A Brief History of Anglo-American Case Reporting, 1272-1885
virtual exhibitdaniel r. coquillette rare book room - boston college law library
This virtual exhibit uses materials from the Boston College Law Library’s Daniel R. Coquillette Rare Book Room to illustrate a brief history of English and American case reporting. It was created by Karen Beck, Curator of Rare Books. Some of the text was drawn from Patti J. Ogden and Thomas A. Woxland, “Landmarks in American Legal Publishing: An Exhibit” (1990).
Year Book of Edward III (London: Robert Redman, 1534)
The Year Books were the form in which English court decisions were reported from 1272 to 1535. They were originally compiled in manuscript by law students who sat in the back of the courtroom and took notes on the proceedings. The students circulated and copied their notes, which were printed and distributed beginning around 1480, not long after the invention of the printing press. The printing of the Year Books made it much easier for lawyers to find cases on specific issues and to cite those cases in court, just as they do today. The Year Books were probably also used to train novice lawyers, as casebooks do today.
The Year Books are written in Law French, the official language of the law in England at that time. They are called Year Books because the cases were arranged by regnal year, or the year of a particular monarch’s reign. For example, Edward III reigned for 50 years, from 1327-1377. This Year Book was printed in 1534 from a manuscript dated 1366, the 39th year of King Edward III’s reign. Within each year, cases were arranged by term of court, and within each volume cases were arranged chronologically just like now. There were four terms: Trinity (spring, or Easter), Michaelmas (fall), Hilary (winter), and Paschal.
On the first page (shown here) you can see that these cases were reported in the 39th year of Edward III’s reign (“Anno xxxix E. Tercii”) during Hilary Term (“de termino Hillarii”). The printed notations in the margins (“Jugement,” “Variance,” “Fyne”) allow the reader to quickly determine the subject matter of the case – similar to today’s Headnotes.
This Year Book is one of the oldest printed items in the library’s collection, and one of several Year Books we own. It is a gift from Daniel R. Coquillette.
NOMINATIVE CASE REPORTERS
Edmund Plowden, Les Commentaries ou Reports (London: William Rawlins et al, 1684)
The next stage in the evolution of case reporting was the appearance of nominative reporters. Although many students and lawyers kept informal notes on the legal proceedings they attended, Edmund Plowden (1518-1585) is recognized as the first reporter of English law. His REPORTS, and others like them, are called “nominative” reports because they are named after the person who wrote or edited them.
Like the anonymous Year Book authors, Plowden, too, kept notes on cases for his own use. He only reluctantly published his notes after others distributed illicit copies of them. In his REPORTS he recorded the pleadings, the arguments of counsel and the judgment. He also added very brief comments of his own but was careful to separate his observations from the opinion of the court.
Plowden first published his REPORTS in 1571. The copy shown here was published more than a century later. It is a gift from Hon. Elijah Adlow.
Les Reports de Edward Coke. (London: Thomas Wight, 1600)
Sir Edward Coke’s (1552-1634) REPORTS were the most famous of the early nominative reporters. Like Plowden, Coke’s original goal was simply to keep notes of cases for his own use. Shown here is the very earliest edition of Coke’s REPORTS, published in 1600, opened to its magnificently engraved title page. Coke issued twelve volumes of reports between 1600 and 1616, and his output doubled the total number of reporter volumes in England!
In the early stages of case reporting there was no set format for case reports as there is today. Instead, each reporter devised his own methods. Unlike Plowden’s economical style, Coke added elaborate commentary to his reports, sometimes changing his account of the proceedings to reflect more favorably upon him (he was a sitting judge during part of this time). Occasionally Coke even went so far as to change the outcome of the case – cannily realizing that the person who records history is able to shape it.
Nevertheless, Coke’s REPORTS were so highly acclaimed that even Coke’s bitter rival Francis Bacon admitted that until Coke’s REPORTS came along, the law “had been almost like a ship without ballast.” Coke’s REPORTS whet the bar’s appetite for more published case reports and led to the development of modern case reporting in two ways: after Coke’s REPORTS were published, lawyers began to cite authorities in court with greater frequency, and his REPORTS served as a model for future reports and reporters, leading to greater consistency in style and form.
The Prefaces to the REPORTS were written in English and Latin; the main text is written mainly in Law French, although some cases or portions of cases appear in English or Latin.
Gift of Daniel R. Coquillette.
Ephraim Kirby, Reports of Cases Adjudged in the Superior Court of the State of Connecticut, from the Year 1785, to May 1788. (Litchfield, Conn.: Collier & Adam, 1789)
Ephraim Kirby was probably the first American reporter of cases, a distinction he achieved by accident. In 1785, the Connecticut Legislature passed a law that required superior court judges to provide written reasons for their decisions. However, the legislature did not provide any funding for the publication of these decisions. It took several years before someone could be found to undertake the effort. Like the earlier case reporters, Kirby’s REPORTS were based upon the notes he took for his own use, which he was eventually prevailed upon to expand and publish. Very shortly after Connecticut’s ground-breaking effort, Pennsylvania and other states followed suit and issued their own state reports.
In the second image above, you can see that an early owner of this volume wrote in the margin that the case shown here, Hawley against Castle, 1 Kirby 218 (1787), had been overruled by the case reported in Volume 1 of Day’s Reports at page 195 (1804). The invention of SHEPARDS CITATIONS in 1873 saved later generations of lawyers from this tedious task.
Gift of Kathryn Preyer.
OFFICIAL REPORTS AND THEIR REPORTERS
Reports of Cases Argued and Determined in the Supreme Judicial Court, in the Commonwealth of Massachusetts … vol. II. (Newburyport, Mass.: Edward Little & Co., 1811)
As quickly as nominative case reporters blossomed in America, they began their slow decline. The first step took place in 1804 when the office of official reporter was created in Massachusetts. The Massachusetts legislature was the first to enact a statute providing for a reporter of decisions for the state’s Supreme Judicial Court. New York did so a month later. New York was the first state to appoint a reporter, George Caines, and to publish a volume of official reports.
With the advent of official reporters for federal and state jurisdictions, opinion-writing became more standardized. The people appointed to serve as reporters were often anonymous, they relied upon the judge’s written opinion, and added little commentary of their own. Eventually, they no longer even sat in the courtroom, but simply prepared a syllabus, or summary, of each case that was printed at the case’s beginning, just as in modern case reports today.
For quite some time, nominative reporters overlapped with the official reports. You can see this by looking at early case citations. For example, this volume is volume 2 of the MASSACHUSETTS REPORTS, but it is the first volume that was reported by Dudley Atkins Tyng. So you may see parallel citations that look like this: Benson v. Swift, 2 Mass. (1 Tyng) 50 (1806).
The move from case reports recorded by an individual acting upon his own initiative to cases reported by an officially appointed source was crystallized in the case Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). Henry Wheaton, an acclaimed reporter for twelve volumes of United States Supreme Court decisions (volumes 14-25 of U.S. REPORTS) sued Richard Peters, his successor as reporter of decisions (volumes 26-41 of U.S. REPORTS). Peters published a “condensed” version of all the Supreme Court reports, including Wheaton’s, which sold for one-fifth the cost of the full set. This cut deeply into Wheaton’s profits, and so he sued Peters for infringing his copyright in the reports. Daniel Webster argued on behalf of Wheaton before the Supreme Court. Finding no infringement, the Court held unanimously that “no reporter has or can have any copyright in the written opinions of this court.”
MODERN CASE REPORTING
Commercial case reporters arose in the nineteenth century out of a need for timely case reporting. Often, the official reporters were published too slowly – sometimes two to four years after the cases were decided. John West, the creator of West Publishing’s National Reporter System, observed that he would not have developed his commercial reporters if the official state publishers had been properly doing their jobs.
Two types of commercial case reporters evolved: selective and comprehensive.
Selective case reporting developed in response to exponential growth in the number of reported cases in the nineteenth century. The growth of commerce and industry, and later the railways, created whole new areas of law and spawned tremendous litigation. For example, in 1810 there were only 18 volumes of American case reports. By 1840 there were 545 volumes, and by 1848 there were nearly 800. By 1885, a comprehensive law library held 3,800 volumes of American reports.
Lawyers needed a way to separate the wheat from the chaff, and publisher Bancroft-Whitney responded with THE AMERICAN REPORTS. This series contained “important” cases from the state supreme courts for the period 1869-1887. Similar works appeared during this time, published by Bancroft-Whitney and Lawyers Co-operative Publishing Company. The two companies eventually merged in 1919 and the new company created the AMERICAN LAW REPORTS, still familiar to us today.
Meanwhile, in response to complaints from local attorneys, John B. West of Minnesota had set about creating an up-to-date source of court reports. His first publication, THE SYLLABI, was a weekly 8-page newspaper that contained “prompt and reliable intelligence as to the various questions adjudicated by the Minnesota Courts at a date long prior to the publication of the State Reports.” Instantly popular from the moment it appeared in 1876, West replaced his little newspaper only six months later with the NORTH-WESTERN REPORTER. In 1879, the NORTH-WESTERN REPORTER assumed its current form, reporting the full text of all supreme court decisions from Iowa, Michigan, Minnesota, Nebraska, Wisconsin and the Dakota Territory. In 1885, West published four new regional reporters that, together with the NORTH-WESTERN REPORTER, covered the entire nation. Unlike the selective reporters, West attempted to be comprehensive and include every decision somewhere in its network of case reporters.