much so, as in one instance at least to call for the interposition of Parliament. How frequently has it happened, that upon the repeal of certain laws, and the enactment of others of a similar character, but amended and altered, proceedings set on foot before the commencement of the new Acts have been involved in the repeal, and either misdemeanours have escaped punishment, or private interests have sustained injury!

It is, however, no part of our undertaking to suggest what should be done, but rather to limit ourselves to the progress and conduct of the Society.

We have merely remarked, that the interference of this Society in taking up the questions of parliamentary usage and of legislation in general, can hardly be deemed uncalled for in the annals of amendment.

ART. V.-LAW REPORTING REFORM.

We are now enabled to give the proposed Report of the Committee on this subject.

SOCIETY FOR PROMOTING THE AMENDMENT OF
THE LAW.

SPECIAL COMMITTEE ON LAW REPORTING.

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

REPORT.

1

1. In the year 1849 a Committee on Law Reporting was appointed by this Society, and in the Report 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 1 Printed, 10 L. R. p. 397.

such regulations at the present time are forcibly 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.

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

1 The ancient duties of the prothonotaries in taking down notes of the decided cases in Westminster Hall, and publishing them annually in the year books, are described by Sir William Blackstone. (Commentaries, vol. i. p. 71, 72.) Lord Bacon, when Attorney-General, proposed, in order to avoid the abuses which had crept into the system of law reporting, to revive the practice of appointing Official Reporters. See proposition touching the amending of the laws of England, Bacon's works, by Montagu, vol. v. p. 349. In 1617, when Bacon was Lord Chancellor, he procured letters patent to be issued for the appointment of Official Reporters by the Crown. The following is a copy of these letters patent, taken from Rymer's Fœdera, vol. xvii. p. 27. :

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James, by the grace of God, King of England, Scotland, Fraunce and Ireland, defender of the faith, &c., to our right trustie and right well-beloved counsellor Sir Francis Bacon, Knight, our Keeper of our Great Seal of England; and to our trustie and right well-beloved counsellor Sir Julius Cesar, Knight, Maister of our Rolles, greeting.

"Whereas we have made our ordynaunce for the constituting of Reporters of

present time in the United States of America', where the office of State Reporter is regulated by general law.2

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. 3.)

the Lawe, and passed the same under our Great Seale of England, in forme following:

"It hath well appeared howe careful wee have beene for the preserving and maintayning of the Lawes of this our Realme of England by this, that wee neither have introduced or admitted any innovations, neither have wee for our part suffered any neglecte or delaye in the administration of them; but, by often consultations and conferences with our judges of the land, farre more frequente then in anye former time, and by countenancing them in bearing uppe their authoritie in the eyes of our people, we have given lief and vigour to our said Laws, and the execution of them.

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Nevertheles, our princelie care ceaseth not heere, but we are further desirous that the effects and fruits thereof may be derived unto posterity in such sort as that in our time there may be built by the true knowledge of our Lawes (as it were) a good and durable wall about the Rights of our Crowne and People.

"Wherefore, fynding that the Common Lawe of England is principallie declared by the grave Resolutions and Arrests of the Reverend and Learned Judges upon the cases that come before them from tyme to tyme, and that the doubts and questions likewise which arrise uppon the exposition of Statute Lawe are by the same means cleared and ruled, we doe, in our royale judgment, perceive and conclude that nothing canne more conduce to the good of our Lawes then the keeping of that fountaine cleere, without trouble or mixture.

"In regard whereof we have thought good to revive and renew the auncient custom of appointing some grave and lerned lawyers to attende our courts at Westminster, for the reporting of the Judgments and Resolutions of Lawe which there shall passe from time to time, whose dutie wee intende to be to report (though compendiousle, yet truly and narrativelie,) that which passeth according to the auncient manner, in such sort as that the principall case adjudged may be discerned from any by-cases, and the pointe adjudged upon debates maie be likewise distinguished from that which is but an admittaunce, and which of the by-cases are put by the Judges as their opinions, and which are put only by the Serjeaunts or Pleaders on their part, soe that authorities of unequal natures be not confounded, but everie thing maye appeare in the true waight.

"Wherefore wee doe ordaine and establishe, for us, our heires and successors, that, for all times hereafter, there shall be twoe persons, by us, our heires and successors, to be named and appointed, which shall be Reporters of the Law, and shall divide their labours betwixt themselves as they think good,

4. Bearing in mind always that the exposition of the general principles 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 at Westminster Hall in practice, at least, equals that of an act of the Supreme Legislature. 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 Legis

and shall alwaies attend the Judges of such courts where the judgments or resolutions shall passe with their reports, to the ende they maie be considered of and reviewed by the said Judges before they be published, and likewise that they be presented to our Chauncellor or Keeper for the time being, that wee maie bee acquainted therewith, and such of our councell as wee shall thinke conveniente.

"And wee do ordaine, constitute, and graunte for us, our heires and successors, that either of the said persons shall have and receive the yearlie fee of one hundred pounds, not doubtinge, alsoe, but the Judges of all our courts will countenance and respect the said Reporters uppon all occasions, as men imployed in a service tending so greatlie to the honour and preservation of the Lawes of our realme, and founded by our Royall Constitution.

"Theis are, therefore, to will and require you to cause the same to be published and inrolled within our Courte of Chauncerie, and withall to take order, that as often as there shal be anie occasion of arguments in our said courts, to appoint our said Reporters a convenient place for the taking and writing of the

same.

"Given under our Privie Seale, at our Pallace of Westminster, the Four and Twentieth Daie of October, in the Fifteenth Year of our Reign of England, Fraunce and Ireland, and of Scotland, the One and Fiftieth."

lature'; 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 shown how the disuse of the ancient practice which prevailed in Westminster Hall, of the Law expounded by the Judges being published officially in the Year-Books, and subsequently by Reporters expressly authorised 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 authorised 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 century2,- 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 lawyers are every day exposed to the inconvenience of having cited, by way of authority, notes of

1 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.

2 In the valuable work published by Lord St. Leonard's 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 administered by the House of Lords, p. iv.

West's Reports of Lord Hardwick's decisions from 1736 to 1739 were first published in 1828. Ridgway's Reports of Lord Hardwick'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.