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The most ancient compilations of this sort were the work of persons specially appointed for the purpose. In what particular manner they exercised their function, how far the courts superintended; or the judges assisted or revised their labours, no where appears; and indeed almost every thing relating to them is involved in so much obscurity, that I believe their very names are totally unknown.
It is probable, however, that the cotemporary judges, and those who immediately followed them, had satisfactory reasons for confiding in the accuracy of those reporters, since their writings, called the Year-books, have always possessed a degree of traditional weight and authority superior to what is allowed to any subsequent Reports.
This, indeed, is in some measure owing to the circumstances of their priority in point of time, exclusive of any consideration of peculiar authenticity or excellence, the decisions contained in them forming the basis of that large superstructure of successive determinations which now fills the library of an English lawyer.
The special office of reporter was discontinued so long ago as the beginning of the reign of Henry VIII. and the history of the judicial proceedings in Westminster Hall, from that time till now, would have been lost in oblivion, if it had not been for the voluntary industry of succeeding reporters.
The example was first set by some of the ablest judges and lawyers of the 16th century, who, finding
that official accounts were no longer taken of what passed in the courts of justice, were stimulated by a commendable zeal for that science of which they were distinguished ornaments, to commit to writing for the use of posterity, the history
of the most important decisions which took placer within their practice or observation.
Those eminent persons have had a numerous train of followers, of different descriptions, who, with unequal merit, and various success, have continued down to the present times, a pretty regular series of decided cases.
In the reign of James I. Lord Chancellor Bacon procured the revival of the ancient office of reporter, but it was soon dropped again, and does not seem, while it continued to have been productive of the advantages expected from it. I know of no Reports attributed to the persons then nominated to the office, except those printed in the name of Serjeant Hetley, who, as we are told in the title page, was appointed by the King and Judges for one of the Reporters of the Law. Whether it was he or the Lord Keeper Littleton who was really the author of those Reports, (many of them being exact duplicates of those ascribed to Littleton,) they are far from bearing any marks of peculiar skill, information, or authenticity.
Soon after the Restoration, an act of parliament having prohibited the printing of law books without the licence of the Lord Chancellor, the two Chief Justices, and the Chief Baron, it became the practice to prefix such a licence to all Reports published after that period, in which it was usual for the rest of the Judges to concur, and to add to the imprimatur a testimonial of the great judgment and learning of the author. The act was renewed from time to time, but finally expired in the reign of King William. But the same form of licence and testimonial continued in use till not many years ago; when, as the one had become unnecessary, and the other was only a general commendation of the writer, and no voucher for the merit of the work, the Judges, I believe, came to a resolution, not to grant them any longer; a 4
and, accordingly, the more recent Reports have appeared without them.
I leave to others the enquiry into the reasons why the law has not provided some method of handing down its decisions to future times, more solemn and authentic than what is now known, or indeed seems ever to have existed; and I proceed to state to the reader the means I have employed to render the following Reports as faithful, correct, and useful, as it was in my power to make them. . When the question arose upon the pleadings, or was connected with them, there is hardly an instance where I have not been favoured, in the most obliging manner, with the paper-book, as it is called; that is, a copy of the record itself. In like manner, I have been supplied with copies of almost all the special verdicts, cases reserved, and material rules, affidavits, and exhibits. I have also had the most ready access to consult and transcribe whatever I thought necessary, in the Crown Office, or that of the clerk of the rules, as wellas the cases sent from the Court of Chancery, and the certificates of the court upon
One of the greatest difficulties I had to encounter was, in obtaining a complete state of the facts when the case came on in the shape of a motion for a new trial. I was obliged, on such occasions, to collect them, on the sudden, as they were read from the report of the Judge, and frequently without any previous knowledge of the cause.
Some of the most essential circumstances, which had escaped me at first, I was perhaps able to recover afterwards, from the observations made upon them by the counsel or the court. But then, in endeavouring to catch the facts in that manner, I was in great danger of losing the chain of the argument. It has been my study to remedy these inconveniences by every assistance within my reach. The briefs of counsel have never been
withheld from me; but though they are extremely useful and safe, where exhibits are to be set forth or abridged, as deeds, bills of exchange, policies of insurance, &c. they cannot be resorted to, but with the utmost caution, for the parol' testimony in a cause. Yet even there, they have often served to explain an ambiguity, or supply an omission, in the notes I had taken in court. In all cases I have had it in my power to collate my own notes of the evidence with those of a great many of my friends at the bar; frequently with those of the counsel who were concerned in the cause.
In considering what is the best method of reporting, I found that different writers had proceeded upon plans widely different from one another.
Some have prefixed, to all the leading cases, a full copy of the pleadings, thereby rendering their work at the same time a book of entries, and of reports. It was once my intention to have done so, but I was dissuaded from it by much better opinions than my own.
Some have not only stated the facts at great length, but have given the arguments of counsel almost as diffusely as they were delivered at the bar, distinguishing the speeches of the different advocates on the same side, separately, under the names of each.
Others, on the contrary, have only given a very abridged state of the case, together with the mere point decided, omitting not only all the arguments at the bar, but also most of the reasoning of the court.
Each of these two methods has its partizans, and each has its peculiar advantages and disadvantages. The first is more instructive for the younger part
of the profession; it exhibits a more complete picture of the case, and does more justice to the learning and ingenuity of the several advocates.
But, on the other hand, its prolixity fatigues the attention, it abounds with repetitions, and often disgusts the experienced lawyer, by a detail of elementary principles, trivial arguments, and hackneyed authorities.
I have endeavoured to steer a middle course between those two extremes.
1. I have been particularly attentive to state whatever was material in the pleadings or evidence; and sometimes, where I was afraid of omitting what might be deemed essential, I have set forth verbatim, a case, a plea, or a special verdict.
9. I have thrown together, into one discourse, the arguments which were used by all the different counsel who spoke on the same side, digesting them in the order which seemed to me to give them the greatest effect. In following this plan, as I have been often obliged to cloath the thoughts of others in language of my own, so I have been rather solicitous to preserve what appeared weighty and important in point of reasoning and authority, than anxious to retain every thing that was said. But I have taken care to omit no cited cases which I have found upon examination to be materially applicable to the point in question.
3. The judgments of the court I could have wished to give in the words in which they were delivered. But this, I often found to be impracticable, as I neither write short-hand, nor very quickly. Memory, however, while the case was recent, supplied at home, many of the chasms which I had left in court; and, by comparing, and as it were confronting a variety of notes taken by others, with my own, I was frequently