and to the Profession in its different branches, for the kind
assistance which they so readily afford to the gentlemen engaged in
the work of reporting.

In conclusion, the Council desire to acknowledge the support
hitherto received from the Subscribers to “The Law Reports,” and
venture to ask not only for a continuance of that support, but their
assistance in obtaining the co-operation of other members of the Pro-
fession, in order to increase the subscription lst, and thereby meet
any diminution of income which will arise by the proposed reduction
of the subscriptions in the ensuing year.

By Order,
(Signed) JosEPH Brown,
Chairman.

Councit Room, Liycouy’s Inn Hatt,
May 27th, 1884,
319

HISTORY OF «THE LAW REPORTS.”

 

 

 

 

 

 

 

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HISTORY OF “THE LAW REPORTS.” 321

I had the satisfaction of knowing that the vacancy on the
Council occasioned by my resignation in June, 1870, was forth-
with filled up by the appointment of Mr. Amphlett, as the repre-
sentative of Lincoln’s Inn, in my place. And also that the
arrangement for a charter of incorporation, as also suggested in
my letter to Sir Roundell Palmer, was agreed to and afterwards
carried into complete effect.

Of course I have no knowledge of the details of the manage-
ment by the Council after I had resigned, and it may be thought
presumptuous in me to single out any one of the members
as labouring more earnestly than others; but looking at the
Report for 1883, I think the Profession must acknowledge how
much of the present satisfactory condition of “The Law Reports ”’
and their financial prosperity is owing to the energy and zeal of
the Chairman, Joseph Brown, Esq., Q.C., who has for several
years last past devoted himself to the management of the affairs
of the Council; and it is to me very pleasing to observe that
Mr. Serjeant Pulling has from his appointment in May, 1866,
continued one of the Representative Members of Serjeants’ Inn
on the Council, and, as shewn by the Report of 1883, a very
active and useful member. I am glad also to see that the
valuable services of Mr. Alfred Wills, not only as a hard-working
member of the Bar Committee, but for several years last past
as the Representative of the Middle Temple on the Council
jointly with his colleague, the Chairman, have not interfered
with his interests as leader of the North-Eastern Circuit, and
that his well-tried professional abilities have at length met their
reward by being recently raised to the Bench as a Judge of the
Queen’s Bench Division of the High Court of Justice.

And I must not omit to notice specially the services rendered
by Mr. William Williams; who having, when Vice-Chairman of
the Incorporated Law Society, been appointed one of the first
Representative Members of that body upon the Council of Law
Reporting, has been continued ever since, by repeated re-elections,
and still is one of the most active Members of the Council, and
the only remaining Member of the first Council appointed in
January and February, 1865.

And last, and by no means least, must a hearty recognition be
322 HISTORY OF “THE LAW REPORTS.”

made of the faithful, long-continued, and well-tried services of
the Secretary, James Thomas Hopwood, Esq. It will not be for-
gotten that he, with exemplary zeal and disinterested devotion,
rendered gratuitous services as one of the Honorary Secretaries
of the Bar Committee from the commencement and throughout
their six months’ labour. And as Secretary of the Council of
Law Reporting (to say nothing of his faithful stewardship of the
hundreds of thousands of pounds which have been received and
disbursed by him without error or omission) he has throughout
his long career of office discharged its varied and delicate, and
often difficult, duties, not only without giving offence, but to the
entire satisfaction of all who came within the wide range of his
influence. More might be said; but my personal thanks to
Mr. Hopwood have been already expressed.

The reduction of the subscription from £5 5s. to £4 4s., as
decided upon by the Report of 1883, is undoubtedly a step in
the right direction ; whether it might not have been taken earlier,
to wit, as soon as it had been proved that the subscriptions were
more than sufficient to meet all the requirements of the Council,
may be the opinion of some who might not desire their subscrip-
tions to be applied to the formation of a large reserve fund from
which they might never profit. But whether there be room for two
opinions upon this subject or not, the realisation of £20,000 now
existing as a reserve fund, is a striking proof of the soundness of
the principles upon which the Bar Scheme was founded, and affords
an irrefutable answer to all those objectors who in the early
stages of the promotion of the Scheme were ready to heap coals of
fire upon the heads of those who, firm in the faith of ultimate
success, resolutely withstood all opposition and turned a deaf ear
to interested clamour, and refused to believe in prophecies of
failure.

Before closing this record of pleasing memories, I wish to make
plain the reason, as it appears to me, of the success which has
attended the labours of the Council. It will be found, I believe,
in the principle upon which the members are selected. They are
selected by the operation of a self-acting procedure which secures
the appointment of members in every instance well fitted to take
part in the work of the Council. Thus the ex-officio members,
HISTORY OF “THE LAW REPORTS.” 323

the Attorney-General, the Solicitor-General, and the Queen’s Ad-
vocate (as long as that officer existed), represented the heads of
the Profession for the time being—and the individual members
were liable to change whenever either was raised to the Bench, or
resignation resulted from a change of Government. During the
nineteen years the Council has been in existence there have been
several changes of Government; but in every instance of change
the new officers have willingly accepted the appointment and
rendered useful service as e#-officio members. Party politics
have not in a single instance been visible either in the composi-
tion of the Council or the management of its affairs during the
whole course of its existence. As regards the elected members,
the bodies who elect are absolutely independent of each other.
The Incorporated Law Society would not tolerate interference by
any Inn of Court, nor would any one of the four Inns of Court
tolerate interference by either of the other three, or by the Incor-
porated Law Society. If occasion should arise, there would pro-
bably be mutual conference, but no such occasion has yet arisen.
The elected members, like the ew-officio members, are liable to
change, either by resignation or, in the case of members of the
Inns of Court, by being raised to the Bench, as has frequently
happened. And all elected members are elected for two years
only, but allare re-eligible ; and in every instance (except in the
case of Mr. Taverner, who retired from ill health), all have been
from time to time re-elected. Thus the practical result of the
procedure has been to secure continuity in the Council with a
sufficient amount of change to prevent sectional predominance.
And as to the character of the individuals selected, the Profession
has seen that, without an exception, they have been not only
worthy representatives of the bodies electing them but worthy
representatives of the interests of the Legal Profession in the
objects of the Council.

The Council, thus constituted, has been able from the first
and throughout, to deal with that most difficult matter, the exer-
cise of patronage, not only without complaint on the ground of
favouritism, but with the conviction throughout the Profession
that, bearing in mind the provisions of the Bar Scheme, considera-
tions of merit have been made the sole ground of appointment,
324 HISTORY OF “THE LAW REPORTS.”

and the most satisfactory proof of the soundness of the judgment
exercised in these appointments is to be found in the subsequent
professional careers of the individuals appointed. These facts are
patent to the Profession, and more need not be said.

The Council is also by its constitution admirably qualified to
judge and, when necessary, exercise control over the Editors and
Reporters. For the Council consists for the most part of leaders
in actual practice who require the Reports for daily use—none
could be found better able to point out defects and provide for
their removal, to say nothing of the readiness with which they
would hear and attend to any reasonable complaint by their pro-
fessional brethren, or from solicitors, as clients. And being
leaders of the Profession the Judges would be ready to point out
any defects or errors that might come under their observation.
As for the competency of the Council to deal with Finance, not a
word need be said. Look at the Reserve Fund of £20,000—Res
ipsa loquitur !

It may be matter of regret with many that the successful estab-
lishment of “ The Law Reports” has not had the effect of reliev-
ing the Profession from what is thought to be the incubus of so
many contemporaneous Reports. But if the existence of so many
Reports be an evil (which some doubt), the Profession have
the remedy in their own hands, and therefore have no right to
complain. There can be no doubt that as the Council set the
example of publishing “ Weekly Notes,” the public have so far
benefited by competition ; that example has been followed by
“The Law Journal,” and not only followed, but improved upon,
by “The Law Times” and “The Solicitors’ Journal,” and, as I
know from experience, the fuller weekly notes of cases in those
publications have been of great use in County Courts. Whether
“The Weekly Notes ” published by the Council could be made
more useful for their country subscribers isa matter which may be
worth consideration (1).

As to the future of “ The Law Reports,” prophecy would be
useless, this only need be said, the condition of their existence is
that they meet the wants of those who require them. And if

(1) Since the above has been in type another competitor has appeared, “The
Times Law Reports,” published weekly.
HISTORY OF “ THE LAW REPORTS.” 325

this condition be complied with in the future as fully as it has
been in the past, there need be no apprehension of an insufti-
cient subscription at the reduced sum; because, bearing in mind
the fact ascertained by me at the outset, that in 1830 there were
5648 copies of the 10th vol. of Barnewall and Cresswell actually
sold, the demand for sucha set of standard Reports as “ The Law
Reports,” has proved itself to be has not yet been reached. I
hope, therefore, that “ The Law Reports,” adhering to the prin-
ciples on which they were established, will go on and prove a
reliable repertory of those decisions, and those decisions only,
which come within one or other of the four classes enumerated in
Lord Justice Lindley’s valuable paper, appended to my first
letter to Sir Roundell Palmer. If upon any occasion any Court
or any Judge requires a report of a case which does not come
within that classification, let such a report be found elsewhere
than in “ The Law Reports.”

Although infirm health and the physical weaknesses of age
have compelled me to retire from active service in the Profession,
I feel an abiding interest in a Scheme with which I have been asso-
ciated with my professional brethren for so many years; and if I
have contributed anything towards the maturing of that Scheme
which is considered worthy of remembrance, I hope I may be
allowed to offer it as the only instalment I can now offer of that
debt which Lord Bacon has said, “ Every lawyer owes to his
profession.”

I have had the ambition to hope that by example, fortified by
experience, I might have been able to pay that debt, if not in
full at least to a larger extent—by securing for the public the
advantages of a well-considered scheme for the Local Administra-
tion of Justice in Courts having jurisdiction in all civil matters
co-extensive with the High Court—but I have been disappointed,
though not cast down, as I feel encouraged by the promise that
“Bread cast upon the waters shall be found after many days ”—

“ Liberavi animam meam !”

FINIS.
HISTORY OF “THE LAW REPORTS.” 327

APPENDIX I.

ss

The names of the twenty-two members who formed the ComMITTEE
appointed by the Meeting or THe Bar held in Lincoln’s Inn Hall
on the 2nd of December, 1863, under the presidency of Sir
RounvELL Patuer, Attorney-General,

and
Their subsequent Professional Career.

Sir Rozert P. Coturer, Knt., M.P., Attorney-General; Judge of the
Solicitor-General. Common Pleas, and Salaried
Member of the Judicial Com-

mittee of the Privy Council.

(Living.)
Sir Roserr Purtyimorz, Queen’s Judge of the Court of Admiralty,
Advocate. and Dean of the Arches Court.

(Retired—living.)
Sir FirzRoy Keiry, Knt., M.P., Lord Chief Baron of the Court of
Q.C. Exchequer. The last of his
order. (Dead.)

Montacue E. Suit, Esq., M.P., Q.C. Judge of the Common Pleas, at
Westminster ; Salaried Mem-
ber of the Judicial Committee
of the Privy Council. (Retired
—living.)

C. J. Setwyn, Esq., M.P., Q.C. Solicitor-General ; Lord Justice
of Appeal inChancery. (Dead.)

Sir Hucu M. Carrns, Knt., M.P. Attorney-General; Lord Justice

Q.C., of the Court of Chancery ;
Lord Chancellor, Earl Cairns.
(Living.)

Ricuarp Paut Ampatett, Q.C.,M.P. Baron of the Exchequer; Lord
Justice of Appeal. (Dead.)

The Hon. Geo. Deyuan, ().C.,M.P. Judge of Common Pleas at
Westminster, now Judge of
the Queen’s Bench Division of
the High Court of Justice.
(Living. )

Lord Justico of the High Court

. Gro, Meuuisu, Esq., Q.C.
of Chancery. (Dead.)
328 HISTORY OF “THE LAW REPORTS.”

NarwanieL Linpiezy, Esq., Q.C.

J. BR. Quaty, Esq., Q.C.
ALFRED WILLS, Esq., Q.C.
W. T. S. Danze, Esq., Q.C.
ALEXANDER PuL.ine, Hsq.
James Dickinson, Esq., Q.C.

Josoua WiLuiams, Esq., Q.C.

Geo. Swzer, Esq.

Geo. Druce, Esq., Q.C.

Henry Matruews, Esq., Q.C.

G. W. Hastines, Esq., M.P.

Joun WESTLAKE, Esq., Q.C.

F. Vaveuan Hawnins, Esq.

Judge of the Common Pleas ;
Lord Justice of Appeal.
(Living.)

Judge of the Queen’s Bench.
(Dead.)

Judge of the Queen’s Bench
Division of the High Court of
Justice. (Living.)

Judge of County Courts. (Re-
tired—living.)

Serjeant -at-Law.

Became Leader of his Court, and
retired from practice. (Living.)

Conveyancer, and the well known
Author of several Standard
Legal Works. (Dead.)

Conveyancer, well known as
Editor of “ Jarman and Bythe-
wood’s Precedents,” with
Notes. (Dead.)

Died suddenly when rising into
well-merited distinction as a
Leader of the Equity Bar.
(Dead.)

Leader of the Oxford Circuit.
(Living.)

Long connected with, and now
President of, the Council of
the Social Science Association ;
connected with the Law
Amendment Society, and now
Chairman of the Worcester-
shire Quarter
(Living.)

Of world-wide reputation as a
writer on International Law.
(Living.)

Author of legal works of recog-
nised value, and of established
reputation as a Member of the
Equity Bar. (Living.)

Sessions.
HISTORY OF «THE LAW REPORTS.” 329

APPENDIX II.

 

The following Tabular Statement shews the AcruaL ATTENDANCES of
the several Mempers or THE CommiTTEE. In some cases the proceed-
ings were communicated to members not present, and being approved
their attendance became unnecessary.

There were twenty-four meetings.

Names. Attendances. Names, Attendances.
Amphlett ‘ ; . 24 Matthews 8
Lindley é : . 24 Quain 6
Daniel . : ‘4 . 23 Denman 6
Druce . s ‘ . 23 Montague Smith 4
Dickinson. ‘ . 23 Selwyn 4
Pulling . ‘ ‘ ee Hastings 4
Westlake F 4 1 Cairns 2
Sweet . é . a AY Mellish . 9
Hawkins % ‘i . 214 Kelly 1
Williams : ‘ x Je Collier . 0

Wills. ‘ j . di
330

HISTORY OF “THE LAW REPORTS.”

APPENDIX III.

—

The following Statement contain the names of the several ex-officio
Members of the Incorporated Council of Law Reporting who

attained JupicraL Dienity :—

The Right Hon. the Haru or SEL-
BORNE

The Right Hon. the Eart Cairns

Sir Joun Duss CoLeripce

Sir Rosert Porretr CoLiier

Sir Witui1am Bovi.i

Sir Joun Ror

Sir CHAaRLes JASPER SELWYN

Sir Ropert PHILLIMORE

Sir Joun Burcess KarsLaket

Sir Ricwarp BageaLLay

Sir GEORGE JESSEL

Sir Wituiam B. Brett

Sir Jonn HoLker

Sir Wituiam V. Harcourt

Lord Chancellor.

Lord Chancellor.

Now Lord Coleridge and Lord
Chief Justice of England.

Judicial Committee of the Privy
Council.

Lord Chief Justice of the Common
Pleas.

Lord Justice of the Court of
Chancery.

Lord Justice of the Court of
Chancery.

Judge of the Court of Admiralty
and Privy Councillor.

Privy Councillor.

Lord Justice of Appeal.

Lord Justice and Master of the
Rolls.

Lord Justice and Master of the
Rolls.

Solicitor-General and Lord Jus-
tice of Appeal.
Privy Councillor

Secretary.

and Home
HISTORY OF “THE LAW REPORTS.” 331

APPENDIX IV.

—_——

The following Statement contains the names of those Members of the
Council of Law Reporting, other than ex-officio members, who
attained JupiclaL Dieniry :—

The Right Hon. the Haru or SELBORNE.

The Right Hon. Sir FirzRoy Ketty. Lord Chief Baron.

The Right Hon. Sir Ricnarp Paut AMPHLETT.

The Right Hon. Sir J. B. Karsiake.

The Hon. Sir Grorcr Marxuam Guirrarp (afterwards the Right Hon.
Grorce Marxuam Girrarp, Lord Justice of Appeal).

The Hon. Sir Grorcr Hayes.

The Hon. Sir James FirzJ ames STEPHEN.

The Hon. Sir Epwarp E. Kay.

The Hon. Sir Jonn Pearson.

The Hon. Sir ALFRED WILLS.

His Honour J. A. Russet, Esq., Q.C., County Court Judge.

W. T.S. Daniet, Esa., Q.C.

County Court Judges without status.
H. Warwick Cots, Esq., at a
332 HISTORY OF “THE LAW REPORTS.”

APPENDIX V.

 

The following Statement contains the names of Barristers who have
accepted Appointments from the Council of Law Reporting,
and have since acquired JupictaL Dienity or Prorgssionau Dis-

TINCTION :—

Sir Lewis Witiiam Cave, Knut. Now Judge of the Queen’s Bench
Division of the High Court,
and having the special jurisdic-
tion of the London Court of.

Bankruptcy.

Artuur WILson, Esq. Now a Judge in India.

The Hon. Caanpos LricH Q.C., Counsel to the Speaker of
the House of Commons.

Cuares CLark, Esq. Q.C. (Dead.)

J. F. Macquezn, Esq. Q.C. (Dead.)

E. F. Moorz, Esq. Q.C. (Dead.)

ARTHUR CHARLES, Esq. ; Q.C., and now a member of the.
Council of Law Reporting.

G. W. Hemutine, Esq. Q.C.

James ANSTIE, Esq. Q.C.

Garnsrorp Bruce, Esq. Q.C.

Henry M. Bompas, Esq. Q.C.

Epwarp WINGFIELD, Esq. Under Secretary of State for the
Colonies.

JAMES STIRLING, Esq. Counsel to the Treasury.

E. A. C. Scratcn, Esq. Attorney-General for Jamaica.
(Dead).

Wiit1am Macruerson, Esq. Legal Adviser to the Secretary of

State for India.

J. W. Dre LoncuEvILLe GIFFARD, County Court Judges. (Now

ees Yeine,)
Henry Hotroyvp, Esq.
R. Horton Suir, Esq. Q.C.
W. D. Gririty, Esq. Attorney-General at the Cape;

County Court Judge. (Living.)

These appointments furnish evidence of the soundness of the judg-
ment exercised by the Council in the selection of candidates for
Reporterships, and I have ventured to prepare the statement with
that view, and that only.
INDEX.

ALEXANDRA, THE, case of, 87

AMPHLETT, R. P., ESQ., Q.C. (afterwards Baron of the Exchequer and Lord

Justice of Appeal),

appointed member of Bar Committee, 80

appointed chairman of Bar Committee, 147

speech at meeting of Bar on July 1, 1864..158-164

resolutions proposed by, on Bar Scheme, at meeting of Benchers in Lincoln’s
Inn, Jan. 11, 1864..244

appointed by Lincoln’s Inn member of Council of Law Reporting, 321

ANNUAL REPORTS OF COUNCIL OF LAW REPORTING,
1866 .. 297-302
1867 .. 304-309
1868 ..311-314
1883 .. 315-318

ANSTIE, JAS., ESQ. (now Q.C.), appointed Reporter in Court of Exchequer
by Council of Law Reporting (1865), 280

ANSTRUTHER’S REPORTS, commencement of, 268
ATHERTON, SIR WILLIAM, death of, 67, 227
ATTORNEY-GENERAL, THE: See Patmer, Sir Rounpett, Kyt., M.P., Q.C.

“ AUTHORIZED” REPORTS, THE,

cost of, 12-13, 51

suggestions for improvements in, by Law Amendment Society :
1848... 4-14
1853 ., 15-21

list of (1863), 35

evils and defects of, 36-37

investment, as an, 51,

competition, evil effects of, on, 52

Lindley, N., Esq. (now Mr. Justice Lindley), on defects of, 66

resolutions of Bar Meeting of 2nd December, 1863, for amendment of, 80

Pulling, Mr. Serjeant, on defects of, 86

Lord Westbury’s suggestions as to, 137

redundancy of, 181, 203

delays and irregularities in, 192-193

system on which conducted, 194

circulation of, prior to 1832.,199

Z2
334 INDEX.

“ AUTHORIZED ” REPORTS, THE—continued.
number of volumes per annum of (1864), 203
remuneration paid to Reporters, 268
exclusive citation of, 268

See also Law REporTING.

AYLMER’S FIELD, extract from, 183

BABBAGE, MR., 12
BACON, LORD, attempt to revive ancient office of Reporter, 184

BALANCE-SHEET OF INCORPORATED COUNCIL OF LAW REPORT-
ING for 1883 .,320
BAR,
requisition of, to Sir Roundell Palmer, Knt., Q.C., M.P., to call meeting
of, 68
method of obtaining signatures to, 69
presentation of, 69
reception of, 69
letter accompanying presentation of, 70
signatures to, 72-76
notice calling meeting of, 71
meeting of, on 2nd December, 1863.. 80
See also Ban Committee; Bar, Mertines oF; Bar ScHEME.

BAR COMMITTEE, THE,
appointment of, at meeting of Bar on 2nd of December, 1863, to prepare plan
for the amendment of present system of preparing, editing, and publishing
reports of judicial decisions, and to report thereon, 80
members of, 80-81, 98
first meeting of, 96
attendance at, 96
quorum of, 97
appointment of hon. sec. of, 97
appointment of chairman of, 97
circular to Judges and Profession announcing appointment and objects of, 98
distribution of, 99
appointment of sub-committee to inquire into practice of recording judicial
decisions in Foreign Countries, India, the Colonies and Scotland, 99
communications addressed to, in answer to circular, by
St. Leonards, Lord, 100-105
Hemming, G. W., Esq., 105-108
Kay, E. E., Esq., 108-111
Pearson, John, Esq., 111-113
Reilly, E. 8., Esq., Wolstenholme, E. P., Esq., Turner, R. 0., Esq.,
Roupell, C. M., Esq., and Bristowe, H. F., Esq., 113-117
Lushington, Vernon, Esq., and Lushington, Godfrey, Esq., 117-120
Jones, Daniel, Esy., 120-124
Williams, Joshua, Esq., 124-126
Giffard, J. W. De Longueville, Esq., 126-132
Harrison, W. H., Esq., Dean, R. Ryder, Esq., and Dickens, Wm. Park,
Esq., 182-135
letter from Hon. Sec. of Leeds Law Society to, 136
INDEX. 335

BAR COMMITTEE, THE—continued.
interview of chairman of, with Lord Westbury, 137
schemes submitted to, by members thereof, 188-139
official reporters, 139
exclusive citation, 139
that all judgments of Superior Courts be written, 139
resolutions finally carried by, 140-141
proposals as to appointment of Editors and Reporters, 139-140
draft scheme submitted to, by W. T. 8S. Daniel, Esq., Q.C., 142-146
report drawn up by, 146-156: See also Bar Scnemr.
steps taken by, from appointment to presentation of report, 146-151
circular issued by, to profession, 147
report of sub-committee of, on method of reporting judicial decisions in
foreign countries and United States, 148-149
expenses of, 172
Mr. Joshua Williams’ reasons for not signing report of, 172-174
composition of, 177
means taken by, to ascertain professional opinion, 178
vote of thanks to, 227
subsequent Professional career of members of, 327-328
attendance of members of, 329
See also Bar, MEETINGS oF; Bar ScHEME.

BAR, MEETING OF: see also Bar, MEETINGS OF.
proposal for, to consider system of Law Reporting, 58
letter to Sir Roundell Palmer, Knt., Q.C., on proposed, 67
letter from Sir Roundell Palmer, Knt., Q.C., M.P., on proposed, 68
requisition to Sir Roundell Palmer, Knt., Q.C., M.P., to call, 68
method of obtaining signatures to, 69
presentation of, 69
reception of, 69
letter by W. T. S. Daniel, Esq., accompanying requisition to call, 70
notice by Sir Roundell Palmer, Knt., Q.C., M.P., calling, 71
signatures to requisition to Sir Roundell Palmer, Knt., Q.C., M.P., calling,
72-16
names of leaders of Common Law Bar who signed requisition to Attorney-
General to call, 76

BAR, MEETINGS OF,
DeEcEmBER 2, 1863 .. 80
«Times, The,” articles on, 77, 90
preparation of resolutions to be proposed at, 79
report of proceedings at, 80
Juty 1, 1864, called to take into consideration scheme of Reporting
recommended by Committee appointed on Dec. 2, 1863. 157
Speeches at, of :—
Sir Roundell Palmer, Knt., Q.C., M.P. (Chairman) 157-158
Amphlett, R. P., Esq. (Chairman of Bar Committee), 158-164
James, E., Esq-, 164-165
Best, W. M., Esq., 165-167
Miller, A. E., Esy., 167-168
Wordsworth, — Esq., 168-169
336 INDEX.

BAR, MEETINGS OF—continued.
Juty 1, 1864—continued.
Speeches at, of—continued,
Malins, R., Esq., 169-171
Cairns, Sir Hugh, 171
Manisty, H., Esq., 171
Elderton, — Esq., 171
adjournment of, 172
(ApsournED), Nov. 28, 1864. .197-227
speeches at, of :—
Palmer, Sir Roundell, Knt., M.P. (Chairman), 197-198
Daniel, W. T.8., Esq., Q.C., 198-204
Best, W. M., Esq., 204-207
Denman, Hon. Geo. (now Mr. Justice Denman), 208-212
Morgan, Osborne, Esq., 212-214
Williams, Joshua, Esq., 214-216
Webster, T., Esq., 216-219
Ince, H. B., Esq., 219-220
Hemming, G. W., Esq., 220-223
Webster, Edward, Esq., 223-224
adopts report of Bar Committee, 226
resolution of, communicated to Judges, Benchers of Inns of Court,
Incorporated Law Society, etc., 226 7
reminiscences of, 229-230
method of taking votes at, 229
“Times, The,” article on, 231-234
“Daily News, The,” article on, 235-237
“Daily Telegraph, The,” article on, 237-240
“Derby Reporter, The,” article on, 240-242

BAR, PRIVILEGES OF, AS TO LAW REPORTING, 56
founded upon considerations of public benefit, 56
proposed restriction on, 57
of giving authenticity to reports, 57
suggested regulation of, as to Reporting, 62

BAR REPORTS, THE: see also Ban ScHEME.
proposal for establishment of, with exclusive authority, 57
steps proposed to be taken for founding, 58
proposed arrangements for production of, 58, 59°
what should contain, 60
salaries and duties of Editors and Reporters, proposed, 60
exclusive citation of, 60
proposed financial arrangements, 60, 61
suggested subscriptions, 61
to be self-supporting, 61
Government to take copies for use of judicial functionaries, 61

BAR SCHEME, THE (report of Committee appointed at Meeting of Bar held
on Dec. 2, 1863, to prepare plan for amendment of then system of Law
Reporting)

constitution of, 151-152
INDEX. 337

BAR SCHEME, THE—continued.
editors and reporters, proposed staff of, 152-154
duties, privileges and remuneration of, 153-154
_ financial arrangements, 154-156

meeting called by Attorney-General to take into consideration, 157

reasons of Mr. Joshua Williams for not supporting, 172-176

“Law Times,” on, 174

“Saturday Review,” on 174

letter to Sir Roundell Palmer, Knt., M.P., on, by W. T. 8. Daniel, Q.C., 175-196

reception of, by Bar and press, 175-176

names of members of committee who did not sign, 189

based on co-operation and confidence of Judges and all branches of Profes-
sion, 190

Mr. Joshua Williams’ objections to, considered, 196

adjourned meeting to consider, Nov. 28, 1862. .197-227

speech of W. T. 8. Daniel, Esq., Q.C., in support of, 198-204

data as to financial prospects of, 201-202

G. W. Hemming, Esq., on financial prospects of, 221-222

adopted at adjourned meeting of Bar on Nov. 28, 1864. .226

adoption of, by adjourned meeting of Bar held on Nov. 28, 1864. .226

directed to be communicated to Judges, Benchers of Inns -of Court, Incor-
porated Law Society, etc., 226

Mr. Hemming’s amendment at Bar Meeting of Nov. 28, 1864, probable con-
sequences if had been adopted, 230

“Times, The,” article on, 231-234

“Daily News, The,” article on, 235-237

“Daily Telegraph, The,” article on, 237-240

“Derby Reporter, The,” article on, 240-242

Attorney-General (Sir Roundell Palmer, Knt.), communicates adoption of,
by Bar Meeting to Lord Chancellor, Law Lords, Judges, Benchers of Inns
of Court, etc., 143

reception of resolution of Bar Meeting adopting, by Inns of Court, and reso-
lutions thereanent, 244-248

proposals of, discussed, 271-273

opinions of Judges on, 273

See also Ban CoMMITTEE.

BAR SCHEME (Irish), 294-295
BARNEWALL AND CRESSWELL,

circulation of, 188, 199, 259, 260, 325
remuneration paid to, 268

BARSTOW, JAMES, ESQ., appointed by Gray’s Inn member of Council of Law
Reporting, 295

BEAVAN, MR., 63
declines reportership at Rolls, 276, 299
appointed Examiner in Chancery, 300
cessation of Reports of, 300

BENCHERS OF INNS OF COURT, proposed memorial to, to appoint Council
of Law Reporting, 58
338 INDEX.

BEST, W. M., ESQ.
speech at meeting of Bar on July 1, 1864 ., 165-167
objections of, to Bar Scheme, 191
speech at adjourned Bar meeting, Nov. 28, 1864 .. 204-207
declines reportership in Queen’s Bench, 275, 299

BEST AND SMITH, 192
BLACKSTONE’S (H.) REPORTS, commencement of, 258

BLACKSTONE, SIR WILLIAM, 85, 86
remarks on system of Reporting in his time, 6

BOMPAS, H. M., Esq. (now Q.C.), appointed Reporter in Court of Common
Pleas by Council of Law Reporting (1865), 280
BRACTON, 84

BRETT, SIR W. B. (now Master of the Rolls) becomes ex-officio member ot
Council of Law Reporting, 308

BRICKDALE, M. J. F., ESQ.
communication to Bar Committee on Vested Interests of Reporters and
Publishers, 187

BRIDGMAN, SIR ORLANDO, 17

BRISTOWE, H. F., ESQ., communication to Bar Committee on Law Reporting,
113-117

BROUGHAM, LORD, on jealousy of patronage, 187

BROWN, JOSEPH, ESQ., Q.C.
services of, as chairman of Council of Law Reporting, 321

BROWNING, W. ERNST, ESQ., appointed Reporter for Admiralty and Eccle-
siastical Cases by Council of Law Reporting (1865), 280

BULWER, J. R., ESQ. Q.C.
appointed Editor of Common Law Series by Council of Law Reporting (1865),
279

BUTTERWORTH, MR., interview of, with W. T. 5. Daniel, Esq., Q.C., 257

CAIRNS, SIR HUGH M., KNT., Q.C., M.P. (now Earl Cairns),
resolution proposed by, at Bar Meeting of 2nd December, 1863..80
appointed member of Bar Committee, 80
speech at meeting of Bar on July 1, 1864..171

CAMPBELL, LORD, 52

CAVE, L. W., ESQ., (now Mr. Justice Cave)
appointed Reporter of Crown Cases Reserved by Council of Law Reporting
(1865), 280

CHARLES, ARTHUR, ESQ. (now Q.C.)
appointed Reporter in Court of Exchequer by Council of Law Reporting
(1865), 280
INDEX. 339

CIRCULAR

to Judges and Profession announcing appointment and objects of Bar Com-
mittee, 98-99

CITATION of competing Reports permitted, 266

CLARK, CHARLES, ESQ. (afterwards Q.C.)

appointed Reporter in House of Lords by Council of Law Reporting (1865),
279

CLOWES, MR. GEORGE: see Crowes (Wm.) & Sons.

CLOWES (Wm.) AND SONS,
data supplied by, to Bar Committee, as to cost of printing Law Reports,
200-201
interview of W. T. 8. Daniel, Esq., Q.C., with, preparatory to Bar Meeting,
202.
opinion of, on financial prospects of Bar Scheme, 202
explanation of circumstances attending introduction of, to W. T. S. Daniel,
Esq., Q.C., 227-229
proposals of Council of Law Reporting to, for printing, publication and
delivery of “The Law Reports,” 260-261
acceptance of, 261
agree to give priority to payment of first moiety of salaries of Reporters,
261
offer of, to make good number of subscriptions deficient, 275
“Law Reports, ‘l'he,” publication of first parts of, by, 291
arrangements for delivery and distribution of, by, 292
financial arrangements of, with Council of Law Reporting, 299
renewal of contract by, for printing and publishing “The Law Reports,’
805-306

COKE, LORD, 5, 23
on records of Parliament, 85

COLE, HENRY WARWICK, ESQ., Q.C.
letter of introduction by, of Mr. George Clowes to W. T. 8. Daniel, Esq.,
Q.C., 228
appointed by Inner Temple member of Council of Law Reporting, 308

COLLIER, SIR R. P., KNT., M.P. (afterwards Judge of Common Pleas, and
Member of Judicial Committee of Privy Council)
appointed Member of Bar Committee, 80
gazetted Solicitor-General, 67
assents to act.as ex-officio member of Council of Law Reporting, 249

COLTMAN, MR., declines Reportership in Exchequer, 274, 275, 296

COMMENCEMENT OF “THE LAW REPORTS”: see “Law Reporrs,
THE”

COMMITTEE OF GENERAL SUPERVISION appointed by Council of Law
Reporting, 303
340 INDEX.

COMMON LAW BAR,
feeling of, on proposed Bar Meeting to consider existing (1863) system of
Law Reporting, 69
names of leaders of, who signed requisition to Attorney-General to call Bar
Meeting, 76

COMMON LAW REPORTS, statistics relating to, 7
COMPENSATION, to Law Reporters and Publishers, 187

COMPETITION IN LAW REPORTING
effects of, discussed, 43, 188, 269
evils introduced by, 270

CONSOLIDATED FUND, proposed guarantee from, 201

CONSTITUTIONS, under Roman emperors, 83

COOKSON, W. 5., Esq. ‘
appointed by Incorporated Law Society member of Council of Law Reporting,
248 :

CO-OPERATIVE LAW STORE,
pleasantry of “The Saturday Review” on, 194

COST OF PRODUCTION OF LAW REPORTS, 129-130

COUNCIL OF LAW REPORTING,
proposals for establishment of, 58, 59, 142
proposed duties and powers of, 59
proposed incorporation of, by charter or Act of Parliament, 61
resolutions of Bar Committee as to, 140
of whom to consist, 140
constitution of (proposed), 151-152
appointment of first members of, by Inns of Court and Incorporated Law
Society, 247-248 é
resolutions of Inns of Court and Incorporated Law Society on Guarantee
Fund, 244-249
first meeting of, 249
attendance at, 250
Sir FitzRoy Kelly appointed permanent Chairman of, 250
W. T.5. Daniel, Esq., Q.C., appointed Vice-Chairman of, 250
Hopwood, J. T., Esq., appointed Secretary of, 250
objections to competency of, 251-252
preliminary address of, 252-256
proposals of, to Law Publishers, 256-257
Law Publishers, memorial of, to, 258-259
negotiations with proprietors of “ Law Journal,” 260
proposals of, for publishing and printing ‘The Law Reports,” to Messrs.
Wm. Clowes & Sons, 260-261
acceptance of, 261
sub-committee appointed to treat with Reporters of regular Reports, 261
objections of Reporters, 261
Mr. Hurlstone, letter from, to, raising objection to authority of, 274
special meeting to consider, 274-275
INDEX. 341

COUNCIL OF LAW REPORTING—continued.
address to Lord Chancellor and Judges, 276-281
Editors and Reporters, appointment of, by, 279-280
principles guiding selection of, 280
First Annual Report of, 297-302
list of members of (June, 1867), 297
financial arrangements, 299
appointment by, of Committee of General Supervision, 303
members of, 303
Annual Report of, for 1867 .. 304-309
financial position of (1867), 305-308
list of members of (1867), 304
financial statement of, for year ended December 31, 1867 ..310
list of members of (1868), 311
Annual Report of, for 1868 .. 811-314
Vice-Chairmanship of, resignation of, by W. T. 8. Daniel, Esq. Q.C. 314
reporters appointed by, who have acquired judicial dignity or professional
distinction, 332
observations on constitution of, 323-324
ex-officio members of, who attained judicial dignity, 330
members of, other than ex-officio, who attained judicial dignity, 331
See also BAR ComMITTEE; Bar Scurme; INcorPoraTED CounciIL or Law
REpPoRTING FOR ENGLAND AND WALES
COUNCIL (INCORPORATED) OF LAW REPORTING FOR ENGLAND
AND WALES: See Ixcorporatep Councin or Law Reportine ror Ene-
LAND AND WALES
CRANWORTH, LORD,
proposal by, of new system in publication of Equity Reports, 45
heads Bar guarantee list for salaries of Reporters, 261
approval by, of Bar Scheme, 262

COX, MR. SERJEANT, founds “ Law Times,” 3

“DAILY NEWS, The,” article on Bar Scheme, 235-237
“DAILY TELEGRAPH, The,” article on Bar Scheme, 237-240

DALLOZ,
Receuil Periodique et Critique de Jurisprudence, statistics relating to, 6

DANIEL, W. T. S., ESQ., Q.C.,
suggestions by, for an alteration in the present (1863) system of Law Re-
porting, 23-26
reception of, by Bar, 27
letter to Sir Roundell Palmer, Knt., Q C., M.P., on present (1863) system of
Law Reporting, its evils and the remedy, 28-63
letter to Sir Roundell Palmer, Knt., Q.C., M.P., on proposed meeting of

Bar, 67
letter from Sir Roundell Palmer, Kut., Q.C., M.P., to, on proposed meeting

of Bar, 68
letter to Sir Roundell Palmer, Knt., Q.C., M.P., accompanying requisition to

call meeting of Bar, 70
342 INDEX.

DANIEL, W. T.5., ESQ., Q.C.—continued.

resolution proposed by, at meeting of Bar on 2nd December, 1863 ..80

appointed member of Bar Committee, 80

prepares draft circular to Judges and Profession, stating appoimtment and
object of Bar Committee, 97

prepares rough draft of scheme founded on resolutions of Bar Committee, 142

undertakes to prepare Bar Scheme, 146

letter to Sir Roundell Palmer, Knut., Q.C., M.P., by, on Bar Scheme, 175-196

speech at Bar Meeting, Nov. 28, 1864.. 198-204

explanation of circumstances under which firm of Wm. Clowes & Sons be-
came known to, 227, 228

appointed by Lincoln’s Inn member of Council of Law Reporting, 247

appointed Vice-Chairman of Council of Law Reporting, 250

paper by, on Amendment of existing (1863) system of Law Reporting, read
before National Association for the promotion of Social Science, 263-273

Lord St. Leonards, conversation with, on “ The Law Reports,” 292

appointed Judge of County Courts, 302

prepares Report of Council of Law Reporting for 1867., 303

resigns Vice-chairmanship of Council of Law Reporting, 314

concluding observations by, 325

DAVIDSON, J. B., ESQ., appointed by Council cf Law Reporting Reporter in
Court of V.-C. Wood (1865), 280

DEAN, R. RYDER, ESQ., communication to Bar Committee on Law Reporting,
132-135

DE GEX, FISHER AND JONES, 193
DE GEX, MACNAGHTEN AND GORDON, 193

DENMAN, HON. GEO., Q.C., M.P. (now Mr. Justice Denman)
appointed member of Bar Committee, 81
»» member of sub-committee to inquire into practice of recording
judicial decisions in Foreign Countries, India, the Colonies, and
Scotland, 99, 148
against interference with present (1863) system of Law Reporting, 179
speech at adjourned meeting of Bar, Nov. 28, 1864.. 208-212

DENMARK, method of recording judicial decisions in, 148

DICKENS, WM. PARK, ESQ., communication to Bar Committee on Law Re-
porting, 132-135

DICKINSON, JAMES, ESQ., 204
appointed member of Bar Committee, 81

DIGEST OF CASES REPORTED, 809, 313, 316, 317
DOUGLAS, MR. (afterwards Lord Glenbervie), reports of, 267

DOUGLAS'S REPORTS, extract from, on nature and object of reports of judicial
decisions, 29

DOW’S REPORTS, commencement of, 268
DRUCE, GEORGE, ESQ., appointed member of Bar Committee, 81
INDEX. 343

EDDISON, EDWIN, ESQ., Hon. Sec. of Leeds Law Society, letter to Bar Com-
mittee, 136

EDITORS,

proposals by Bar Committee for appointment and removal of, 140-141
salaries of (proposed), 144
staff of (proposed), 152-154
duties, privileges, and remuneration of (proposed), 153-154

opposition to appointment of, 192

W. M. Best, Esq., on proposed appointment of, 205-207

appointed by Council of Law Reporting (1865) .. 279

ELDERTON, —, ESQ., 171, 227

ELLIS AND BLACKBURN, 192

ELLIS, BLACKBURN, AND ELLIS, 192

ELLIS AND ELLIS, 192

EQUITY, COURTS OF, method of recording judicial sentences in, 83

EQUITY REPORTS, statistics relating to, 8

EWART, W., M.P., proposal for appointment of select committee to inquire into
expediency of appointing authorized Reporters, 17, 47

EXCLUSIVE CITATION, 138, 142
must be result of professional choice and will, 191

FAC-SIMILE OF BAR GUARANTEE, (facing) 261
FIELD, W. V., Esq., (now Mr. Justice Field), 69

FINANCIAL STATEMENT OF COUNCIL OF LAW REPORTING for
year ended Dec. 31, 1867 ..310

FINANCIAL STATEMENT OF INCORPORATED COUNCIL OF LAW
REPORTING for 1883 ..319

FIRST ANNUAL REPORT OF COUNCIL OF LAW REPORTING (1867),
297-302

FORDHAM, J. H., ESQ., appointed Reporter in Court of M.R. by Council of
Law Reporting (1865), 279

FORSYTH, WM., ESQ., Q.C., appointed by Inner Temple member of Council of
Law Reporting, 248

FRANCE, method of recording judicial decisious in, 148

FREE TRADE,
_ abuse of principles of, 54 ;
term misapplied to any proper system of Law Reporting, 55

FREE TRADE AND MONOPOLY as applied to Law Reporting, 83, 180, 181

GARDINER, WM. DUNDAS, ESQ., appointment as joint Hon. Sec, of Bar
Committee, 100, 147

GIFFARD, DE LONGUEVILLE, ESQ. (now Judge of County Courts), 63
communication to Bar Committee on Law Reporting, 126-132
344 INDEX,

GIFFARD, DE LONGUEVILLE, ESQ.—continued.
data supplied by, to Bar Committee, 201
appointed Reporter in Court of V.-C. Stuart by Council of Law Reporting
(1865), 280
GIFFARD, G. M., ESQ., Q.C. (afterwards Lord Justice of Appeal),
appointed by Inner Temple member of Council of Law Reporting, 248
appointed Vice-Chancellor, 308
vacates seat on Council of Law Reporting, 308

GRAY’S INN, PENSION OF,
resolutions passed by, on reception of Bar Scheme, 246
appointment by, of two members of Council of Law Reporting, 295

GREENE, T. W., E8Q., Q.C., appointed by Middle Temple member of Council
of Law Reporting, 248

GRIFFITH, W. D., ESQ., appointed Reporter in Court of V.-C. Wood by
Council of Law Reporting (1865), 280

GUARANTEE BY BAR of salaries of Reporters, fac-simile of, and signatures,
(facing) 261

GUARANTEE FUND (proposed by Bar Scheme), resolutions of Inns of Court
and Incorporated Law Society as to, 244-249

GUNNING, T. W., ESQ., appointed Reporter in Court of V.-C. Kindersley by
Council of Law Reporting (1865), 280

HALE, SIR MATTHEW, 5, 28
History of Common Law, 83

HALL AND TWELL’S REPORTS, 38
HALLAM’S MIDDLE AGES, extract from, 55, 182

HARDWICKE, LORD, 17

HARE, MR., scheme for formation of Juridical Society, for publication of
Reports, 44

HARRISON, W. H., ESQ., communication to Bar Committce on Law Reporting,
132-135

HARRISON AND RUTHERFORD’S REPORTS, cessation of, 300
HASTINGS, G. W., ESQ., appointed member of Bar Committee, 81
HAWKINS, F. VAUGHAN, ESQ., appointed member of Bar Committee, 81

HAYES, MR. SERJEANT (afterwards Mr. Justice Hayes), 69
appointed by Serjeants’ Inn member of Council of Law Reporting, 296

elevation to Bench, 313

HEMMING, G. W., ESQ. (now Q.C.),
communication by, to Bar Committee on Law Reporting, 105-108
summary of objections to existing (1863) system of Law Reporting, 182
speech at adjourned meeting of Bar, Nov. 28, 1864 ., 220-223
amendment proposed by, at Bar Meeting, 224
probable consequences of, if had been adopted, 230
appointed by Council of Law Reporting Editor of Equity Series (1865), 279
INDEX. 345

HETLEY’S, SERJEANT, REPORTS, 184, 188:

HOBHOUSE, ARTHUR, ESQ. Q.C. (now Sir Arthur Hobhouse), 230
resolution proposed by, at Bar Meeting of 2nd December, 1863 ..80

HOLROYD, HY., ESQ. (mow Judge of County Courts), appointed Reporter in
Court of Queen’s Bench by Council of Law Reporting (1865), 275, 279

HOPWOOD, J. T., ESQ.,
appointed Hon. Sec. of Bar Committee, 97, 147
circular addressed by, to Judges and Profession, announcing appointment
and objects of Bar Committee, 99
appointed Secretary of Council of Law Reporting, 250
services of, 321-322

HURLSTONE, E. T., ESQ.
objection of, to authority of Council of Law Reporting, 274
declines reportership in Exchequer, 274, 275, 299
proposal by, and result of, 293-294

HURLSTONE & COLTMAN, cessation of Reports by, 300

INCH, H. B., ESQ. (now Q.C.), speech at adjourned meeting of Bar, Nov. 28,
1864 ., 219-220
INCORPORATED COUNCIL OF LAW REPORTING FOR ENGLAND
AND WALES: See also Councin or J.aw Reportine.
Report of, for 1883 ..3815-318
list of members of (1883), 315
financial statement for year ended Dec. 31, 1883..319
balance-sheet for 1883... 3820
observations on constitution of, 8323-324

reserve fund of, 322
ex-officio members of, who attained judicial dignity, 330
members of, other than ex-officio, who have attained judicial dignity, 331

INCORPORATED LAW SOCIETY,
proposed appointment by, of two members of Council of Law Reporting,

141, 142
resolutions passed by, on Bar Scheme, 248
forego repayment of sums advanced by them to Council of Law Reporting,

311

INNER TEMPLE, BENCHERS OF,
resolutions passed by, on reception of Bar Scheme, 247

INNS OF COURT, BENCHERS OF: see Bencurrs or Inns or Court.
INNS OF COURT,
proposed appointment by, of Members of Council of Law Reporting, 141,
142
forego repayment of sums advanced by them, 311

“INNS OF COURT PRESS, THE”
proposal for estab!ishment of, 61
suggested application of funds to be realized by, 61

IRISH BAR SCHEME, 294-295
346 INDEX.

IRREGULAR REPORTS: see UnaurHorizeD REPORTS.

ITALY, method of recording judicial decisions in, 148

JAMES, E. ESQ., Q.C. (afterwards Lord Justice James),
speech at meeting of Bar on July 1, 1864., 164-165

JOINT-STOCK COMPANY, ;
proposal for establishment of, to bring out Law Reports, considered, 195

JONES, CADMAN, ESQ. :
appointed Reporter in Chancery Appeal Courts by Council of Law Reporting
(1865), 279

JONES, DANIEL, ESQ. communication to Bar Committee on Law Reporting,
120-124

JUDGES,
attitude of, towards Bar Scheme, 273
address of Council of Law Reporting to, announcing commencement of “ The
Law Reports,” 276-281

JUDGES’ NOTES, 82

JUDICIAL DECISIONS,
report on method of recording in European States and United States of
America, 148-149

JUDICIAL DIGNITY,
ea:-officio members of Council of Law Reporting who attained, 380
members other than ex-officio, who attained, 331
reporters appointed by Council of Law Reporting who attained, 332

JUDICIAL PROUEEDINGS, records of, defects in, 84

“JURIST, THE,”
advocates establishment of authorized staff of Reporters, 22
prints Mr. Daniel’s paper on present system of Law Reporting, 26
establishment of, 37, 39
preliminary announcement of, 39
characteristics of, 39
suggestion by, for establishment of authorized staff of Reporters, 46
commencement of, 269
cessation of, 300

KARSLAKE, J. B., ESQ, Q.C. (afterwards Sir J. B. Karslake),
appointed by Middle Temple member of Council of Law Reporting, 248
objection of, to competency of Council of Law Reporting, 251-252

KAY, E. E. ESQ. (now Mr. Justice Kay),
communication to Bar Committee on Law Reporting, 108-111

KELLY, SIR FITZROY, KNT., Q.C., M.P. (afterward Lord Chief Baron),
resolution seconded by, at Bar Meeting of 2nd December, 1863 .. 80
appointed member of Bar Committee, 80
appointed by Lincoln’s Inn member of Council of Law Reporting, 247
INDEX. 347

KELLY, SIR FITZROY, KNT., Q.C., M.P.—continued.
appointed Chairman of Council of Law Reporting, 250
appointed Lord Chief Baron of the Exchequer, 292
vacates seat on Council of Law Reporting, 292
vote of thanks to, for services as Chairman of Council of Law Reporting, 293

KINDERSLEY, SIR R. T., Vice-Chancellor, 27
KNIGHT BRUCE, Lord Justice, 22, 27

LAW AMENDMENT SOCIETY,
establishment of, 3, 4
report (1848) on then existing system of Law Reporting, 4-14
report (1853) on what improvement, if any, may be made in present system
of Law Reporting, 15-21
competition in Law Reporting, extract from report on, 41
extracts from report of 1853..44, 45
statistics from reports of, as to cost of Law Reports, 89

“LAW AND EQUITY REPORTS, THE,” 38

“LAW JOURNAL, THE”
establishment of, 37
preliminary announcement of, 38
commencement of New Series of, 39
success of, 39
proposed arrangement for merging in “ The Law Reports,” 260

LAW JOURNAL (NEW SERIES), commencement of, 267

“LAW MAGAZINE, THE,”
on evils of existing system of Law Reporting, 11
proposal by, for establishment of authorized staff of Reporters, 22
article on Law Reporting (1848), 40
proposed remedy by, in Common Law Reporting, 46

LAW PUBLISHERS,
proposals to, by Council of Law Reporting, 256-257
memorial of, to Council of Law Reporting, 258-259
failure of negotiations with, 259
proposed commission to, for publishing “The Law Reports,” what would
have been financial results of, 259-260

LAW REPORTING,
professional opinion upon evils of, and efforts made for their removal, prior
and up to distribution of Mr. Daniel’s paper of 18th May, 1863. .3-26
question of, taken up by Law Amendment Society, 4
Law Amendment Society, reports of, on,
1848. .4-14
1853. .15-21
system of, in United States, 16 ae ih
suggestions for improvement in then (1858) existing system of, by Law
Amendment Society, 17-21
2A
348 INDEX.

LAW REPORTING—continued.
suggestions for alteration in present (1863) system of, by W. T. 8. Daniel,
Esq., Q.C., 23-26
reception of, by Bar, 27
letter to Sir Roundell Palmer, Knt., Q C., M.P., on evils of present (1863)
system of, by W. T. 8. Daniel, Esq., Q.C., 28-63
history of, 30 :
whether proper subject for commercial enterprise, 34
proposals of Law Amendment Society for improvement in, 44, 45
a function of the State, 54
impropriety of permitting to become an article of commerce, 54
remedy for existing (1863) evils in system of, 55-56
made matter of private enterprise, 56
privileges of Bar with respect to, 56, 57
requirements of public interest as to, 57
Lindley, N., Esq. (now Mr. Justice Lindley) on, 63-67
requisition to Sir Roundell Palmer, Knt., Q.C., M.P., to call meeting of Bar
to consider question of, 68: sce also Ban; Bar, MEETines or; REQUISI-
TION.
notice by Sir Roundell Palmer, Knt., Q.C., M.P., calling meeting of Bar to
consider existing (1863) system of, 71
resolutions of Bar Meeting of 2nd December, 1863, proposing amendment ot
existing system of, 80
letter on, in Morning Advertiser, 5 Dec. 1863. .93
circular to Judges and Profession announcing appointment of Bar Committee
to consider question of, 98-99
opinions on, of,
Bristowe, H. E., Esq., 113-117
Dean, R. Ryder, Esq., 182-135
Dickins, Wm. Park, Esq., 182-135
Giffard, T. W. De Longueville, Esq., 126-132
Harrison, W. H., Esq., 1382-135
Hemming, G. W. Esq., 105-108
Jones, Daniel, Esq., 120-124
Kay, E. E., Esq., 108-111
Lushington, Godfrey, Esq., 113-117
Lushington, Vernon, Esq., 113-117
Pearson, John, Esq., 111-118
Reilly, F. 5. Esq., 118-117
Roupell, C. M., Esq., 113-117
St. Leonards, Lord, 100-105
Turner, R. O. Esq., 1138-117
Williams, Joshua, Esq., 124-126
Wolstenholme, E. P., Esq., 113-117
State-aided, or State-supported, system of, suggestions for, by Mr. Alex. (now
Mr. Serjeant) Pulling, 81-90
growth of present system, 85
evils of then (1863) existing system of, 86-87
suggestions of Lord Westbury as to, 137
rough draft of scheme for amendment of system of, submitted to Bar Com-
mittee, 142-146
INDEX. 349

LAW REPORTING—continued.

report of Bar Committee on, 146-156

proposal for establishment of joint-stock company, considered, 195

letter to Sir Roundell Palmer, Knt., M.P., on, by W. T. 8. Daniel, Esq.,
Q.C., 175-196

professional opinion on existing (1863) system of, 178

redundancy of Reports, 181

State-aided system of, considered, 188, 189

effects of reckless competition on profits of, 188

paper onamendment of existing (1865) system of, read by W. T. 8. Daniel,

Esq., Q.C., before National Association for Promotion of Social Science

263-273

treated as matter of State concern, 267

effects of competition on, discussed, 269

Council of Law Reporting, preliminary address of, to Lord Chancellor and
Judges, announcing new scheme of, 276-281

“ Times, The,” article on, 283-286

“Standard, The,” article on, 286-289

“Spectator, The,” article on, 289-291

See also AUTHORIZED Reports; Bar, Meerinas or ; Bar Scuemn ; Reports

oF JupiciaL Decision; Unauruorizep Reports.

“LAW REPORTS, THE,”
preliminary statement, explanatory of character and objects of, 1
commencement of, 1
first step taken with view to establishment of, 1
history of origin of, summary of chronological divisions, 2
draft scheme submitted to Bar Committee for establishment of, 142-148
subscription to (proposed), 145, 256
report of Bar Committee proposing establishment of, 146-156: see also Bar
ComMITTEE; Bar ScnEME
financial arrangements proposed by Bar Committee for establishment of,
154-156
preliminary address announcing, 252-256
Lord Chancellor and Judges, address to, announcing commencement of, 276--
281
recapitulation of steps taken for establishment of, 276-279
Editors and Reporters, appointment of, 279-280
principles guiding selection of, 280
articles in press on commencement of :
“Times, The,” 283-286
« Standard, The,” 286-289
“ Spectator, The,” 289-291
publication of first parts of, 291
Lord St. Leonards, commendation of, by, 292
cost of production of, 8306-307
subscriptions for, 307
reduction of subscription to, 318, 322

future of, 324-325
See also Ban Committee; Bar Scneme; CLowes (Wm.) & Sons.

2Aa2
850 INDEX.

LAW REPORTS, statistics relating to cost of production of, 129-130
LAW REPORTERS, remuneration of, 48, 49

“LAW REVIEW, THE,”
extract from, 20
article on Law Reporting (1848), 40
list given in 1842 of reports disclaimed by Judges, 87

“LAW TIMES, THE,”
commencement of, 3, 37, 40-269
preliminary announcement of, 40
change in character of, 40
attack of, on Bar Scheme, 174

LEEDS LAW SOCIETY, letter from Hon. Sec. of, to Bar Committee, 136

“LEGAL OBSERVER, THE,”
establishment of, 38

LEIGH, THE HON. E. CHANDOS (now Q.C.), appointed Reporter of Crown
Cases Reserved by Council of Law Reporting (1865), 280

LETTERS,

Daniel, W.T.S., Esq., Q.C., to Sir Roundell Palmer, Knt., Q.C., M.P., on pre-
sent (1863) system of Law Reporting, its evils, and the remedy, 28-63

Daniel, W. T. S., Esq., Q.C., to Sir Roundell Palmer, Knt., Q.C., M.P., 67

Palmer, Sir Roundell, Knt., Q.C., M.P., to W. T. 8. Daniel, Esq., Q.C., on pro-
posed meeting of Bar, 68

Daniel, W. T. 8., Esq., Q.C., to Sir Roundell Palmer, Knt., Q.C., M.P., on
presenting requisition to call meeting of Bar, 70

Palmer, Sir Roundell, Knt., M.P., Q.C., to W. T. 8. Daniel, Esq., Q.C.,
acknowledging receipt of requisition to call meeting of Bar, 71

“ An Obliged Client” to Sir Roundell Palmer, Knt., Q.C., M.P.,—“ Morning
Advertiser,” Dec. 5, 1863 ..93

Hopwood, J. T., Esq.,—circular to Judges and Profession, 99

Eddison, E., Esq., Hon. ‘Sec. of Leeds Law Society, to Bar Committee,

136

Daniel, W. T. 5.,Q.C., Esq., to Sir Roundell Palmer, Knt., M.P., on Bar
Scheme, 175-196

Cole, H. W., Esq., Q.C., introducing Mr. Geo. Clowes to W. T. S. Daniell,
Esq., Q.C., 228

Williams, William, Esq. (Vice-President of Incorporated Law Society), to
W. 'T. 8. Daniel, Esq., Q.C., on Guarantee Fund, 249

Kelly, Sir FitzRoy, to J. T. Hopwood, Esq., acknowledging vote of thanks
for services as Chairman of Council of Law Reporting, 293

Hurlstone, E. T., Esq., to W. T. 8. Daniel, Esq., Q.C., 293

Chatterton, Sir H. E., to W. T. 8. Daniel, Esq., Q.C., on Irish Bar
Scheme, 294

LIMITED LIABILITY COMPANY, proposal for establishment of, to bring out
Law Reports considered, 195
INDEX. 351

LINCOLN’S INN, COUNCIL OF,
communication to, of resolutions of Bar meetings, 243
resolutions proposed thereon, 244
55 passed thereon, 245-6-7
appoint Sir FitzRoy Kelly and W. T. S. Daniel, Esq., Q.C., members
of Council of Law Reporting, 247

LINDLEY, NATHANIEL, ESQ. (now Mx. Justice Linpey), 127
paper on Legal Reports, 63-67
what should be excluded from, 64
59 iy included in, 64
how should be framed, 64
what they should shew, 64
suggestions for printing and publication of, 65
irregular Reports, 65
“authorized” Reports, defects of, 66
proposals for improvement of, 66
answers to objections, 67
appointed member of Bar Committee, 81

LOFFT’S REPORTS, observations of Park, J., on, 9

LONDON GAZETTES, Index to, 317

LUSHINGTON, GODFREY, ESQ., communication to Bar Committee on Law
Reporting, 117-120

LUSHINGTON, VERNON, ESQ., communication to Bar Committee on Law
Reporting, 117-120

MACQUEEN, J. F., ESQ. (afterwards Q.C.), appointed by Council of Law Re-
porting Reporter in House of Lords (1865), 279
MALINS, RICHARD, ESQ, Q.C., M.P. (afterwards Sir Richard Malins, V.-C.),

230
resolution seconded by, at Bar Meeting of 2nd December, 1863 .. 80

speeeh at meeting of Bar on July 1, 1864..169-171

MANISTY, H., ESQ. (now Mr, Justice Manisty), speech at meeting of Bar on
July 1, 1864..171

MARETT, CHAS., ESQ., appointed Reporter in Court of M.R. by Council of
Law Reporting (1665), 279

MATTHEWS, HENRY, ESQ. (now Q.C.),
appointed member of Bar Committee, 81

appointed member of sub-committee to inquire into practice of recording
judicial decisions in Foreign Countries, India, the Colonies, and Scotland,

99, 148
MEETING OF BAR: See Bar, MEETING oF.
MELLISH, GEO., ESQ., Q.C. (afterwards Lorp Justice MELLISH) appointed
member of Bar Committee, 81
MICHAELMAS TERM, 1865, commencement of “ The Law Reports” on, 283
852 INDEX.

MIDDLE TEMPLE, PARLIAMENT OF, resolutions passsd by, on reception
of Bar Scheme, 246-247

MILLER, A. E., ESQ.,
speech at meeting of Bar on July 1, 1864.. 167-168
objections of, to Bar Scheme, 191

MILLS, WM., ESQ., appointed Reporter in Court of Queen’s Bench by Council
of Law Reporting (1865), 275, 279

MONOPOLY, term misapplied to any proper system of Law Reporting, 55
MONOPOLY AND FREE TRADE, as applied to Law Reporting, 53, 180, 181
MONOPOLY IN LAW REPORTING, the question considered, 265

MORGAN, G. OSBORNE, ESQ., (now Q.C.), 230
resolution seconded by, at Bar meeting of 2nd December, 1863 .. 80
speech at adjourned meeting of Bar, Nov. 28, 1864... 208-212

“MORNING ADVERTISER, THE,” letter on Law Reporting, 93

MORSE, T. F., ESQ., appointed Reporter in Court of V.-C, Stuart by Council of
Law Reporting (1865), 280

NAPIER, RIGHT HON. JOSEPH, address at Social Science Congress (1858),
22, 147

NATIONAL ASSOCIATION FOR THE PROMOTION OF SOCIAL
SCIENCE,
Paper read before, by W. T. 8. Daniel, Esq. Q.C., on Amendment of existing
(1865) system of Law Reporting, 263-273
“NEW REPORTS, THE”
establishment of, 37, 89, 48, 269
abandonment of, 300

NORWAY AND SWEDEN,
method of recording judicial decisions in, 148

O'BRIEN, MR. SERJEANT, appvinted by Serjeants’ Inn member of Council of
Law Reporting, 314

OFFICIAL REPORTERS, 16
motion before Bar Committee in favour of principle of, 139
question of appointment of, discussed, 184
system of, in United States, 185
objections stated, 185-187

OFFICIAL REPORTING, 138, 189
OMNIBUS REPORTS, THE, 38
OPEN COURT, decisions to be pronounced in, 83
INDEX. 353

PALMER, SIR ROUNDELL, KNT, Q.C., M.P. (now Eart or SELBORNE) :

letter to, on present (1863) system of Law Reporting, its evils, and the
remedy, 28-63

gazetted Attorney-General, 67

letter to, from W. T.S, Daniel, Esq., Q.C., on proposed meeting of Bar, 67

letter from, to W. T. S. Daniel, Esq., Q.C., on proposed meeting of Bar, 68

requisition to, to call meeting of Bar, 68,69: See also BAR; Ban, MEETING oF.

list of signatures to, 72-76
names of leaders of Common Law Bar who signed, 76

letter to, on presenting requisition to call meeting of Bar, 70: See also Bar,
Meerine oF ; Requisition.

presides at meeting of Bar on 2nd December, 1863 ..80

letter to, in “Morning Advertiser” of 5th December, 1863... 93

calls meeting of Bar on July 1, 1864, to take into consideration report of
Bar Committee, 157: See also Barn ScuEmn.

speech at meeting of Bar on July 1, 1864..157-159

letter to, by W. T. 8. Daniel, Esq., Q.C., on Bar Scheme, 175-196

calls adjourned meeting of Bar for Nov. 28, 1864..197

appointed Attorney-General, 227

appointed by Lincoln’s Inn member of Council of Law Reporting, 292

appointed permanent Chairman of Council of Law Reporting, 293

communicates resolution adopting Report of Bar Committee to Lord Chan-
cellor, Law Lords, &¢., 243

assents to act as ex-officio member of Council of Law Reporting, 249

PARK, J.,
observations of, on Loft’s Reports, 9

PEARSON, JOHN, ESQ. (mow Mr. Justice Prarson)
communication to Bar Committee on Law Reporting, 111-113

PHILLIMORE, SIR ROBERT, KNT., Queen’s Advocate (afterwards Judge

of the Court of Admiralty),
appointed member of Bar Committee, 80
ceases to be ex-officio member of Council of Law Reporting by elevation to~

bench, 808
PLOWDEN, on preparation of Year-Books, 86

PRELIMINARY ADDRESS OF COUNCIL OF LAW REPORTING, 252-
256

PRELIMINARY ADDRESS OF COUNCIL OF LAW REPORTING TO
LORD CHANCELLOR AND JUDGES, 276-281

PROFESSIONAL CAREER OF MEMBERS OF BAR COMMITTEE, 327-
828

PRIVILEGE, 53
of Bar, with respect to Law Reporting, 56

PULLING, MR. SERJEANT, 69
connection of, with Law Amendment Society, 3 :
appointed Chairman of Committee of, to consider then (1848) system of -

Law Reporting, 4
354 INDEX.

PULLING, MR. SERJEANT—continued.
reports drawn up by, in 1848 and 1853, on behalf of Law Amendment
Society, on then system of Law Reporting, 4-14; 15-21

pamphlet by, suggesting State-aided, or State-supported, system of Law
Reporting, 81-90

appointed member of Bar Committee, 81

appointed member of sub-committee to inquire into practice of recording
judicial decisions in Foreign Countries, India, the Colonies, and Scotland,
99, 108

proposes principle of Official Reporters, 139

appointed by Serjeants’ Inn member of Council of Law Reporting, 296

QUAIN, J. B., ESQ. (afterwards Judge of the Queen’s Bench),
appointed member of Bar Committee, 81
appointed member of sub-committee to inquire into practice of recording
judicial decisions in Foreign Countries, India, the Colonies, and Scotland,
99, 148

RECORDER OF CITY OF LONDON, 84
RECORDERS, original function of, 84

RECORDS OF JUDICIAL PROCEEDINGS, 84
method of entering at Common Law, 82
deficiency of, 85

RECORDS OF PARLIAMENT, Lord Coke on, 88

REDUCTION OF SUBSCRIPTION TO “THE LAW REPORTS,” 318, 322

REILLY, F. 5., ESQ. (afterwards Q.C.), communication to Bar Committee on
Law Reporting, 113-117

REMINISCENCES OF BAR MEETING of Nov. 28, 1864... 229-330

REPORT OF COMMITTEE appointed at meeting of Bar, held 2nd Dec. 1863,
146-156

REPORTERS,
proposals by Bar Committee for appointment and removal of, 139-140
duties and salaries of (proposed), 144
staff of (proposed), 152, 154
duties, privileges, and remuneration of (proposed), 1538-154
appointed by Council of Law Reporting (1865) ., 279
principles guiding selection of, 280
list of, appointed by Council of Law Reporting, who have acquired judicial
dignity or professional distinction, 332

REPORTERS, AUTHORIZED,
proposals to, by Council of Law Reporting, 261
objections raised by, 261

REPORTS, AUTHORIZED: See Aurnorizep Reports.
REPORTS, UNAUTHORIZED : See Unauruorizep Reports,
INDEX. 355

REPORTS OF COUNCIL OF LAW REPORTING AND INCORPORATED
COUNCIL OF LAW REPORTING,
1866 .. 297-302
1867 .. 304-309
1868 ., 311-314
1883 .. 815-318

REPORTS OF JUDICIAL DECISIONS,

nature and object of, defined, 29

how should be prepared and promulgated, 30

evils of want of authenticity in, 31

singleness, or unity, should be essential characteristics of, 31

want of certainty in, great defect in English jurisprudence, 32

what degree of accuracy necessary in, 32

authenticity, singleness, and accuracy, essential, 33

speedy publication and reasonable cost essential, 33

points to be insisted upon in, 84

Bar Meeting of 2nd December, 1863, resolution on present system of pre-
paring, 80

defects in system of recording (1863), 86-87

method of recording in European countries and United States, 148-149

official system of reporting considered, 188-189

Lindley, N., Esq. (vow Mr. Justice Lindley) on, 63-67
See also Law REportING.

REQUISITION
to Attorney-General (Sir Roundell Palmer, Knt., M.P., Q.C.), to call meeting
of Bar to consider existing (1863) system of Law Reporting, 68-71
letter accompanying presentation of, 70
signatures to, 72-76
See also BAR, MEETINGS OF.

RESERVE FUND, 322
RIDGWAY’S REPORTS, 17

ROUPELL, C. M. ESQ., communication to Bar Committee on Law Reporting,
113-117

RUMSEY, ALMARIC, ESQ., 207

RUSSELL, J. A., ESQ., Q.C., appointed by Gray’s Inn member of Council of
Law Reporting, 314

RUSSELL’S REPORTS, 193
RYMER’S FQIDERA, 184

ST. LEONARDS, LORD,
extracts from preface to Law of Property, 10, 87
communication by, to Bar Committee, on Law Reporting, 100-105
objections of, to Bar Scheme, 244-245
withdrawal of, 245
commendation of ‘ The Law Reports” by, 202
356 INDEX.

“SATURDAY REVIEW, THE,”
attack on Bar Scheme, 174
on redundancy of Law Reports, 181
on ‘Co-operative Law Store,” 194

SCHEME (DRAFT) submitted to Bar Committee on Law Reporting, 142-146

SCOTT, JOHN, ESQ., appointed Reporter in Court of Common Pleas by Council
of Law Reporting (1865), 280

SEARLE, R., ESQ., appointed Reporter in Probate and Divorce Court by Council
of Law Reporting (1865), 280

SELBORNE, EARL OF: See Parmer, Sir RounpveE.t.
dedication to, iii.

SELWYN, C. JASPER, ESQ., Q.C., M.P. (afterwards Lord Justice Selwyn), 230
appointed member of Bar Committee, 80
ceases to be ew-officio member of Council of Law Reporting by elevation to
bench, 308

SELECT COMMITTEE OF HOUSE OF COMMONS proposed to inquire into
expediency of appointing authorized Reporters, 22

SERJEANTS’ INN,
non-appointment by, of Member of Council, 262
appointment by, of two members of Council of Law Reporting, 296

SIGNATURES to requisition to Attorney-General to call meeting of Bar to con-
sider existing (1863) system of Law Reporting, 72-76

SMALE, J. J., ESQ., appointed by Council of Law Reporting Reporter in Court
of V.-C. Kindersley (1865), 280

SMITH, MONTAGUE E., ESQ., Q.C., M.P. (afterwards Judge of Common Pleas
and member of Judicial Committee of Privy Council),
appointed member of Bar Committee, 80
proposes principle of official Reporters, 139

SMITH, R. HORTON, ESQ. (now Q.C.), appointed Reporter in Chancery
Appeal Court by Council of Law Reporting (1865), 279

SMITH, — ESQ., declines reportership in Queen’s Bench, 275, 299

SOCIAL SCIENCE CONGRESS (1858), suggestions of Rt. Hon. J. Napier on
reporting of judicial decisions, 22

SOCIAL SCIENCE, NATIONAL ASSOCIATION FOR THE PROMOTION
OF, paper read before, by W. T. 8. Daniel, Esq., Q.C., on Amendment of exist-
ing (1865) system of Law Reporting, 263-273

“ SOLICITORS’ JOURNAL, THE,” establishment of, 38

“SPECTATOR, THE,” “The Law Reports,” commencement of, article on,
289-291

“STANDARD, THE,” “The Law Reports,” commencement of, article on,
286-289
STATE, THE,

neglect of, to provide for discharge of public duty in case of Law Reporting, 56
Law Reporting a function of, 54
INDEX. 357

STATE-AIDED SYSTEM OF LAW REPORTING, 188
recommended by Law Amendment Society, 18-21
pamphlet by Mr. Alex. (now Mr. Serjeant) Pulling on, 81-90
question of, discussed, 271 .
STATISTICS RELATING TO COST OF PRODUCTION OF LAW RE-
PORTS, 89, 120-130
“STATUTES, THE,” 309
STIRLING, JAMES, ESQ., appointed Reporte: in Court of M.R. by Council of
Law Reporting (1865), 279
STUART, SIR JOHN, VICE-CHANCELLOR, 27
SUBSCRIPTION TO “THE LAW REPORTS,”
proposed, 145
reduction of, 318, 322

SUGDEN, SIR E.: See St. Leonarps, Lorp.

SUITORS’ FUND, proposed guarantee from, 201

SUPERIOR COURTS, no provision made for accurate record of proceedings of,
82

SWEET, GEORGE, ESQ., 22
paper by, read before Juridical Society, on Law Reporting, extracts from,

47

proposals of, 48

appointed member of Bar Committee, 81
negotiates with Law Publishers, 257

TAVERNER, LEWIN, ESQ.,
appointed by Gray’s Inn member of Council of Law Reporting, 295
retirement of, 314

TERM REPORTS, THE
commencement of, 267
extract from preface to, 267
appreciation of, 268

“TIMES, THE,” :
Bar Meeting, article on calling of, for the 2nd of December, 1863 ..77
results of Bar Meeting, article on, 90
Bar Scheme, article on, 231-234
“The Law Reports,’ commencement of, article on, 283-286

“TIMES LAW REPORTS, THE,” 3824

TRISTRAM, Dr., appointed by Council of Law Reporting Reporter in Probate
and Divorce Court (1865), 260

TURNER, R. 0., ESQ., communication to Bar Committee on Law Repoiting
113-117

TURNER, LORD JUSTICE, 27

TWISS, SIR TRAVERS, becomes ew-officio member of Council of Law Report-
ing, 308 :
358 INDEX.

UNAUTHORIZED REPORTS,
list of, 37
purpose of, 49
effect of, upon cost of authorized Reports, 49
cost of, 50, 51
competition, evil effects of, 51, 52
Lindley, N., Esq. (now Mr. Justice Lindley) on, 65
Lord Westbury’s suggestion as to, 137
UNITED STATES, method of recording judicial decisions in, 16, 149

VERULAM SOCIETY,

objects of, 3

cessation of, 3
VESEY’S REPORTS, commencement of, 268
VESTED INTERESTS,

in Law Reporting, 89, 90

of Law Reporters and Law Publishers, 187

VOTING at Bar Meeting on Nov. 28, 1864, method of, 229-230

WALLACE, JOHN WILLIAM, ESQ. (of Philadelphia), observations on report-
ing in United States, 185

WARE, MARTIN, ESQ., appointed Reporter in Chancery Appeal Courts by
Council of Law Reporting (1865) .. 279

WATKINS’ PRINCIPLES OF CONVEYANCING, extracts from, on Law
Reporting, 6, 10, 11, 87

WEBSTER, EDWARD, Esq., speech at adjourned meeting of Bar, 223-224

WEBSTER, T., Esq., speech at adjourned meeting of Bar, Nov. 28, 1864..216-
219

“ WEEKLY NOTES,”
proposed establishment of, 143
establishment of, 301

“ WEEKLY REPORTER, THE,”
establishment of, 41, 37, 269
extracts from preface to first volume of, 42
its assumption of superiority questioned, 43

WEST’S REPORTS, 17
WESTBURY, LORD,
speech on Statute and Case Law, 26
deputation to, to obtain assistance of Government in establishing set of Law
Reports, 26
on revision of the law, 83
interview of Chairman of Bar Committee with, 137
WESTLAKE, JNO., ESQ.,
appointed member of Bar Committee, 81
appointed member of sub-committee to inquire into practice of recording
judicial decisions in Foreign Countries, India, the Colonies, and Scot-
land, 99, 148
in favour of judgments of superior Courts being written, 139
INDEX. 359

WEYLAND, MARGARET, case of, 84
WIGRAM, L, T., ESQ., Q.C., appointed Treasurer of Lincoln’s Inn, 244
WILDE, SIR JAMES (now Lorp Penzance), on case-law, 182
WILLES, MR. JUSTICE, 100
WILLS, MR. JUSTICE, 321
WILLIAMS, F, G. A., ESQ., appointed Reporter in Court of V.-C. Wood by
Council of Law Reporting (1865), 280
WILLIAMS, JOSHUA, ESQ. (afterwards Q.C.)
appointed member of Bar Committee, 81
reasons for not signing report of Bar Committee, 172-174
objections to Bar Scheme cunsidered, 196
communication to Bar Committee on Law Reporting, 124-126
proposes that all judgments of Superior Courts shall be written, 139
speech at adjourned meeting of Bar, Nov. 28, 1864 .. 214-216
WILLIAMS, WM., ESQ.
appointed by Incorporated Law Society member of Council of Law
Reporting, 248
services of, as member of Council of Law Reporting, 321
only remaining member of first Council, 321
WOLSTENHOLME, E. P., ESQ., communication to Bar Committee on Law
Reporting, 113-117
WOOD, SIR W. P. Vice-Chancellor (afterwards Lorp HATHERLEY), 27, 100
WORDSWORTH, — ESQ., speech at meeting of Bar on July 1, 1864..168-
169

YEAR-BOOKS, THE, 17, 84
compiled by prothonotaries, 86
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