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Bentham, Bacon and the Movement for the Reform of English Law Reporting

Published online by Cambridge University Press:  26 January 2009

Roderick Munday
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Extract

The disordered state of English law reporting has for long been a favoured theme of writers on the common law. The volume of printed case law, the casual nature of its publication and its variable quality have all been frequently criticized. If earlier centuries had been largely content to express intermittent displeasure, in the nineteenth century concrete solutions were found, the obvious product of this bid to achieve a rational system of law reporting being the Incorporated Council of Law Reporting and its authoritative series of Law Reports. But if ultimately reform of the system was only realized once the profession seized the initiative in the middle of the nineteenth century, it would be an error to suppose that schemes for reform had not been conceived in earlier times. After all, only by a miracle could anything as blatantly haphazard as the quality of law reporting have escaped the strictures of major reformers.

Type
Research Article
Information
Utilitas , Volume 4 , Issue 2 , November 1992 , pp. 299 - 316
Copyright
Copyright © Cambridge University Press 1992

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References

1 The history of the creation of this body is fully treated in Daniel, W. T. S.'s The History and Origin of the Law Reports, London, 1884.Google Scholar For a thumbnail résumé of this project, see text accompanying notes 75–80 below.

2 Bentham, of course, was not alone in complaining at the inefficiencies of the reporters. In his Journal, on 17 January 1775, James Boswell enters the fact that ‘at the anniversary meeting of the Faculty of Advocates I intended to make a motion that if the Collector of Decisions did not publish annually he should forfeit his office. I yesterday sent notice of my intention to Mr. Wallace, the Collector. He was very much offended, and told me he did not expect [it] from me’. Despite remonstrations, Boswell made his point at the meeting. The Dean of Faculty made soothing noises, but Wallace's friends ‘got the matter slurred over at this time’. In the event, nothing came of this initiative: Wallace's decisions for 1772–74 were published in 1784 and those for 1775 appeared posthumously in 1786 (Boswell: The Ominous Years 1774–1776, ed. Ryskamp, C. and Pottle, F. A., London, 1963, p. 56).Google Scholar

3 Of Laws in General, ed. Hart, H. L. A., London, 1970 (The Collected Works of Jeremy Bentham), p. 187.Google Scholar

4 Ibid., p. 188.

5 Ibid.

8 A Comment on the Commentaries and A Fragment on Government, ed. Burns, J. H. and Hart, H. L. A., London, 1977 (CW), p. 119.Google Scholar

7 First Principles Preparatory to Constitutional Code, ed. Schofield, P., Oxford, 1989 (CW), p. 184.Google Scholar

8 Of Laws in General (CW), p. 189.Google Scholar There is little question that Bentham's criticisms on this point were well founded. In Chancery cases, in particular, there was a dearth of good reports and it was not at all uncommon for the courts to refer to manuscript reports or even the Registrar's Books, for what they were worth: Winder, ‘Precedent in Equity’, Law Quarterly Review, lvii (1941), 249.Google Scholar It might be mentioned that, in examining the inclusion of Irish annotations, Ridgway's Reports (1794)Google Scholar, notes, ‘It is to be regretted, that while the Irish Bench is adorned with splendid talents and profound erudition, their adjudications are suffered to perish in oblivion’ (p. vii).

9 See notably Lieberman, D., The Province of Legislation Determined. Legal Theory in Eighteenth-Century Britain, Cambridge, 1989, esp. Part IV.CrossRefGoogle Scholar

10 Comment/Fragment (CW), p. 499.Google Scholar

11 The relevant manuscripts in the collection held by University College London are UC xcvi. 244–5, clxix. 1 and lxxa. 117–44.Google Scholar

12 See ‘Bentham's Digest’, Bentham Newsletter, No. 9 (06 1985), 7; Lieberman, chapter 12.Google Scholar

13 ‘Bentham's Digest’, p. 7.Google Scholar

14 See text accompanying notes 68–70, below.

15 Listed in UC clxix. 1.Google Scholar

16 Bentham frequently employs this image. The most important chasm or ‘void’, in his view, was reports of equity cases which, he noted, were entirely lacking from 1755 to the date of writing (probably 1775 or 1776).

17 There is perhaps some passing resemblance between Bentham's scheme and Black-stone's practically contemporary lament that the series of Year Books, that jumbled series of reports and notes that mysteriously came to an abrupt end in 1535, ‘this beneficial custom’, should not have been continued to the present day. Their motivation, too, was broadly similar. But Blackstone's dewey-eyed fantasy of a golden age of reporting, with publicly-funded reporters (prothonotaries, no less) publishing reports annually, can be discounted: Blackstone, W., Commentaries on the Laws of England, 4 vols., London, 1765–1769, i. 72.Google Scholar

18 ‘That it will be published, and that by authority: well or ill taken, yes, I will repeat it, well or ill taken is a question comparatively of small importance’: UC lxxa. 117.Google Scholar

19 UC lxxa. 118.Google Scholar

20 UC lxxa. 120.Google Scholar Bentham was fond of citing the laws of Caligula in this context, that were promulgated, but displayed on a post too high for the populace to read: UC lxxa. 142.Google Scholar

21 This is not of course to contend that they are of no assistance. To take the case of William Peere Williams' Reports of Lord Hardwicke's decisions, originally published by the reporter's eponymous son, Samuel Compton Cox reveals in his Preface to the Fourth edition that he authenticated a number of the reported cases in the ‘Register's Books or other proceedings’ (p. v) owing to doubts having been expressed as to their correctness.

22 UC lxxa. 120.Google Scholar See also text accompanying note 52, below.

23 Ibid., 121.

24 Ibid., 123.

25 Ibid., 124.

26 Ibid., 125.

27 Ibid.

28 To be entirely fair, the project is only in a rough state and gives every indication of being the product of intermittent rather than concerted labour. However, for reasons that will emerge in the next section, one can be reasonably confident that the major lines of the scheme had been firmly mapped out by Bentham.

29 UC lxxa. 126.Google Scholar

30 Ibid., 128.

31 Ibid. Bentham did however concede that ‘If it be such as to have no other than a direct influence (of which sort there must needs be very few if any) the point may as well be reserved to receive it's decision in an improved state of Jurisprudence’.

32 UC lxxa. 128 and 129.Google Scholar

33 UC lxxa. 128.Google Scholar As Milsom observes, ‘Crime has never been the business of lawyers’: Historical Foundations of the Common Law, London, 1969, p. 374.Google Scholar Even in the Year Books, it is notable how few criminal cases are reported: see Post, J. B., ‘Placita Corone’, Legal Record and Historical Reality, ed. Watkin, Thomas G., London, 1989, p. 1.Google Scholar Bentham's optimistic timetable for the Criminal law, therefore, may not have been entirely unreasonable.

34 UC lxxa. 129. To avoid partiality, Bentham proposed that disappointed contributors of notes of cases should retain the right to publish their own versions, although these could not be cited before the courts.Google Scholar

36 UC lxxa. 130.Google Scholar At this date the profession was much concerned with the authenticity of the reports. Sir Thomas Parker, for instance, who published his Reports of revenue cases in 1776, the probable date of Bentham's manuscript, was anxious to reassure his readers that the cases he reported were either those in whose determination he had enjoyed a principal share or taken from ‘authentick Manuscripts’ (p. iii). In Ridgway's Reports, too, published in 1794, the compiler was anxious to authenticate the manuscript from which these decisions of Lord Hardwicke were extracted. The reader is informed that the manuscript belonged originally to Joshua Davies, ‘a Barrister of eminence, as remarkable for his integrity, as for deep research in his profession’ (p. vi), was sold to the then Attorney-General who made exclusive use of it but eventually determined that other barristers, too, might find it of utility. Ridgway remarks, ‘Anonymous Reports have ever been received with the most extreme caution; the present work must encounter that disadvantage, as no account can be given of its Author; of whose merit, however, a very tolerable opinion may be formed, by comparing such of the following cases as are to be found in contemporary writers, with their reports of them.’

36 UC lxxa. 130.Google Scholar

37 UC lxxa. 131.Google Scholar

38 Ibid.

39 Ibid., 133.

40 Ibid.

41 Bentham's view of the Masters in Chancery was of course justified. As the near-contemporary case of Shapland v. Smith (1780)Google Scholar, 1 Bro. C.C. 75 shows, the role of the Masters in court by the late eighteenth century was in obvious decline. Indeed, Lord Eldon L.C. in 1826 was to excuse them from attending at all save on one day per week. See Bennet, W. H., A Dissertation of Proceedings in the Master's Office, London, 1834, p. 2Google Scholar; The Memoirs of Sir John Rolt, London, 1939, pp. 205–6.Google Scholar

42 ‘The effects of this difficulty are to be seen in the works of almost every Reporter. Scarce any books of Reports but what contains many cases without a name. A multitude of cases for the same reason are wrong named’: UC lxxa. 134. Bentham's complaint is justified.Google Scholar

43 UC lxxa. 136.Google Scholar

44 UC xlvi. 244 (1772–1773).Google Scholar

46 UC lxxa. 142.Google Scholar

46 This would then permit other projects such as the ‘Oeconomical Law Charts’ — charts intended to let particular classes of tradesmen know what law governed their calling—and the publication of volumes of laws to be handed out to overseas visitors to Britain, informing them of the most important legal rules affecting them during their stay on these shores: see UC lxxa. 138–40.

47 See The Correspondence of Jeremy Bentham, vol. i., ed. Sprigge, T. L. S., London, 1968 (CW), p. 235.Google Scholar This is Lieberman's interpretation of the relevant passage (Lieberman, , p. 242Google Scholar); I read the letter somewhat differently and consider that Bentham was only intending to resume work on the Digest of statute law in 1775.

48 The manuscripts include a certain amount of gossip concerning reports of cases, as for example the annotation relating to the collection of unpublished reports of Lord Hardwicke's cases: UC lxvi. 245 (1772–1773).Google Scholar For a recent evaluation of Lord Hardwicke's use of case law, see Croft, Clyde, ‘Lord Hardwicke's Use of Precedent in Equity’, Legal Record and Historical Reality, ed. Watkin, Thomas G., London, 1989, p. 121.Google Scholar See also note 17, above.

49 Comment/Fragment (CW), p. 210.Google Scholar

50 UC lxxa. 132–3.Google Scholar In the Comment on the Commentaries, alluding to the fact that the reporter was publishing decisions without any licence to do so, Bentham refers to Burrow as ‘that illustrious criminal, whose history of the transactions of the King's Bench does so much honour to himself and to those Judges whom he:has treated with contempt’: see ibid., p. 193, note b. Bentham was not alone in recognizing Burrow's great merit as a reporter. Boswell notes in his Journal in 1768, ‘(Lord Mansfield) advised [me] to read Blackstone, and also Burrow's Reports’ (Boswell in Search of a Wife, ed. Brady, F. and Pottle, F. A., London, 1957, p. 186Google Scholar) and in 1772 we discover Burrow Vice-Président of the Club (Boswell for the Defence, ed. Wimsatt, W. K. and Pottle, F. A., London, 1960, p. 67).Google Scholar

51 Comment/Fragment (CW), p. 214, noted.Google Scholar

52 First, Bacon remarks that ‘had it not been for Sir Edward Cook's [sic] reports (which, though they may have errors, and some peremptory and extrajudicial resolutions, more than are warranted; yet they contain infinite good decisions, and rulings over cases) the law by this time had been almost like a ship without ballast; for that the cases of modern experience, are fled from those that are adjudged and ruled in former time’ (Works, vol. vi, p. 65Google Scholar). Later, he argues that his proposed treatise De Regulis Juris will be ‘like the ballast of a ship, to keep all upright and stable’ (The Proposition in Works, vol. vi, p. 70Google Scholar). Bentham's borrowing is much in evidence here.

53 See note 22 above.

54 Text accompanying note 27 above.

55 Of Judicature in The Essayes or Counsels, Civill and Morall, ed. Kiernan, M., Oxford, 1985, p. 165.Google Scholar

56 UC xxvii. 6Google Scholar, quoted in Harrison, Ross, Bentham, London, 1983, p. 12.Google Scholar

57 The Works of Francis Bacon, ed. Spedding, J., Ellis, R. L. and Heath, D. D., London, 1858, vol. v, pp. 103 et seq.Google Scholar

58 Works, vi. 63.Google Scholar As Bacon noted in The Advancement of Learning, ‘judgments are the anchors of laws, as laws are of the state’: Works, v. 103.Google Scholar

59 Ibid., 104.

60 Works, vi. 64.Google Scholar

61 Works, v. 104–5.Google Scholar

62 See note 9 above.

63 Works, vi. 67.Google Scholar

64 Ibid., 65.

65 Ibid., 68.

66 ‘The judgments nevertheless to be set down, every one in time as they are, but with a quotation or reference to the case where the point is argued at large; but if the case consist part of repetition, part of new matter, the repetition is only to be omitted’ (Works, vi. 69).Google Scholar

67 Ibid.

68 As John Ritchie, co-editor of A Digest of Cases Overruled, Approved or Otherwise Dealt with in the English and Other Courts, London, 1907Google Scholar—a work with Benthamite resonances, points out, it was small wonder that Bacon lamented the paucity of law reports, given that reporting of Chancery cases (Bacon presided over the Court of Chancery from 1617 to 1621) was still in its infancy, and some of the reports were ‘so meagre as to convey no very intelligible account of the cases to which they relate’: Reports of Cases decided by Francis Bacon in the High Court of Chancery, London, 1932, p. xvi.Google Scholar

69 This theme is also pursued in The Advancement of Learning: ‘Let the learned reporters be taken from the most learned counsel, and receive a liberal salary from the state. But let not the judges themselves meddle with the reports; lest from being too fond of their own opinions, and relying on their own authority, they exceed the province of a reporter’ (Works, vol. v, 104).Google Scholar

The notion of official law reporters was being pressed as late as the nineteenth century in the lectures of John Austin:

An objection is sometimes made to judiciary law, which is founded on an accident rather than inherent in its nature: that it is not attested by authoritative documents, but resides in the memory of the judges, or is attested by the disputable records of private reporters. This, however, is the effect of the legislators' negligence. It is clear that there might be authorised reporters, and that their reports might be made official evidence. The decisions of our courts, as recorded in the year books, were formerly official and authoritative evidence. And it was proposed by Lord Bacon to James the First, that this ancient practice should be renewed (Lectures in Jurisprudence, ed. Campbell, R., 2 vols., London, 1885, ii. 654).Google Scholar

Austin observed how, in some of the smaller German states, the absence of reporters leads to no-one's knowing what the law is, adding:

There is an approximation to this in certain cases in our own country: in local Courts, for instance, such as that of the Duchy of Lancaster. The peculiar law administered by these Courts dwells entirely in the memory of the registrar; that is, it exists somewhere, but is entirely what he chooses to make it in the particular case. And every one who frequents our Courts must have seen that occasionally, when the judge is at a standstill, he stoops down and whispers to the registrar of the Court, in whose Bewusstseyn, or consciousness, that portion of the law of the Court does really reside (Ibid., p. 655).

70 Works, vi. 70.Google Scholar

71 Ibid., 67.

72 Chrestomathia, ed. Smith, M. J. and Burston, W. H., Oxford, 1983 (CW), p. 160.Google Scholar

73 Ibid., p. 215. This theme is explored in Mack, M., Jeremy Bentham. An Odyssey of Ideas 1747–1792, London, 1962, pp. 129–41Google Scholar, and in Dinwiddy, J., ‘Bentham on Invention in Legislation’, Enlightenment and Dissent, No. 8 (1989), 32–3.Google Scholar

74 This facet of Bentham studies is treated in Dinwiddy, , pp. 26–7.Google Scholar

75 See generally, Daniel, note 1 above.

76 ‘Report of a Special Committee on the Law Reporting System’, Law Review, x (1849), 395Google Scholar, quoted in Daniel, , pp. 4–14.Google Scholar

77 Daniel, , p. 9.Google Scholar See text accompanying note 16 above.

78 Daniel, , p. 282.Google Scholar

79 Although technically incorrect, courts still sometimes refer to them as ‘official law reports’: Highlands Insurance Co. v. Continental Insurance Co., [1987], 1Google Scholar Lloyd's Rep. 109, 113 per Steyn J. Their citation is also preferred to that of other series: see Practice Note (Reports: Citation) [1991], 1 All E.R. 352.Google Scholar

80 See, e.g., Munday, R., ‘New Dimensions of Precedent’, Journal of the Society of Public Teachers of Law (New Series), xiv (1978), 201.Google Scholar