By: Jim Hart
After Professor Reynolds presentation, Diversities among Common Law Nations, Emeritus Professor Sir John Baker and Professor David Ibbetson spoke on the historical development of modern precedent and case reporting. Although the two differ superficially, they are in fact deeply intertwined. It may be said that they both spring from the same origin: changes in the theory of authority in the sixteenth and seventeenth centuries.
Professor Baker began with the origins of case reporting in England, as we know it, between 1550 and 1650. The story begins at the end of the series of Year Books in 1535. When Edmund Plowden entered the Middle Temple in 1538, he began compiling reports of cases and continued this practice throughout his career. These reports were published as Plowden’s Commentaries in 1571. They were the first of the nominate reporters and differed in important respects from the Year Books.
Although the Year Books had been anonymous, Plowden published his Commentaries under his own name. He had found out that someone had quickly and carelessly copied his notes and intended to publish them. He was forced to publish them under his name to secure the credit for his assiduous work. Indeed Plowden felt it necessary to apologize for putting out his reports in his own name.
A more substantive departure from the Year Books is his decision to include only considered decisions (decisions of particular importance that set precedent) in his reports. Although he copied the Latin so that readers could see the pleadings, he translated them into law French because of the wide-spread doubt that the common law could be expressed satisfactorily in English.
But his greatest departure was recording cases after judgment because this is what the profession wanted. The Year Books had recorded cases before trial, which is why they had not included many things that we now take for granted. This is why the Year Books seem so inconclusive. To the compilers of the Year Books, the judgment was considered legally uninteresting in comparison with the material that preceded it such as the pleadings, the issue, the arguments, etc. At this time the judicial system was not designed primarily to elicit decisions, but to frame the points that were to be referred to a jury. Judges’ rulings concerned procedure and were spoken in court so they were not available for copying. By Plowden’s time things had changed. The profession wanted to know how and why a case ended as it did. It seems to me that this is the most important point made in Professor Baker’s talk. For it was the development of the idea of precedent both on the Continent and in England at this time, as Professor Ibbetson was to explain next, that led to the changes in the legal system that the profession’s need for a new kind of reporter.
Finally there were two other new, important practice adopted by Powden. Unlike the Year Books, Plowden also consulted those who were involved in the case to ensure accuracy and he included the judgment, which the Year Books could not have done because they reported cases before judgment. The judgments were set in a different type so they wouldn’t be confused with the reports.
Plowden set a high standard and there was never to be another volume quite like it. Most of what Plowden included is to be found in today’s reports. Indeed Plowden’s departures from the Year Books were the origin of our view of what a good report should include. What we now call the judgment includes the judge’s informal statement of the case, the facts of the case, the legal question, the arguments presented in court, references to the authorities, and the reasons for the conclusion.
The second most important point that Professor Baker made, in my opinion, was that there was a continuous line of reporting that began with Plowden and continued through Dyer and Coke. This line formed the tradition that the future nominate reports continued.
The work of the next reporter, Dyer, was published posthumously. Sir James Dyer began gathering his reports in the 1530s, before Plowden had begun. He left his manuscripts to his two nephews who were law students. The published edition was taken straight from Dyer’s notebooks. Although it included over a thousand entries, it left a lot out, e.g, cases that might embarrass a living person, cases that Plowden had already covered, and matters too sensitive to make public for reasons of state. Within twenty-five years of their publication, the notebooks were in the possession of Sir Edmund Coke who cited them often.
It was common for judges to keep jottings in notebooks at this time as aids to memory. The exception to this was Edmund Coke whose work was published in eight volumes. He began taking notes in the 1570s and began making them available to others in the next decade. The earlier notebooks were essentially the story of Coke’s rise in the bar. Coke embellished and amplified on many of the cases. In 1616 he was charged with inaccurate reporting and assigned to correct them. Francis Bacon volunteered to help with the task. In the very next year Bacon was made Lord Chancellor and banned Coke from Westminster. He did, however, put forward a proposal to hire three lawyers to report on the cases at Westminster at a salary of £100 a year. Although there were never more than two reporters, Bacon had revived the old custom. He appointed lawyers to do the reporting because they did a better job than judges. Before the reports were published, the reporters checked with the judges. Bacon’s scheme continued Coke’s reports up to 1619 when there was a hiatus in reporting until 1621.
This presentation outlines the origins of the nominate reporters and our own systems of law reporting. But many of them are still in manuscript form. As the summary of Professor Baker’s presentation states, “Law reporting was to remain a matter of private initiative until the end of the eighteenth century, and many of the best reports…have still not been published. Anyone seeking to trace the evolution of a legal doctrine or practice before about 1700 must regard manuscript reports as an essential recourse.”