and Human Happiness, the Law Dictionary, and a vast number of other books—is reputed to be the collector." The preface tells us that the cases not published before had been procured at considerable expense, and that some of them had been reported by Farresley, who, as we shall now see, was one of the contributors to the Modern Reports. 4 The The history of the Modern Reports2 is very curious. The series, as will be seen from the Table, is made up of numbers of detached, and, for the most part, anonymous volumes, which, in the course of the eighteenth century, were gradually collected, edited, and published in the form in which we know them. first volume is assigned by some to one Anthony Colquit, and by others to Joseph Washington-a friend of Lord Somers and the author of several other works. The second has been assigned with some reason to the same Joseph Washington. The third, fourth, and fifth are anonymous; but the fifth was edited by Nelson, who appears to claim, without warrant as it would seem, that he had also collected the other four parts. The sixth volume is anonymous. The seventh is collected and edited by Thomas Farresley. The eighth and ninth are anonymous; and the tenth is by Lucas-a barrister who quitted the profession of the law for that of the church.9 The eleventh is anonymous; and the twelfth has been conjectured, on somewhat slender grounds, to be the work of some judge-possibly Sir Robert 1 Wallace, the Reporters 398; see W. R. Bridgman, Legal Bibliography 165-173, for a list of his numerous works, the most famous of which was his Law Dictionary. 2 Wallace, op. cit. 347-390, from which the following account is taken. 3" The authorship of this volume is not clearly discovered. Bridgman (Legal Bibliography 216) states that the author is said to be Anthony Colquit, by whose name it is sometimes cited. . . . Thoresby's History of Leeds attributes the authorship to Joseph Washington [who wrote an Abridgment of the statutes of William and Mary, Term Catalogues ii 523, 590], a collateral ancestor of the General, while Mr. Nelson, the editor of 5th Modern, seems to claim for himself all the merit which the publication confers," Wallace, op. cit. 356-357 4 Ibid 356 n. 3. 5 "Second Modern is prepared by some one who signs himself J. W., and who appears, from a fine, bold, and dignified epistle to Lord Somers, to have been an advocate of constitutional liberty, and on terms of more than mere personal acquaintance with Lord Somers himself"; it is therefore suggested that it is this volume that belongs to Washington, ibid 365. But it appears from the Term Catalogues ii 523, 590 that he must have died between 1694 and 1696; and, as the volume did not appear till 1698, it is possible that it may have been finally edited by Nelson, see next note. Ibid 380; however, Mr. Wallace thinks, ibid, that possibly Nelson, though not the reporter of any of the five volumes, except possibly the fifth, "may have had an editorial supervision over all these volumes of Modern, giving to some more and to some less of his own labour and stupidity." 7 Ibid 382; to this volume Leach added 155 cases, part taken by a Mr. Wright, part by a barrister named Luke Benne, ibid. 8 Mr. Leach's edition of 9th Modern contains ninety cases in Chancery, from the roth to the 28th of George II., not found in any other edition, fifty-two of them particularized by Mr. Leach as never before printed," ibid 385. 10 Ibid 387. 9 lbid 386. He Eyre, C.J. It will be seen from the Table that various collected editions of these volumes were published from time to time. The standard edition is by Leach, who also edited Croke and Shower. His services were considerable. They are thus summarized by Mr. Wallace: 2 "He corrected the abstracts; so defective, in some cases, as to require entirely new ones. gave at the commencement of each term the names of the Judges, Solicitors and Attorneys-General; modernized the references, changing them from the old titles of Modern Cases in Law and Equity, Cases temp. Mac., Cases temp. Queen Anne, and Cases temp. Will. III., into the more convenient references to his own series, 8th, 9th, 10th, 11th, 12th Modern. He added many notes and references to the same cases elsewhere. To the 7th, 9th, and 11th volumes he made large supplementary additions of Reports, giving in all three hundred and eighty-one MS. cases, of which he states that one hundred and thirty-seven had never before appeared in print. He separated into better and chronological divisions some of the reports in old Modern. . . . To the first seven volumes and to the eleventh he added new indexes, and in the other volumes corrected the old ones." The only volume in which he failed to incorporate all that had appeared in previous editions is the eleventh. The Dublin edition of that volume, published in 1794, contains new cases, and improved reports of old cases not incorporated in Leach's edition, which are attributed to Thomas Lutwyche, the son of the judge and reporter. Naturally the reports contained in this miscellaneous series vary in merit. The first, second, sixth, ninth, tenth, and twelfth volumes are good. The third, fourth, fifth, and seventh are indifferent. The eighth and eleventh are bad.5 Of the named reports, which are second rate in character, the most conspicuous examples are those of Keble, Carter, and Comberbach. The main defect of Keble's reports is that he merely jottcd down what he heard from day to day in court, without attempting to collect into a single narrative the history of any one case. 1 Wallace, op. cit. 389; Hardwicke in Middleton v. Crofts (1736) Ridgway t. Hardwicke at p. 126, refers to a MS. report taken by Eyre, C.J.; but it is not clear that he was referring to 12 Modern; and, if it was, it would not follow that Eyre, C.J., wrote the rest of the volume; Mr. Wallace seems to think that it is clear that 12 Modern was written by a judge, citing p. 145, where a judgment is reported in the first person; but this is not conclusive, as the words are put into the mouth of Holt, C.J. 3 Ibid 387-388. 2 Op. cit. 353. The additions consist of a number of cases in Anne's reign, and accurately reported and improved versions of some of the older reports, ibid 387-388. 5 Ibid 355-356. "As to the cases I chose rather to present them as rudely as taken, with the particular times of debate and such number rolls thereof as I then had; than by a more methodical digestion to obscure the truth and certainty of the matter. And on consideration of the various accidents that happen from the beginning to the end of a case Hence it is necessary to look into several places for cases which extend over several days. He gives us, as Mr. Wallace says, materials for a report rather than a report. His industry was great; but he is essentially a reporter of the old discursive type, who contents himself with merely noting down the doings of the court. Hence it has been said that, though inaccurate, he is "a tolerable historian of the law."3 Carter's reports were discredited by the judges of his own day. Holt disowned, and Treby questioned, their authority. Comberbach, a recorder of Chester and one of the judges of North Wales," is generally regarded as inaccurate; but this is probably due to the fact that his son published these reports from notes of his father's, which were never intended by their author for the press." It is probable that other sets of reports owe their indifferent reputation to the same cause. Thus the third volume of Salkeld has never had the authority of the first two volumes, because it consists of scattered notes, made indeed by Salkeld, but not prepared by him for publication. It is possible that some of the cases in Vaughan were published from the loose notes of the late chief justice. The MS. of Freeman's reports was stolen by a servant, and published without the consent of the author's family.10 It is probable that Shower's King's Bench Reports are printed from a defective MS.11 9 Thus we can still trace in the reports of this period some of the same defects which are apparent in the reports of the preceding period. Moreover, there is some evidence that the operations of the licenser may occasionally have effected alterations in a report.12 I knew no better way to express it," Keble's reports, Pref.; cp. Wallace, op. cit. 315326 for some account of Keble and his other works, legal and otherwise; he was an ancestor of Keble of the Christian Year, and left in MS. reports of some four thousand sermons; besides, he produced editions of the statutes and many other law books. 1 Op. cit. 316. 2 Thus in I Keble 562-563 we have a report of Clarendon's speech to Sir R. Hyde when he was made chief justice of the King's Bench, and of Hyde's reply. 3 Per Burnet, J., Batchelor v. Bigg (1772) 3 Wils. at p. 330. 4 Wallace, op. cit. 328-329; Carter also wrote the Lex Custumaria. See the Pref. to his reports. 7 See Preface. Wallace, op. cit. 396. 8 Ibid; Wallace, op. cit. 399-400. 9 The Preface states that no directions were left for publication, but that, as the MS. had been lent and copied, it was thought best to publish it; cp. ibid 334-335. 10 Ibid 390. 11 Wallace, ibid at pp. 392-393, cites Umfreville who, speaking of a MS. in the Lansdown Collection, says, "This MS. greatly controls the printed Shower, and contains many good cases not printed, and seems to be his regulated collection of cases, prepared, as I conceive by himself, and methodized from his note-book, with a view to the press. But his papers after his death, falling into the hands of a book-seller, he, causa lucri, at different times printed his general collection, without due consideration had of those selected cases, which were the only cases, I conceive, Sir Bartholemew ever intended for the press." 12 Burnet, Life of Hale (ed. 1682) 185-187, says that one reason why Hale refused to allow his MSS. to be published was that the licenser had interfered with the text of But the errors in these reports are not so serious as the errors in the older reports. In the first place, as we approach more closely to our modern law, the errors are more easily detected. In the second place, many of these reports have been edited with some Mr. Wallace, in a passage already cited,1 has described the services which Leach did for the series of Modern Reports. we have seen, Leach also edited Croke's reports, and Shower's King's Bench Reports. Similarly Freeman's Common Law Reports were edited in 1826 by Smirke, and his Chancery Cases in 1823 by Hovendon. In the third place, the errors in these reports can often be corrected by the more accurate versions of the same case contained in one or more of the better reports of this period. (ii) The improved character of the reports of this period. The majority of the reports of this period are free from the serious defects which marked the reports of the preceding period. They are accurate reports taken by competent, and, in many cases, distinguished men; and the same process of editing, which has improved some of the inferior reports of this period, has added very considerably to their value. It is true that some of them were not prepared by their authors for the press. But they often seem to have been printed from full and accurate notes; and, in many cases, these reports were both prepared by their authors for the press, and published by them. These characteristics of the majority of the reporters will appear from a rapid survey of the list. Firstly, I shall deal with the reporters who were judges of some one of the common law courts; secondly, with those who were not; and thirdly, with the most famous of all the reports of this period-those made by Saunders. (1) Bridgman's reports were written by a man who had held the offices of chief baron of the Exchequer (1660), chief justice of the Common Pleas (1660), and lord keeper (1667-1672); and, though not published till 1823, the MS. was known to the profession, and approved by such authorities as Hale and Holt. Sir Thomas Raymond held the office of baron of the Exchequer in 1679, judge of the Common Pleas in 1680, and judge of the 5 some reports published by a friend of his; but naturally, there is more reason to suspect this influence in reports of trials with a political interest than in reports of cases which turned solely on points of law; Arber, the Term Catologues, Pref. ii. 2 Ibid. 1 Above 557. Wallace, op. cit. 391. 4 For Bridgman see above 537-538. Wallace, op. cit. 301-302; it would appear that he took reports in the K.B. and Exch. in the reign of Charles I., which have not been published, ibid 302; Holt, C.J., in Gidley v. Williams (1701) 1 Ld. Raym. at p. 636, alludes to other MS. reports in his possession. King's Bench in 1680-1683.1 His more famous son, Lord Raymond, held the posts of solicitor-general (1710), and attorneygeneral (1720), and rose to be chief justice of the King's Bench (1725-1733). Both sets of reports have always had a good reputation. Lord Raymond, it is true, did not profess to have taken all the reports in his collection; and he acknowledges the receipt of cases taken by many other persons. But no doubt he satisfied himself of their accuracy before he used them. The larger number of his reports were taken while Holt was on the bench, and in them will be found the best accounts of Holt's judicial achievements. Levinz was attorney-general in 1679, and was made a judge of the Common Pleas in 1681. Though inclined to royalist views, he was too timid to be altogether satisfactory to his employers. He refused to accept responsibility for the proclamation against tumultuous petitions, and named Francis North to the House of Commons as its author, for which Roger North blames him-perhaps too severely. But he was too good a lawyer to be able to please James; and he was dismissed, because his views upon the dispensing powers and the enforcement of martial law were not to the king's liking. He returned to the bar and his practice as a pleader, for which he was eminently well fitted. He left a book of entries as well as his reports; and the latter were thought so well of that they were translated by Salkeld, and published by him in French and English." 8 7 5 Kelyng 10 was essentially a criminal lawyer and an ardent royalist. We have seen that, as chief justice of the King's Bench, he got into trouble with the House of Commons for fining and imprisoning jurors; but he was praised by Sir Thomas Raymond, and Holt thought it worth while to publish his reports, and to add to them three other reports taken by himself." The book did not contain all the cases in Kelyng's MS. These were not published 1 Foss, Judges vii 158-159; the only tale to his discredit is told by North, Lives i 167-168, and is to the effect that by his " passive behaviour" he allowed two women to be convicted of witchcraft on the usual ridiculous evidence. 2 Wallace, op. cit. 304, 401-402. 3 The title of the book is "Reports of Cases taken and collected by Lord Raymond"; and "he acknowledges cases taken by Mr. Place, Mr. Nott, Mr. Mather, Mr. Daly (or Doyley), Mr. Salkheld, Mr Jacob, Mr. Shelley, Mr. Northey, Mr. Lutwyche, Mr. Cheshyre, Mr. Thornhill, Mr. Peire Williams, Baron Bury, and Mr. Pengelly," Wallace, op. cit. 402-403. 4 Ibid 403. 5 Lives of the Norths i 229 and n. I. 6 Foss, Judges vii 252. 8" Sir Creswell Leuins came not to the bar the next day (after his dismissal), which was the last day of the tearme, but he came and practised the day after at Nisi Prius in Westminster Hall, and is not likely, 'tis thought, to loose by the change,' Bramston's Autobiography (C.S.) 221; he notes his own dismissal in his reports, 3 Lev. 257. "Wallace, op. cit. 314-315. 10 Foss, Judges vii 137-140. |