A5!r aiortifU Ham ^t\\xxxy\ SItbtary Cornell University Library KF 255.W19 1882 The reporters larranged ^nd charactertee 3 1924 024 518 130 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024518130 Angell, Bigelow, jBispham, I Bouvier, Brevard, Gheves, Cold well, Deady, Denio, JDessaussure, ' Devereux, fDillonf Duvall, Ewell, IGUIk Gilman J Ain'jell. "■ — Big'el-o (g hard). Bisp'hairi. Boo-veer'. Bre-vard'. Chev'ess. Cald-well'. iDee'dy. De-ny'o. ; ■ Des'saus-sure. tv Dev'er-o. Dil'lon. Du-vall'. Yew'el. 7G hardu ..»*«« . Gilmer, G hard Gilpin, ) ■ Hening, Hen'ing, Houek, Howk. Houston, Hows 'ton. Keyes, Kize, Lea, Lee. Leigh, Lee. Littell, Lit-tell'. McLean, Mac-lane'. Minot, My'nott. Rapalje. Rap'al-jay Schouler, Skool'er. Taney, Taw'ney. Wythe, With (th as in thong) Yeates, Yates. THE REPORTERS ARRANGED AND CHARACTERIZED WITH INCIDENTAL REMARKS By JOHN WILLIAM WALLACE iFoHttfi lEliftfon, He&tseti anlj lEnlargeti PUBLISHED VNDEB THE SUPEBINTEIIDENCE OF FRANKLIN FISKE HEARD '- " Many, Sir, they have committed false report " DOOBEBKY, Muck Ado About Xbthing, Act r. Sc. 1 BOSTON SOULE AND BUGBEE 1882. ^///6/s Entered according to Act of Congress, in the year 1882, by John William Wallace, In the Office of the Librarian of Congress, at Washington. Univeksitt Pkess: John Wilson and Son, Cambkidge. TO WILLIAM GREEN, OF CULPEPBR COUNTY, IN THE STATE OF riROINIA, ESQUIRE, WHO, AMIDST THE ENGROSSING INTERESTS OF AN ACTIVE AND DISTINGUISHED CAREER AT THE BAR, HAS PDRSUED, WITH A SUCCESS IJNATTAINED IN ENGLAND OR AMERICA, THE RECONDITE SEARCHES OF LEGAt, BIBLIOLOGY, SCfjta OTorft ta Inacti'beli, IN ACKNOWLEDGMENT OF THAT " COMMUNICATION IN STUDIES," WHICH FRANCIS BACON THOUGHT WORTHY OF BEING RECKONED OF KINDRED BOND WITH " HEAR ALLIANCE, AND STRAIT FRIENDSHIP AND SOCIETY." PREFACE TO THE FOURTH EDITION. The favor which the first three editions of this work received, led the author, on the appearance, A. D. 1855, of the last one, to suppose that a fourth edition might at some time perhaps be borne with. And in view of such a possi- bility, he made, up to the summer of 1857, considerable addi- tions to the then existing volume. Absence from the country for a considerable time from that date, and, after his return, his appointment in December Term, 1863, by the Supreme Court of the United States to be the Reporter of its Deci- sions, prevented much further work on the book, and his " Revise " was pretty much forgotten. On his retirement from office in 1876, after thirteen years of close labor and the issue of twenty-three large volumes of Reports, his dis- position to meddle further with printer's ink and proof-sheets was not strong. The multa inoommoda, too, which the poet tells us that advancing years bring with them, began to be felt ; among them a condition of the eyes which rendered any severe use of them a matter desirable for him to avoid. But Ms boob, if any new edition of it was to come forth as a publication of this day, needed a good deal to be done to it. New editions of some old Reporters had appeared since 1855. Some ancient manuscript rolls, too, had since been VI PEEFACE TO THE FOUKTH EDITION. printed ; and his lists — whether chronological or alpha- betical — of Reporters were, of course, a quarter of a century behind the times. Certain minor things also — among them the verification of the references in his new matter — re- quired to be seen to ; the whole, if receiving proper attention, needing an amount of labor and care which the author did not feel either inclined or able to give the subject. At this moment a generous friend appeared. Mr. Franklin Fiske Heard, of Boston, — well known to the Bar by his writings, including among them his contributions, through our law periodicals, to the bibliology of the Reports, and with whom the author had long been in correspondence on that topic, — learning the state of the case, kindly ofPered to superintend, at Boston, the publication of the Revise, and to supply such deficiencies in it as are above referred to. So gracious an offer was gratefully accepted, and the pres- ent volume is the result. J. W. WALLACE. Philadelphia, January, 1882. CONTENTS. PAQB Remarks upon the Value op Obsbevations conoben- INQ THE RbPOKTEES 1 The Common-Law Repokteks 59 The Usurpation 287 The Restoeation 301 The Chancebt Repoetees 457 The Ecclesiastical Repoetees 521 A Cheonological List op English Repoets aftee the Ameeican Revolution, A. D. 1776 525 A Cheonological List op Repoets in the Ieish Covets 547 A Cheonological List op Reports in the Scotch Courts 552 British Colonial Repoets 556 American Reports 561 Appendix 595 An Alphabetical Index to the Reporters .... 643 REMARKS UPON THE VALUE OF OBSERVATIONS CONCERNING THE REPORTERS. 1. In a science like the law, in which the decisions of each age are settled upon what it is supposed has been deter- mined in preceding ones, the canon of eepoets is a sub- ject of capital importance. The deference which is paid to precedent makes it important that what purports to be pre- cedent should be really so, and that the reliance which is believed to be given to beacons should not have been reposed upon false lights. "We have, up to this date, nearly fifty scores of different persons who have acted as reporters ; nearly all of them self-constituted and without having been subjected to any antecedent test of integrity, education, or general capacity. Besides this, it is known that many vol- umes bearing the names of eminent lawyers, and purporting to come from their pens, were not designed for the press, were first published generations after their authors' deaths, and from MSS. known not to have been original. It is therefore quite to be expected that these records should possess various grades of merit in almost everything which belongs to report- ing ; and we find accordingly that the judicial writings fre- quently contain remarks upon their authenticity, genuineness, and other characteristics. Such remarks, being casual, are scattered through many books ; and it is matter of some sur- prise that in England, at least, no systematic work on the subject has appeared. Nearly a century ago, Sir Michael 1 2 PRELIMINARY REMARKS. Foster declared that these " hasty and indigested Keports " had " become the burden and scandal of the profession ; " ^ and the want of accuracy of many of them has been noted both before and since. To England alone, Americans would naturally look for the fullest and best essays on such a sub- ject. The knowledge requisite for the task belongs to a sort of which we in this country have supposed that there is a good deal among the men of the Temples, or other Inns, and little anywhere else ; a kind of hereditary, traditional knowl- edge, descending a good deal from generation to generation, with the dust upon their ancient repositories, and partaking too much of the character of an heirloom to pass to us by cis-Atlantic severance. Yet in England the ouly professed work on the subject is The Legal Bibliography of Bridgman, a commonplace performance ; meagre in all except the entries of, time and place, and one in which the reporters hold a grade, at best, but subordinate to text-books. Something is contained, it is true, in Mr. Ram's book on the science of Legal Judgment; yet even there the whole subject is dis- posed of in a half-dozen pages. This, with a few com- ments in the sale catalogues of Clarke, Brooke, Worrall; and a short note^ in Gresley upon Equity Evidence, sums up, so far as I know, the services in this line of the Bar of England. Our own country it is which has made the best essays in this line, though these, too, are imperfect. A good view, so far as it goes, is given in the Commentaries of Chancellor Kent ; ^ but it is general : ^ an occasional note is found in the Cases Overruled, of Dr. Greenleaf ; and there are two short, though valuable articles, in one of our law journals,^ — the former of them by the late Mr. Justice Metcalf, of the Supreme Judicial 1 Letter to Lord Chancellor * [And the same remark applies Hardwicke, Dodson's Life of Fos- to the account of the English Chan- ter, 48; and see Preface to the 1st eery Reporters in Goldsmith's Eq., edition of Foster's Reports, Ixiv. pp. 42-58, 6th ed.] 2 2d edition, p. 402. « Vols. viii. and xiL American ^ Vol. i. Lect. xxi. Jurist. PEBLIMINAKY EBMARKS. Court of Massachusetts, the latter by the well-known Charles Sumner; and these, with what is found in Mr. Hoffman's Legal Study,! in " The First Book of the Law," by Mr. Bishop, and in the Legal Bibliography of Mr. Marvin, of California, published after the second edition of this tract appeared, pre- sents the contributions of America, and completes the circle of all that is known to me upon the subject.^ My own tract, mere jottings from memory or casual reading, aspires to no 1 Edition of 1817, pp. 357-359. 2 In addition to the great and various contributions to all parts of this work, which I have received from the friend whose name appears in the inscription, and after him from his friend, Mr. R. M. Heterick, of the Virginia bar, a gentleman of great and accurate learning, I have to acknowledge obligations to Mr. Justice Stroud, of the District Court of Philadelphia, to Mr. E. D. Ingraham, to Mr. T. I. Whar- ton, to Mr. A. I. Fish, to my brother, the late Mr. Horace Bin- ney Wallace, of the Philadelphia bar, to Mr. Franklin Fiske Heard, of the Boston bar, and to Mr. H. N. Beach, of the bar of New York; all of whom have occasionally given me information, of which I have availed myself without other acknowledgment than this. I am credibly informed that a MS. on the matter of this volume, by John Kinsey, successively Attorney- General and Chief Justice of Penn- sylvania before the Eevolution, enlarged and brought down to more modern times by his son, James Kinsey, Chief Justice of New Jer- sey, was in existence in this city long since the beginning of this century. Independently of my in- formant's statement, the fact is not improbable. The law library of the Pennsylvania Chief Justice seems to have been one of the most complete of his day; and his books, if one may judge from the double auto- graphs upon their titles, came to his son more undispersed than is usual in our land of gavelkind in- heritance. Both gentlemen would appear to have been something touched with Mr. Surface's elegant taste in the matter of their books: many of which are tall paper copies, unusually nice and complete, and marked by those denotements, so familiar to the bibliophiles of Italy, as, " Esemplari con segni di barbe ; " "quasi intonsi;" " marginossis- simi ;" " niiidissimi, " &c . , — which so ravish the eye of bibliograph- ical freemasonry, and bind to- gether in one fellowship, throughout every age and land, the elect of this sublimest science. Should any pos- sessor of the MS., which I have spoken of, and which could not but be both curious and valuable, happen to stumble on this note, I would take it kindly if, under the comity of our mulucB vicissitudinis obteniu, he would inform me of the interesting posses- 4 PEELIMINAEY EEMABKS. character beyond that of a contribution; but, in common with what is found elsewhere, may serve to show that a good many observations have been made from time to time on the different reporters. 2. It is, however, the misfortune of the subject, that while we have these expressions of opinion, they are often quite general, mostly but casual, and are seldom accompanied by the reasons on which they are founded, or afford any light by which they may be examined. An inquiry arises then at once as to their value, and the sort of interpretation which should be given to them. 3. In regard to notices of a commendatory character, little need be said. Presumption, to some extent, is usually in favor of a reporter; and favorable notice only strengthens, therefore, what, in a measure, might be presumed without it. My remarks have more reference to criticisms of an opposite sort. Of these we may say that : — I. THEY CANNOT BE WHOLLY DISEEGARDED. 4. Many proofs might be given of this. One, not more striking perhaps than others, occurred lately in the Supreme Court of our own country. It is well known that in a lead- ing case,^ Chief Justice Marshall, some years since, gave an opinion which had the effect of almost totally subverting, in two States of our Union, the entire law of charitable uses. And though some other States did not adopt the conclusions of the Chief Justice, his venerated name was seized in all quarters of this land to originate litigation and uncertainty, and deeply to wound the whole body of trusts for religious, charitable, and literary purposes, — truly called "the bless- ing, honor, and glory of any people." That there should be fallacy in the dialectics of Marshall's clear, inferential mind was impossible. Error in conclusion of his could arise but 1 The Baptist Association v. Hart's Executors, 4 Wheaton, 1-29. PEELIMINAEY EEMAEKS. 5 in one way, — from imperfect information sopiewhere near his premise ; and it did, in truth, arise from his taking as fact the statement of guides not wortliy of dependence. For a quarter of a century the influences of his opinion were yet active in evil when, in 1844, an endeavor to subvert a large foundation brought the subject again before the court, in the Girard College case,^ and caused a more careful examination into it. The opinion of Chief Justice Marshall was in review, and was overruled. Mr. Binney showed at the bar, that as to the principal authority cited by the Chief Justice from one of the old books there were no less than four different reports of it, all variant from each other ; ^ that as to one of the reporters, the case had been decided thirty years before the time of his report ; that he was not likely to know any- thing personally about it ; that " he certainly knew nothing about it accurately; " that another reporter gave two versions of the case " entirely different," not only from that of his co- reporter, but likewise from another of his own ; that a fourth account, by a yet distinct reporter, was " different from all the rest ; " that " nothing is to be obtained from any of these reports except, perhaps, the last, that is worthy of any re- liance as a true history of the case ; " and that even this, the best of them, had been rejected in modern times, " as being contrary to all principle." After such evidence that these judicial historians, like others of the title, were full of noth- ing so much as of most excellent differences, the counsel might very well observe, that it is " essentially necessary to guard against the indiscriminate reception of the old reporters, 1 2 Howard, 127-202. Lord Raymond, 203 ; 1 Salkeld, 225 ; ^ Binney's argument in Vidal v. 3 Levinz, 431. And see Fitzgib- The City of Philadelphia, 88, 89 bon, 21, 22; Fortescue, 74; Strange, (the Girard Will Case), Philadelphia, 804; Fortescue, 135. In some re- 1844, pp. 117-119. This same sort ports it would appear that judg- of variance, though not to the same ment was given ; in others, that the degree, is to be seen, perhaps, in parties agreed, and divided the prop- Luddington t>. Kime, reported in 1 erty in suit. 6 PEELIMINAEY EEMAEKS. especially the chancery reporters, as authority ; " and certainly a knowledge less than that which Chief Justice Marshall pos- sessed in some other branches of the law would have re- minded him that most of his authorities enjoyed a reputation but dubiously good, while the character of one of them was notoriously bad. We find evidence of the same incorrectness in a whole batch of reporters long before Mr. Binney's time. The case of Clerk v. Day, for example, is reported by Croke,^ by Owen,^ and by Sir F. Moore,^ and is given to us in RoUe's Abridg- ment.* Yet Lord Raymond^ asserts that it is not accu- rately stated in ant/ one of the books named, not even as to the names of the parties. The same thing is asserted by Parker, C. J.^ 5. Indeed, an antecedent probability that there may be matter in these observations about the reporters, arises from the general history of the volumes. And here we may men- tion (not indeed as a very important circumstance, but as one, nevertheless, which deserves to be noted) the well- known political state of England during a great part of the seventeenth century ; a term of time during which, as will appear farther on, were published most of the common-law reporters whose authority has been judicially questioned. It was the mistake of Charles I., that for nearly the whole of his arbitrary measures he endeavored to obtain the sanction of the common law. Noy, his Attorney-General, had found in the recesses of his recondite lore some precedents which relieved the King of most of the difficulties to which Parlia- ment had reduced him, for they gave to the crown the powers of the people ; and Charles, wanting force to distinguish these 1 Croke, Elizabeth, 313. S. C. 2 Id. 417, under tlie name of ^ Owen, 148, under the name of Clark v. Dasy. Kelly & Taylor's Case. « Fitzgibbon, 24, 25; Fortescue, 8 Moore, 598. 77. * Abridgment, vol. i. 832, 9; ' Strange, 14, 804; Foi-tescue, 135. PEELIMINAEY EEMABKS. 7 ill-ascertained exceptions to the law from its clear and steady principles, assumed them as authority, and made an issue with his subjects on the ground of precedent and constitu- tional right. Thus it was that Mr. Attorney-General Noy became, in fact, the first lord of the treasury, and that, to pro- cure supplies for the government, the whole kingdom was overrun with writs and patents and monopolies. Coming in the garb of law, these measures of finance soon brought them- selves to its test, and claiming to rest upon ancient prece- dents, of which it may be admitted that in nearly all cases they had some semblance, stimulated every man passionately to ask when and of what manner such precedents were. To what extent the agitation of these questions in the courts of law engaged the men of England, I need not describe. The subject is familiar to all educated persons, and is recorded with the power of wisdom and the splendor of eloquence by the great historian of that day.' 6. The matter thus referred to was calculated, I think, to bring the law into an unnatural prominence. We find, ac- cordingly, that judicial reports and proceecJings, from time immemorial recorded in another language, were now ordered to be kept in English alone. And as if to avenge the seclu- sion in which this knowledge had been held, the nation, roused from the lethargy in which it had so long slept, dragged to light everything which bore so much as sem- blance to the aspect of law. Up to the year 1648 there were no reports in print that I recall, but certain of the Year Books, Plowden, Dyer, Keilwey, Benloe and Dalison in Ashe, the first eleven parts of Coke, Davies, Hobart, and Bellewe's Collections out of the Abridgments. But now " came forth," says an historian of the time, "a flying squadron of thin Reports;"^ and undoubtedly there must have been some specific cause for the sudden and unexampled increase of this 1 Clarendon's History of the Rebellion, i. pp. 121-125, Oxford, 1826. ' 5 Modern, viii. 8 PEELIMINAEY KEMAEKS. sort of publication at the epoch of which we speak. We find, for example, that Aleyn, Anderson, New Benloe, John Bridgman, Brownlow, Bulstrode, Calthrop, Carter, Carey, Choyce Cases in Chancery, the 12th and 13th Parts of Coke, Clayton, Croke, CrodboU, Gouldsborough, Eetley, Button, Jen- kins, William Jones, Keble, Lane, Latch, Leonard, Ley, Lit- tleton, March, Maynard's Edward I. and II., 1st Modern, Moore, Nay, Owen, Palmer, Popham, Rolle, Saville, Saunders, Siderfin, Styles, Tothill, Vaughan, Winch, and Yelverton, all first issue from the press between the years 1648 and 1688 ; and it is among these volumes, which form the body of the ante-revolutionary reporters, that the worst of all the books are contained. I have indicated them by italics. It cannot, indeed, be doubted that some of the indifferent Reports of which I speak were booksellers' speculations merely. They printed the books, and then got some lawyer to certify to their merit in some such way as to give them currency. In my notice of Coke's Reports, given in the body of this book,^ I mention the waj'' in which, after Coke's death, the printer brought the 12th Part of -his Reports — a Part noto- riously inferior to earlier Parts — to Bulstrode, Chief Justice of Wales, " after it was fully printed and not before," and got from Bulstrode an amiable and rather deceptive certificate, which, in self-defence, the Chief Justice was afterwards obliged to explain and stultify. 7. Nor should we omit, in this connection, to mention the well-known state^of the press during the term of which we speak. In the partisan fury which pervaded the nation, its germ of power, as yet but nascent, seems to have been stimu- lated to enormous growth,^ and the invention became the minister of frauds to an extent which, even in this day, we can scarcely conceive.^ The matter, in short, arrived to a 1 See infra. twelvemonth. (Hume's History, vi. '^ The Eikon Basilike passed p. 135, Oxford, 1826.) through fifty editions in a single » See Preface , to the Religio • Medici. PRELIMINAHY EEMAEKS. 9 pitch SO high, that, soon after the Eestoration, legislative aid was invoked towards a reformation ; ^ though in the in- veteracy of the disorder, even legislative resources were found quite inadequate to a cure. 8. But beyond these causes of corruption were others far greater and more immediate. I mean that most of these Reports are posthumous, were printed from MSS. not orig- inal, and that even the originals were not designed for the press. 9. Reporters nowadays make reporting a particular study ; they follow the courts regularly, take notes for the purpose, examine the record and prepare the case ; ^ they obtain the original written opinion of the court, often submit the report to counsel and the court, and the volumes appear so soon after the decision they record, that if any error should exist, it could scarcelj'' fail to be corrected. But the old Reports come to us under quite different circumstances. A great many of them, I presume, are mere notes of students of law, Avho in former times, instead of reading printed books, as with us, used to get much of their knowledge of law from hearing and making notes of cases, taken by themselves or others.^ A yet greater difference exists as to the matter of 1 Statute of 13 & 14 Car. II. c. Lord Raymond, 679) ; Almanzor v. 33. Davillaci (1 Comyns, 94) ; Davila v. 2 Most of them, I mean. I should Dalmanzer (7 Modern, 8); Davila be sorry to lay such things to the v. Alraanza (1 Salkeld, 73). An- charge of some gentlemen who, of other more striking: Buckmyer late, have undertaken the office of v. Darnall (2 Lord Raymond, 1085); reporters, — things, certainly, that Birkmyr v. DavDeW (1 Salkeld, 27); they know not of. (Note to the Bourkmire v. Darnell (3 Id. 15); edition of 1845.) Burkmire v. DarneZ (Cases Tempore " Frequent illustrations of the Holt, 606) ; Burkmire v. DarneZZ slender pains which were taken by (6 Modern, 248). In all these cases many of the older reporters to search the names sound alike, though spelt the record may be had from the so differently as to show that the variations they make in the mode of reporter's knowledge of them was spelling the names of parties; one is derived only through the ear. as follows: Almansore v. Davilto (1 Many of the older cases show upon 10 PEELIMINARY EEMAKKS, contemporary publication. Cases in New Benloe go back to the year 1531, while the book was printed in 1661, one hun- dred and thirty years after the decision of the cases it records. Anderson, which goes to 1534, was printed in 1664, the same space of one hundred and thirty years afterwards. In Owen there is an interval of one hundred years ; in Brownlow, of eighty-three years ; in Savile, of ninety-five years ; in Goulds- borough, of seventy-two years ; in Popham, of sixty-four ; in Lane, of fifty-two ; in Ley, of fifty-one. And so of other instances, where it is evident enough that of many cases, the authors, like the worthies of old, must have obtained a report " by faith ; " though not always, like them, " a good report," as was shown in the Girard College case.^ 10. The effects of this publication so many years after date will suggest themselves when you advert to the strong probability that the printer, in consequence of it, must often their face that they could never have been designed for anything monu- mental; e. g. " Wahnsley, J., said that Sir Christopher Wray, late C. J. of England, reported to him that he and all his companions of the K. B. were resolved," &c. (Twyne's Case, 3 Reports, 80.) " Coke showed me a report, which he said he had from Edmond Plowden, of a judgment," &c. (Wharton v. Morley, Croke, Elizabeth, 22.) " Le case est comme jes ay oye." (Evans v. Aysoough, Latch, 31.) " And, as I heard, Anthony Brown, Justice, afterwards declared," &c. (Graysbrook v. Fox, Plowden, 283.) "But the judg- ment was reversed, as Hitcham told Yelverton." (Riches and Brigges, Yelverton, 4.) " Nota. Treby, C. J., related a case," &c. (Anon., 1 Salkeld, 280.) " Mes adjomatur, led tandem, ut audivi, un consultation fuit grant." (Wortley u. Watkinson, 2 Levinz, 255.) "His Honor took time to consider of it; and after- wards, as I was informed, deter- mined." (Sampson v. Braggington, 1 Vesey, 444.) " Ex relatione M'ri baronis Bury" (Badger v. Lloyd, Lord Raymond, 527), and of " M'ri Jacob " (Bishop of Salisbury v. Phillips, Lord Raymond, 537), and in many other places. Mr. Hai-ris, in his biography of Lord Hardwicke, mentions that the Chancellor had several volumes of MS. reports of cases, some of which were denomi- nated " Cases ex relatione Amico- rum" vol. i. p. 54. And the reader of Andrews must, of course, have observed how many of his cases come " ex relatione alterius." See pp. 70, 72, 74, 75, 76, &c. * See supra, § 4. PEBLIMINAEY REMARKS. 11 have had corrupted manuscript. While it is true that, prior to those days, printed reports were nearly unknown, it is to. be remembered that a higher regard was then had for pre- cedent than has been the case at any time since.^ Of course every lawyer would keep a common-place book, into which he would copy whatever cases the note-books of older lawyers happened to contain. A second lawyer would perhaps tran- scribe from the copy ; a third would perform, for himself, the same office by the transcriber ; and a fourth, may be, put into his book what he liked from a third ; and so on.^ The drudgery of transcription, we may also conceive, would not be taken by eminent lawyers themselves, but be consigned to their clerks or students, or other persons not always able to comprehend what it was they were copying, nor to judge from the context whether they were making exact sense or not; or, what is yet more probable, and would be more dan- gerous, intelligent enough to guess at a meaning which made some sense, though not the true sense, and which would have just enough appropriateness to prevent that correction or dis- covery of error which a palpable blunder could hardly fail to insure. Thus the case of the Reports is peculiar. Most books, even when printed after death, are secured from imposition be- cause they subsist in a single copy, written or revised by the author ; and the faults of the printed volume must be the faults of one descent. But of the reporters, the original was lent, not to be printed, but to be copied. It was vitiated by transcript after transcript; mistaken by blunders of the penman; enlarged perhaps to introduce cases, and muti- 1 See infra, § 29. Lord CniEP Justice. "TFAose '^ In 1 Skinner, 45, Sergeant May- Reports are they ? " nard cites a ease " as in my Ke- Sergeant Maynard. " I did ports." "I wrote it," he says, not take the name. I copied it with " about fifty years ago," and adds, my own hand. I did not copy the " that it is as good as any that have whole book, but only some special been printed since." A dialogue then cases." begins: — 12 PEELmiNAEY EEMAEK.S. lated to exclude them. Ignorance and interest, and acci- dent and recklessness and the haste of fraud, all combined to produce error; and the work would be printed at last, without the concurrence of the author, without the consent of the proprietor ; and thrust surreptitiously upon the world from that copy, perhaps, which was the most corrupted of all.i 1 See on this subject of frequent mediate transcription, Dr. John- son's "Proposals for Shakspeare." (Works, ii. p. 125, London, 1806.) It is evident from what is said infra (title " Aleyu"), by Dolben, J., that Aleyn's Reports were not printed from his own manuscript, but from a carelessly made copy. The practice of transcribing the Reports, and its tendency to deprave them, is frequently mentioned in the reporters themselves: "Having lent my book," says Plowden, " to a very few of my friends, at their special instance and request, and but for a short time, their clerks and others, knowing thereof, got the book into their hands, and made such expedition by writing night and day, that in a short time they had transcribed a great number of the cases, and especially of the first, contrary to my own knowledge and intent, or of those to whom I had lent the book; which copies at last came to the hands of the printers, who intended (as I was informed) to make a profit of them by publish- ing them. But the cases being transcribed by clerks and otber ignorant persons, who did not per- fectly understand the matter, the copies were very corrupt; for in some places a whole line is omitted, and in others one word was put for another, which entirely changed the sense ; and again, in other places spaces were left where the writers did not understand the words; and divers other errors and defects there were, which, if the copies so taken had been printed, would have greatly defaced the work and been a discredit to me." Mr. Rowe, the editor of Benloe & Dalison, who was desired by the printer to examine the Reports bearing the names of these venerable partners, before they were made public, tells ns that he had spent some time in comparing that part of the book which is Sergeant Benloe's, with some other copies he himself had besides those which were then already extant; and that he con- cluded with some assurance that it contains the original which was left by, that sergeant, and that it is the most authentic copy of his whole work. He notes the disproportion in number that the cases ah-eady printed bore to this. In one copy which he had there were two hun- dred and forty cases, which were many more than are in the best former edition: in another about one hundred ; and that was the Lord Coke's own copy, which he used and noted with his own hand; and PEELIMINAEY BEMAEKS. 13 11. All that conjecture thus opens to the mind as of like- lihood in this matter is rendered yet more probable by what may be observed in nearly every volume printed about this time. Almost always you are assaulted, either on the title or in the preface, by some note to convince j'ou that the work is printed from a genuine MS. Moore you have '■'■per I' origi- nal Jadis remainent en les mains de Sir Gefrey Palmer, chev. bart.," &c. Anderson, in like manner, '■'■per Voriginal rema- in is manifest, says Mr. Kowe, that those different copies were but different notes and extracts from the original, wherein such as col- lected them made use of their own judgments in the manner of abridg- ing and in the choice of the cases. The executors of Dyer tell us: " After that this work came to our hands, being most earnestly required by some of our loving friends to grant unto them the view thereof, the opinion they had of the author seemed so to inflame them with de- sire to have the same, as that the books themselves, or the copies thereof, without breach of friend- ship, might not be denied them." The same practice is made evident in the certificate of approval by the judges to the Reports of Latch . " These Reports," say they, " are all of Mr. Latch's hand, but, as we con- ceive, not originally taken by him, but excerpted out of some other MS. ," — a matter which is heard of farther in the preface to Palmer's Reports, where it is said that Latch stole one hundred and twenty of his cases out of a note-book he had bor- rowed, and that he had corrupted them not a little in the transfer. The editors of Sir W. Jones had cause, it would appear, for a similar complaint. " The MS. being lent to Sergeant Glinne, presently after the author's death, and by him ap- propriated to his own use, was the reason," say they, "why it was no sooner made public. ' ' And how he prized it is shown, they think, "by his abridgment of the greatest part thereof." The MSS. of Sir J. Kelyng are published, because copies " were dispersed in several hands, which might hereafter be published to the injury of the author; " and Winch is given to the profession from the same motive of preventing " spurious copies in pre- judice of the public." The editor of Leonard's voluminous Reports speaks of them as having been "transcribed by divers honorable and learned persons," who are named; and the resolve, at first made, of Mr. Edward Vaughan, not to publish his father's Reports, " be- got importunities for copies," which were procured, and soon after, " by what means he knows not, dispersed farther than he intended them, and as he had been informed, cited as authorities," and the preface to Siderfin tells us of the practice of the elder Siderfin to transcribe for his private use the reporters then esteemed. 14 PBBLIMINAET EEMAEKS. Jtieant en les mains de Vimprimeur." " The originals themselves of all these reports," says Hughes, the editor of Leonard, "all of them under his own handwriting, are now in my hands." Of the Reports called or miscalled Noy's, the editor declares, " They came into my hands with very much assur- ance that they were his." Sir Harbottle Grimston — for- getting apparentlj'- what, as a good lawyer, he ought to have remembered, that "uneore prist" is requisite to a good plea as well as " de tout temps prist " — avers that he has the auto- graphs of Croke, " and will be ready at any time hereafter to produce them for proof or confirmation." Gouldsborough comes to you printed by his original copy, as can be proved by " many living testimonies, who do and have xery good reason to know his handwriting, that, if need require, might be produced to say as much." Should any one doubt the credit of Sir John Bridgman's Reports, he " may have sight of the original, by the help of the stationer." The editor of Popham has his MS. " out of the library of a reverend and learned sergeant-at-law, now deceased, and said therein to be written with the proper handwriting of the Lord Popham." Yelverton, more satisfactory, comes from an original " south son maine propre, remanent en les mains de sr. Thomas Twis- den, chevalier" &c. The title announces that Ley is printed according to his Lordship's MS. Rolle is " eollegeSs par luy meme et imprimSes par V original." " Reader ! " (appeals the editor of Latch, in pompous and lying solemnity), " the testimonials of many sages of the law, the judges, and his contemporaries, give you an assurance, above all I can ex- press, that the original of this impression was all written by that worthy person's own hand." " These are Sir Thomas Hetley's Reports," seizes on the eye as you open that thin reporter. Siderfin is from " V original south son maine propre ;" and Sir J. Kelyng, preferring English, comes from " the orig- inal MS. under his own hand." So of other volumes printed about these times. The editors, in short, seem always to PEELIMINAKY EEMARKS. 15 take it for granted that fraud is a foregone conclusion ; and, by a pre-deience, make it clear that professional confidence had been largely abused. 12. We have, however, direct assertion of this fact in contemporaneous history. Sir Harbottle Grimston (whose strange appellatives did not prevent his being eminent as leader of the Commons, and afterwards as Master of the Rolls) published, in 1657, an Address to the Students of the Common Laws of England. Its language on this subject is striking : " A multitude of flying Reports, whose authors are as uncertain as the times when taken, have of late surrepti- tiously crept forth. We have been entertained with barren and unwarranted products, infelix lolium et steriles avence, which not only tends to the depraving the first grounds and reason of the young practitioners, who by such false lights are misled, but also to the contempt of divers our former grave and learned justices, whose honored and reverend names have, in some of the said books, been abused and invo- cated to patronize the indigested crudities of those plagiaries ; the wisdom, gravity, and justice of our present justices not deeming nor deigning them the least approbation or counte- nance in any of their courts." Bulstrode refers to the mat- ter in very similar language : " When I had reviewed these late and flying Reports (most of them being ineerti temporis and of late time published), not by the authors themselves (who were profoundly learned), nor yet by them during their lives fitted and prepared for the press, but after their deaths thus published by others, yet not known by whom, having not named themselves." " Thou hast not here," says the editor of Gouldsborough, in 1653, — while language was yet more nervous than polite, — " thou hast not here a spurious deformed brat, falsely fathered upon the name of a dead man, too usual a trick played by the subtile gamester of this ser- pentine age." And if we wish more evidence still, it is found in the testimony of Style. " The press," says this reporter. 16 PEELIMINAEY EEMAEKS. in 1658, " hath been very fertile in this our age, and hath brought forth many if not too many births of this nature, but how legitimate most of them are, let the learned judge. This I am sure of, there is not a father alive to own many of them." 13. In truth, we may remark, that almost all the Reports published in the middle part of the seventeenth century were posthumous ; and that it appears, generally speaking, as though it were only where the work was edited by some relative or person of character, or where a reference is made to the place of deposit of the author's original MS., that you can depend on the value of the book. The matter is better suggested by a comparison of authority as presented in the grouping of a tabular exhibit. NAKE OF THE EDIT. REPORTER. PRINCEPS. EDiTOR. MS., IK WHOSE POSSBSSIOH. F. Moore. 1663. Son-in-law. Sir Gefrey Palmer (son-in-law's). Dyer. 1585. Nephews andEx'rs. Tlie editor's. Croke. 1657. Son-in-law. Sir H. Grimston (son-in-law's). Vaughan. 1677. Son. Son's. Rolle. 1675. Sir M. H.ale. The printer's, for copy. Yelverton. 1661. Sir W. Wylde. Sir Thomas 'twisden's. Anderson. 1664. Original. The printer's. Wm. Jones. 1675. Original. Daughter's and executrix's. lieonard. 1658. Wm. Hughes. Wm. Hughes, the editor's. Godbolt. 1652. Wm. Hughes. Wm. Hughes, the editor's. Noy. 1656. No editor named. No account of the MS. Owen. 1656. No editor named. No account of the MS. Popham. 1656. No editor named. No account of the MS. "Winch. 1657. No editor named. No account of the MS. Littleton. 1683. No editor named. No account of the MS. March. 1648. No editor named. No account of the MS. Hutton. 1656. No editor named. No account of the MS. Ley. 1659. No editor named. No account of the MS. Lane. 1657. No editor named. No account of the JIS. Hetley. 1657. No editor named. No account of the MS. Every book in the upper bracket possesses authority ; scarcely one in the lower.^ * The middle of the seventeenth tility and pollution of the press, century, as we have already said, and particularly by the immense ■was marked by the unbounded fer- number of tracts -with -which it PEELIMINAKY REMARKS. 17 14. Indeed, it was warrant enough to call a book such a man's " Reports," that the cases in it, though manifestly teemed. It would seem, indeed, as if our nuisance of the penny press is a mere resurrection of a filthy spirit that was then stalking the earth, but more happily soon after was laid and forgotten. "I know not," says Dr. Johnson, referring to the period, "whether this may not properly be called the age of pam- phlets. . . . They were undoubtedly more numerous than can be conceived by any who have not had an opportu- nity of examining them." (Origin and Importance of Fugitive Pieces ; Works, ii. p. 247, London, 1806.) And other intelligent judges have thought that, vast as is the amount of ephemeral printing in England at this day, it is actually less than that which prevailed at the time of which we speak I Among these innumer- able productions, now of course " lieing in the sewer, lifeless and despised," there may be, it is pos- sible, Reports so small and worthless that even their names have not reached us ; just as we have certain evidence of many Plays having been in print and under particular titles, while not even the extraordinary re- search which of late years has been made into the early drama has been able to discover one single copy. [What book, for example, is that one referred to by Willes, C. J., in his Reports, p. 120, as Glesson & Gul- * [Considering how rarely the older English judges cite anytliing but Reports in form, Mr. Wallace's qumrt is natural enough. The book is not, as might be in- ferred from Willes's, C. J., citation of it, one of Reports at all, but a now forgotten ston?] * Sir Harbottle Grimston, in 1657, expresses a fear that his father-in-law. Judge Croke's MSS. "should be obtruded to the pub- lic by an incurious law-hand, or through sordid ignorance of some others be prostituted in the con- temptible pamphlet dress and char- acter of such of their blind and misshapen Reports as some of our late justices and professors of the law are in that kind abused." (Address to the Students of the Com- mon Laws of England.) Certainly no Reports that we know of have the exact dress or character of pam- phlets, as we now use that word, or as its supposed derivation (^par un filet) seems to limit it; though per- haps the author had reference to Noy, Owen, Hutton, Lane, Hetley, and John Bridgman, all of which are small and thin folios. The no- tion first above suggested derives an imperfect confirmation from the fact mentioned by Sir Harbottle in re- gard to these Reports, in another part of his address: " The then present justices," he says, " not deeming nor deigning them the least appro- bation or countenance in any of their courts." So that the absence of judicial reference to these Reports, if any such there were, is not a sufficient evidence that they never existed. text-book. The following is the title of the book : — Glisson (William), and Anthony GuL- STON. Tbe Common Law Epitomized: with directions how to prosecute and defend personal actions. 8vo. London, 1679.] 18 PRELIMINARY REMARKS. copied from some other MS., were copied in his handwriting: this is the history of Latch,i and, as would appear, of Goulds- borough also.2 Or, that it had been abridged in any style, good, bad, or indifferent, from the Reports of any eminent in- (^iyidual ; as was the case with Noy.^ Or that the MS. used for copy had been examined and approved by the person named as author ! which is the case with Godbolt.-* Or even that a part of it was reputed to have belonged to such person; on which infirm foundation rests the authorship of one part of Popham.5 In many cases, as in Dalison's and Winch's, another part of Popham and a part of Owen, even these slender ligaments are wanting to bind authorship to the repu- tation of it ; for, in the cases just named, the reputed authors were dead and buried many years before the decision of the cases which they are made to report.® The names of eminent judges and lawyers would appear, in short, to have been pre- sented to many of these books, much as some name of hero- ism is given to a foundling. It is certain, at all events, that with some of these Reports there is literally nothing " in a name," and that it is to be taken as a designation of the book, much more than as a warranty or even a representation of authorship.'^ ^ Prefatory certificate to Latch. calling Lord Hardwicke to account ^ See Preface to Gouldsborough. for denouncing " Finch's Reports " 2 1 Ventris, 81 ; 2 Keble, 652. as of no authority. Mr. Justice * Titlepage to Godbolt. Tucker can't understand why the ' Preface to Popham. book is of no authority, and affirms " Gouldsborough, 153; Preface to that the name of the author, Sir AVinch. Heneage Finch, on whom he is at ' Humbly as men of sense must the trouble to collect those many rate the diminutive science of biblio- tributes of elevated praise, which no logy, none can deem it wholly with- one ever disputed to belong to him, out a value, when he sees the may weigh against the opinion extraordinary blunders into which even of Lord Hardwicke. (Smith t». celebrated judges have sometimes Chapman, 1 Hening & Munford, fallen, through a want of it. In an 293.) Till seeing this, I supposed important case in Virginia, for that every one knew that " Finch's Rxaraple, I find an eminent judge Reports " is a p.seudonyra. PRELIMINARY REMARKS. 19 15. It may naturally be asked how the state of things im- perfectly set forth in what precedes could well exist, or why we have no contemporaneous contradiction, by relatives or critics, of an authorship thus unworthily fixed upon the dead. Such contradiction does not exist, to any large extent, cer- tainly, in the books of reports which immediately followed, and in no case at all, I believe, with circumstantial particu- larity. It may be attributed, I suppose, partially to the ab- sence of newspapers, advertisements, reviews, and other means of conveying literary information, by which, in our own day, we expect to have all such matters made known and settled ; and as much perhaps to " the tumult of those unhappy days," which left scarce any man leisure io concern himself with the curiosities of professional literature ; and when occasional compositions of all sorts were so much neg- lected, that, according to Dr. Johnson, a complete collection of them is nowhere to be found.' 16. To revert, however, to the causes of the imperfection of which we were speaking in the earlier reporters. In the extract made from Bulstrode, in section 12, preceding, there is open to our mind a source of error of the most perennial kind : the originals were designed for private use merely. Students, as we have said, were in the habit of taking notes in the course of their apprenticeship, and the bar in the course of their practice ; and the judges, with whom the memoria prceteritorum eventorum, was matter of essential accomplishment, would naturally if not necessarily preserve memoranda of their own decisions. But in no one of these cases would such records be designed for more than private use, or as other than memoranda for the owners themselves ; nor would they be more full or more carefully drawn than was necessary for such an object.^ How imper- ^ Life of Addison (Works, x. p. part of Coke, Style, Saunders, and 86, London, 1806). one or two others, scarcely any of * With the exception of Plowden, the ante-revolutionary Reports were 20 PEBLIMINAEY EEMAEKS. feet, from their nature, would be even the originals of such Reports ! And who can even conjecture how much the author, omitting in casual inattention or the " tempest of business," might design to supply at his leisure and from the memoranda of others ? or how much he might suppose him- self able to retain in unaided memory ? or how much, from particular circumstances, he might not care to remember at all? 17. To all the causes of imperfection which we have noted must be added another and an important one, viz. that many of the volumes which we call Reports are translations from French or Latin originals never published. In cases like Dyer's, the first eleven parts of Coke, Latch's, Yelver- ton's, Saunters', and some others, where the work was first printed in the original and subsequently translated, you have at least the means of verifying the translator's work. But during the usurpation ^ (a term, I have said, very fertile in reports), the English having been made the court language, and Reports in other languages prohibited, the editors trans- lated their MSS. at once into the national tongue. Thus it is that Croke, Winch, Popham, Owen, Leonard, Hetley, J. Bridgman, and others perhaps, though all written originally in French or Latin, first appear to the world in the form of a translation. And when you consider the cryptographic abbreviations which in olden times jnarked alike the court and the common hand ; that the original MS. having been designed for the press. " The Dyer, it is well knoiini, left his in volume of Sir William Jones," an incomplete state; and even Coke says his editor, " as may be easily tells us that a part of his were writ- perceived, was not intended by him ten amidst the distraction of many for the press." " These Eeports," pressing concerns, and therefore that says Carthew's editor, "I did not he could not " polish them as he de- design should have ever seen the sired." (Preface to 11th Reports.) light." Sir John Vaughan's are i Anno 1649. The Act took effect printed without the editor's having from 1st Januaiy, 1650. (Scobell, received any "particular direction 142, quoted in Johnson's Life of from the author for that purpose." Coke, ii.p. 430.) PEBLIMINABY REMAEKS. 21 generally designed but for private use, would be filled with symbols understood by the authors alone ; and, above all, that the usually anonymous translator was secure from aiiy comparison of his translation with the original, — you can readily conceive the value of this element of imperfection.' 1 Sir Harbottle Grimston, the son-in-law and first editor of Croke, says in his translation of the Judge's MSS. : " I have taken upon me the resolution and task of extracting and extricating these Reports out of their dark originals [his own father- in-law's handwriting!], they being written in so small and close a hand, that I may truly say they are folia dbyllina, as difficult as excel- lent." The editor of Sir William Jones complains that the Judge's writing " was very difficult to read, till mastered by patience and obser- vation." This matter is not with- out evidence of a practical impor- tance. Sir Edward Sugden, examin- ing a great' question of law, has occasion to note it. " In 2 Sid. 99," says he, in his Treatise on Powers, 17, n., " the words non tarn are, in citing this passage, substituted for non tantum; but they appear to make nonsense of the sentence. The word in Dyer is abbreviated thus, tm, which appears to be the proper abbreviation for tantum, and is decidedly used so by Dyer him- self in another place. ... It is vei-y important that the tme read- ing of the passage in the text should be determined." In fact this mat- ter of the court-hand and of ab- breviations has proved so constant a source of trouble, that the English Parliament, on more than one occar sion, has had to interfere. In 1649, it was enacted that after January 1, 1650, all writs should be written in an ordinary, intelligible hand or character, and not in the hand usually called court-hand; and this wise suggestion of Puritan igno- rance was re-enacted and enlarged by the more enduring legislation of con- stitutional sense. A statute of 4 Geo. II. ch. xxvi. enacts that pro- ceedings in the courts shall not be in any hand commonly 'Sailed court- hand, but in words at length and not abbreviated. In our own Common- wealth the grievance was strangled in its birth; for the "great law" of William Penn, passed at Ches- ter or Upland, immediately on his arrival in America, in 1682, declares with particular solemnity that all " pleadings, processes, and records in court shall be in an ordinary and plain character, that they may be easily read and understood." The lawyer "who studies Shak- speare at the Inns of Court " will probably recall as impressive an illustration as any to which his more professional brother could point. See Childe Harold, canto iv. stanza xxx. note 8, where a critic of France,misinterpreting the ptubs. , which Petrarch records of Laura, and reading it partubus instead of perturbationibus, makes an unmar- ried lady responsible for the birth of eleven children. As for the way in which proper 22 PKBLIMINAET EEMABKS. "We have said nothing thus far about careless proof-reading, or the absence of proof-reading altogether. Yet gross typo- graphical errors, which we can detect, are to be seen in many of the old Reports, — errors, I mean, that on their face are such. How many may exist which nothing but a com- parison with the " copy " would reveal, will never appear. In truth, so far as law French was concerned, there was really no standard either of pronunciation or orthography ; ^ and in some instances (as ex. gr. in Sir William Jones), where palpable errors of the press abound, I should suppose that it was not even attempted to correct the press. 18. In the argument of Vidal v. City of Philadelphia, it was observed at the bar,^ by Mr. Binney, that the early chancery reporters were even less accurate than their con- temporaries at law ; and the sentiment was confirmed by Judge Story,-' who speaks of them as "shadowy, obscure, and flickering." The observation is true ; and in regard to the early chancery reporters we may find a yet additional cause of incorrectness, arising perhaps from the history of equity. Though the binding nature of precedents in equity is said to have been acknowledged a good while ago, both by Bridgman,* and by Lord Chief Justice Treby, sitting with the Lord Keeper,^ it is yet true, as a general thing, that until the time of Lord Hardwicke equity was administered pretty much according to what appeared to be good con- names become metamorphosed by cation, tells us that " to smatter transcription, or by carelessness in Latin with an English mouth is as catching them, see 2 Atkyns, 3, 3 ill a hearing as law French." Id. 132, and Ridgway, 158. In the ^ Binney's argument in Vidal ». first-named place, "Mr. Robins," The City of Philadelphia, 88 (Girard " a very eminent counsel," as he is Will Case, Philadelphia, 1844, p. there styled, is left in the enjoy- 117), note. ment of his true name ; in the sec- ' 2 Howard's Supreme Court cond-named place he is transmuted Rep. 193. in Mr. "Dobbins; "and in the third * 1 Modern, 307. becomes Mr. " Dolbin." ^ 3 Chancery Cases, 95. 1 Milton, in his Treatise of Edu- PEBLIMINABY BBMARKS. 23 science applied to the case. Hear such a man, for example, as Chief Justice Vaughan. " I wonder," says he, in 1671, " to hear of citing precedents in matters of equity ; for if there be equity in a case, that equity is an universal truth, and there can be no precedent in it," So, too, even Lord Not- tingham, who in a degree, though one inferior to that which marked Lord Hardwicke, did so much to give a scientific form to equity. " I must be saved," he said in the Duke of Nor- folk's Case, " by my own faith, and must not decree against my own conscience and reason." ^ Indeed, the error seems to have been a vulgar one in the profession so late as 1765, when Blackstone, quoting a Dutchman for authority, declared that " there can be no established rules and fixed precepts of equity laid down without destroying its very essence." ^ While so little deference to precedent was had from the woolsack, no great motive existed to record cases ; and hence until we come to the time of Peere Williams, when, under a succession of eminent men, equity began to assume the shape of a science and a system, we have few Reports which inspire any considerable confidence as to accuracy, even where the genuineness of the MS. and the capacity of the author (as in the case of Vernon) have not been brought into reason- able question. It may also be remarked that many Reports in the eigh- teenth century — that is to say, up to the middle of it — were posthumous or anonymous ; chiefly the former. Indeed, the number of Reports which were issued by the persons them- selves whose names the books bear is, prior to about the year 1710, very small. 19. What I have thus said will show that from foregone circumstances some of the reporters would not be likely to be eminently correct ; and that the remarks of judges, dis- ^ See Preface to "The Second from the 20th year of King Chai'les Part of Reports of Cases taken and 11.," &c. London, 1694. adjudged in the Court of Chancery ^ 1 Commentaries, 62. 24 PRELIMINARY REMARKS. crediting them in particular cases, are to be received with respect as not wholly improbable. But it is equally necessary to remember that II. THESE REMARKS ARE NOT TO BE OVERESTIMATED. 20. A thorough knowledge of the old reporters is what no man at this day possesses ; and the same remark may be more or less true of the lawyers for the last half-century. This was otherwise, however, until comparatively of later times. Up to the year 1776, for example, the whole number of Reports in England, both at law and in equity, did not much exceed a hundred and fifty volumes ; wliile in the United States there was not then, nor for many years after- wards, so much as a single one. The reporters whom in civility to contemporaries we now style old, were then of course the hand-books of the law. We rarely ope-u ofne of them whose broad margin is not either graced or disfigured by constant reference and comments with the pen, often in different hands, and indicating an intimacy of acquaintance to which we of this day are strangers. But the chief justice- ship of Mansfield formed an era in the law ; and the Reports of his chronicler, Sir James Burrow, worked a revolution in reporting. We have now not far from four thousand volumes of Reports ; ^ and of late years particularly the decisions of every court, dignified and diminutive, are handed out to us in such pleonastic numbers, and by the subjects of which they treat touch so much more nearly the practical concerns of men, that the older reporters have faUen into comparative oblivion. I doubt, therefore, whether all even of that little 1 Figures which I cast give the Western States, — the west of the whole number at one thousand the western, — where the sturdy six hundred and eight: — but dum stroke of the woodman must yet loquimur ! alas! the bookseller's be resounding in the tribunals of boy opens the door, with an armful justice. (Note to the edition of of new volumes, most of them from 1845.) PRELIMINARY REMARKS. 25 which judges have said of late times, and in this country par- ticularly, about them, be founded upon a thorough personal knowledge of their contents. " The number of persons," says the witty Mr. Puff, in " The Critic," " who undergo the fatigue of judging for themselves, is very small indeed." In this day of " cheap reading " there is a good deal of cheap writing, and even in the law — and on the bench — there is a class who, in Hooker's language, " talk of the truth, which never sounded the depth from whence it springeth." ^ Sir Edward Sugden has deemed it worthy of record, that of the decisions cited in his Treatise on Powers, the report of every case had been anxiously consulted ; ^ and the result of his labor has been a text-book which rose at once to almost the authority of judicial decree.^ But how few there are who could bear fellowship to such fidelity ! or who, stopping short, have yet followed the advice somewhere given by Niebuhr to a student of philosophy, never to quote at second- hand, even if the citation be scrupulously verified, without stating through what channel you have drawn. 21. The sort of quotation which I have spoken of as com- mon, leaves one sometimes at a loss, in this matter of the books, to know how far he may depend upon criticisms which he meets ; for no great reliance would be due to learning which is but the repetition of other men's statements, — themselves, perhaps, in turn, as worthless as those which they originate. To illustrate what I mean : A censure of Noy happens to be found in Hargrave and Butler's Coke ; * an elementary book read, as of course, by every student. The consequence has been, that while reports as bad even as those ascribed to Noy, but whose censures lie in books but little read, are often cited, the attorn,ey-general of Charles is ^ Ecclesiastical Polity, book i. p. 4 Law Reporter, 263; 3 Johnson's 82. Chancery, 531. ^ Preface to Sugden on Powers. * Page 54 a, note. ' 2 Broderip & Bingham, 535; 26 PEELIMINART REMARKS. scarcely named but to be condemned. I doubt not in the least that Mr. Hargrave's censure is just, nor that by him it was made intelligently; but of the persons who have ap- propriated it as their own, how many are there who have faithfully read what they so unhesitatingly condemn? A Frenchman, again, regards Sir W. Blackstone's Reports as so inaccurate that he excludes them from the list of Reports altogether. How far he is right we need not inquire.^ But the author of Mahomet, of Zayre and of M^rope, could see in the yet sublimer productions of Shakspeare little beyond " ses farces monstrueuses qu^on appelle tragedies ; " ^ and I humbly venture to doubt whether Dupin, rejoicing even as Monsieur is known to do in his feux d'artifiae, would yet taste the distinctions asserted for the squib-firing youths of Scott V. Shepherd.* 22. In other cases, the criticisms, by being false, have been less innocent. Thus, from impressions taken up in youth as to the personal habits of the individuals, or from some other insufficient cause. Lord Mansfield forbade counsel's citing Mosely and Barnardiston ; * and his censures being found in very popular reporters, the volumes, like Noy, were for a long time scarcely ever quoted but to receive accumu- lation of disgrace. And so they might have remained till now, had not the Earl of Eldon, who usually examined things for himself, repelled the imputation. More careful investi- gation makes it plain that, notwithstanding the repeated condemnation of the volumes, one person has only repeated 1 Dupin, Profession d'Avocat, Hales! Holt ! Fitzlierhert ! Plowden, ii. p. 575. The author remarks that Waughan." the English Reports have become so ^ Voltaire, De la trag^die Ang- numerous, " et quils se multipUent laise. ((Eu\Tes Complfetes, xlvii. p. tellement cJiaque jour qu'on croit inutile 272, Basle, 1787.) de les specifier id. On se contentera * Scott, an infant, by his next d'en indiquer les principauxs' auteurs. friend, v. Shepherd, an infant, by his Ce sont Brooke! Coke, Crake, Dyer, guardian (2 W. Blackstone, 893). * 5 Burrow, 2629, and 2 Id. 1142. PKELIMINAEY EEMAEKS. 27 what somebody had said before him ; and that the error of all can be traced to the single and perhaps unconsidered dictum of one gifted and imposing individual.^ 23. Numerous, indeed, might be the proofs that judges have been content, in this matter, to draw from the stag- nant reservoir of their predecessors' learning, rather than at the spring of their own research and thought ; and hence we may say, as a general rule, that with regard to the char- acter of the old reporters, statements earliest made are more deserving of attention than those more late, confirming or enlarging them. If, indeed, these latter contradict prior state- ments (referring to them, especially), the case is altered, and, in some circumstances, might be taken to be reversed. 24. But even the statements earliest made are not to be received with a blind reliance. Much of their value depends upon circumstances ; much, especially, upon the person from whom they come. Some men deal largely in these small things, — the curiosities of legal literature ; the mint, anise, and cummin of the law : but such men are not always pro- found in knowledge, nor comprehensive in their views ; for, except in minds happily constituted, these studies do, no doubt, tend to contract the observation and to give diminutive- ness to perception. The critical eats out the comprehensive and the logical ; and there is danger lest such learning be elevated to an importance which it does not merit. Al- though a book may not be " of authority," yet it needs not, 1 The manner in which the Earl Mr. Murray had become Lord Mans- of Eldon speaks of Lord Mansfield's field, when Mr. Barnardiston's Ke- flings at Barnardiston is peculiar, ports were cited, his Lordship used The Earl, quoting a case in the to say, ' Barnard , what you House of Peers from this reporter, call him.' In that book, however, says: "Lord Mansfield, then Mr. my Lords, there are some reports of Murray, argued that case before great value. " 1 Dow & Clark, 11. Lord Hardwicke, and Mr. Barnar- The italics are not Lord Eldon's, diston was at the bar at the same and the sarcasm, no doubt, is deli- time, although afterwards, when cately sheltered. 28 PEELIMINAEY EEMABKS. as of course, to be pitched away with contempt ; for the truth is spoken sometimes, even by those who speak it least often. The remarks of legal bibliologists deserve to be received as suggestions ; for it is not often that this sort of learning, in the nature certainly of curious, is largely possessed by other members of the profession. We have stated the want of it in one illustrious case, that of the Chief Justice Marshall ; and it usually happens that men of strong, logical minds, who reduce their knowledge to general principles, and trust largely to the pure strength of reason, are not tenacious in their memory of insulated facts nor curious after diminutive history. These are the " homines excellenti animo et virtute " of Cicero ; ^ " sine doctrind, natures ipsius habitu prope divino, per seipsos moderatos et graves exstitisse." Their intellect finds its true perfection in being a law unto itself ; and unless educated somewhat technically in the profession, they gen- erally dispense with the search for nice precedents. Then again it may happen that men of a widely different sort from those merely curious, persons of most active and comprehen- sive intelligence, who have spoken about these things, may yet, from some cause, be not always, in regard to them, most worthy of confidence. Lord Mansfield has been more often quoted for opinions about the reporters, I suppose, than almost any other single judge. Yet I doubt whether this great personage was the best authority on anj point of anti- quarian learning. I have no belief, indeed, — as has been suggested that I have,^ — in the imputations made by Junius upon this venerable and most accomplished judge. At the same time I cannot quite agree to what, in a too flattering review of an earlier edition of this little book of mine,^ has been claimed for Lord Mansfield in" England, to wit, " that through the whole course of his judicial career he was in the 1 Pro Archia Poeta. view, is. , New Series, pp. 321-343, ^ Law Magazine and Law Re- London, 1860. » Ibid. PRELIMINAEY EEMAEKS. 29 daily habit of exhibiting an anxious respect for precedents" if by precedents is meant " law adjudged," as distinguished from " law settled by the force of reason." I think, as I said in that edition, — with no discredit to Lord Mansfield either on that account, — that " his taste was more sym- pathetic with Pope than with Plowden ; " and that he had too much both of the power and the independence of genius to follow adjudged points if he thought them adjudged on principles that were not wide and comprehensive ones. Sub- sequent judges, it is well known, have moi'e than once dis- abled his Lordship's bibliology. Lord Kenyon, while in the zenith of his knowledge, or Eldon, or Redesdale, or Sugden, in England ; or with us, Richard Harrison of New York, Daniel Dulany of Maryland, Edward Tilghman, Horace Binney, or Horace Binney Wallace of Pennsylvania, or any of that con- sort of lawyers whom these may be taken to represent, — would, in my estimation, be worthy of higher credit on such points ; men, I mean, who, being eminently formed for the law by the piercing and logical structure of their minds, have been distinguished by having acquired all its deep and various learning. 25. There is another element, and an important one : " By whom are these observations reported ? " I speak not here of the authority of the reporter, so much as of his manner. Some reporters are minute, others general. One man gives you a daguerreotype, another but a pencil out- line. Burrow is a very good reporter ; yet it may easily be conceived that the awe with which something magic in Lord Mansfield inspired every one about him, and which led Sir James to treasure the minutest dictum that fell from his lips, may have given body and permanence to what may have been a conversational or suggestive remark, or a remark of inquiry perhaps, and not meant to be delivered at all as a judgment for posterity. We are ignorant, of course, of the manner in which an observation was uttered ; and, translated 30 PEELIMINAEY BEMAEKS. to type, a passing idea assumes the weight of judicial resolu- tion.^ 26. Even more to be regarded than the consideration just named is another, which is this, that most of these remarks are not what may be called natural expressions : they are usually found in cases where a judge is combating an au- thority, and where his mind may have been somewhat warped by the interest of his argument. Pressed by an authority, it is found safer to discredit a reporter than to depart from a precedent. Lord Mansfield is possibly open to a suggestion of this kind ; and the influence may be detected in minds as dispassionate as his. Lord Kenyon, for example, being urged, in Rorke v. Dayrell,^ by a report of Burrow's, was not re- strained from questioning the fidelity of this most faithful knight. He declared it probable that in the report of Chitty V. Cooper,^ Lord Mansfield had been misrepresented. But more critical investigation shows that even Kenyon did not always weigh his words in scales of gold ; and that, in this case, his censure proceeded as much from his wish as from his candor. " If Lord Kenyon " (said Mr. Baron Vaughan more recently in the House of Lords),* "before he declared his judgment in Rorke v. Dayrell, had fortunately referred to his own note of Cooper v. Chitty, which has since been published by Mr. Hanmer, from his Lordship's original manuscripts, instead of impeaching, he must have borne testimony to the accuracy of Sir James Burrow's report. . . . The notes of Lord Kenyon and of Sir James Burrow on this point are in such perfect harmony that one may be considered a fac-simile 1 I am not aware that it is an view already alluded to of this work, established fact that Lord Mansfield (Law Magazine and Law Review, read and approved the manuscript of ix., New Series, pp. 333, London, Burrow's Reports before they were 1860.) printed; though it appears to be = 4 Term Reports, 402. suggested that he did by an English ' 1 Burrow, 36. writer, to whom I am indebted for * 6 Bligh's New Reports, 369 some excellent observations in a re- (A.D. 1832). PRELIMHSTAET REMARKS. 31 of the other." A very palpable hit, to be sure ; and one which, by a juxtaposition of the two re^^rts, the learned Baron makes sufficiently pungent. We can trace the same thing in the vastly greater mind of Chief Justice Marshall. In the opinion of this great judge to which I have already referred, he found that his conclusion was at variance with a decision reported in Sir William Blackstone. The Reports &f the English commentator, it is known, do not sustain his high reputation ; and the Chief Justice remarks, that all the respect which he entertained for the reporter of that case could not prevent the opinion that it had been " inaccurately reported." ' But when the matter came to be more severely examined in the Girard College case, it was shown by Mr. Binney, at the bar, that Blackstone's report was entirely con- firmed by another, in Eden ; and that both were " sustained by all that deserves the name of authority in England." ^ 27. The last circumstance which I shall mention is one which has particular application to our own country and to this day. We find it stated occasionally in the English books, not that a reporter is inaccurate, not that reliance cannot be placed upon his report, or that he is of bad authority, but that he is " not authority." Take, for example, the book known as Popham's Reports. Chief Justice Hyde, in quoting a case which is found there, while he vouches for the accu- racy of the case (having heard it), yet speaks of "the au- thority of the book as none." ^ So in regard to the Reports of Sir John Davies, a book of undoubted accuracy : when these were oited, the court, not denying the accuracy of the Re- ports, yet informed counsel that the book was not " canoni- cal ; " * that is, I suppose, not authoritative, nor having the force and binding efScacy of a rule. Again, Buller tells 1 4Wheaton, 41. Will Case, Philadelphia, 1844, p. 2 Binney's argument in Vidal v. 129. The City of Philadelphia, 92 ; Girard » 1 Keble, 676. * Latch, 288; S. C. Palmer, 462. 32 PEELIMINAEY EBMAEKS. US that Comberbach and Noy had been " forbidden to be cited." ^ In anoflier instance, Lord Hardwicke declares of a certain book,^ that it is better collected than most of the kind, yet he characterizes it as " not of authority." The same great judge elsewhere refers to Fitzgibbon's Reports, but adds : " Which I do not care to rely on, as it is of no authority ; though this and some other cases are well reported in it ; this particularly finely." ^ Of Baruardiston, Lord Mansfield " absolutely forbade the citing ; " yet he said noth- ing against the correctness of the particular case quoted ; nay, admitted that the reporter did surprisingly often stumble upon what was right ; and, as would appear, made no objec- tion against receiving other evidence to show exactly the same thing which was found in the interdicted volume.* So, when Sergeant Wynne referred to a report in Gilbert's Cases in Equity, the court, we are told, " exploded the book ; " ^ a form of expression rather denoting that the accuracy of the case cited was not regarded as a question open to debate. And again, to multiply as well as to end our instances, when Mosely was quoted, the Chief Justice told Mr. Impey that the book was one which "he should not have quoted;"* and Mr. Mansfield, opposing counsel, " owned that he had never seen such a book,"^ when, in fact, the volume had been in print for more than a quarter of a century,' and when the case itself shows that Mosely's report was correct, and could have been proved so at the time. No remark, however, as to the probability or improbability of this last point, nor indeed about either point, appears to have taken place. Mr. Impey receives Lord Mansfield's remark exactly as if it were the overruling of a point of evidence : " the book is ex- cluded ; there's an end of that ; " and what the counsel 1 Clarke. 6 Clarke. 2 The Practical Register. See 2 '5 Burrow, 2629. Atkyns, 22. ' Bridgman's Legal Bibliog- » 1 Kenyon, 71. raphy, 223. ♦ 2 Burrow, 1142. PEELIMINAET EEMAEKS. 33 meant to show by it he shows independently of it, by pro- ducing a certificate to the same effect from the register's book. 28. In all these cases, the objection seems to have been of a technical sort, — an objection, not to the accuracy of the report, but to the reception of the book in which it is con- tained. On the other hand, we often find reporters cited, when the inaccuracy of their books is notorious ; as, for example. Latch, Keble, Siderfin, Carter, several volumes of the Modern Reports, the Cases in Chancery, and other books. When these are cited, we find, perhaps, that their general incorrectness is referred to, and may be an inference drawn from it, of incorrectness in a particular case relied on at the bar ; but I am not aware that judges have ever " absolutely forbid" these books to be cited, or "exploded" them, or spoke of them as being technically " not of authority." In one case, Lord Rosslyn even speaks of a book ^ as of " con- siderable authority," yet, referring to a case reported there, calls it " totally misreported." And Sir William Grant, in another case, uses similar language about the same book,^ the technical " authority " of which he does aot call in question. 29. The forms of expression which I have mentioned seem to be peculiar ; they would indicate a distinction some- what similar to that known at nisi prims, between compe- tency and credibility. I do not profess perfectly to understand the matter. I take it, though, to be probable, that the force and effect of what used to be known as precedent has, of late times, considerably changed. Formerly, as every one knows, great deference was paid to authority, in a- strict and technical sense of the word, — a deference perfectly intelligible when you advert to the long, laborious, and repeated argu- ments, and to the great delay which, in former times, at- 1 Precedents in Chancery. And see 5 Vesey, Jr. 664'. " 2 Merivale, 135. 8 34 PEELIMINAEY EEMARKS. tended the investigation and settlement of points of law.^ Precedents such as these were, — precedents established after argument and re-argument, iterated and repeated, followed by consultation and advisement, — were well worthy of respect. A divided bench was unknown. Judgment was not given till every doubt and shadow was dissipated, and all opinions were settled and made one. The courts, too, were few and independent of each other ; the Reports were still fewer, and recorded such cases as established principles, rather than, as now, what are but the varied and ever varying illustrations of them.2 30. While this entire submission to precedents prevailed, there would naturally be some jealousy as to multiplying the sources of them ; and it would not follow, because a book was unauthoritative, that it was false likewise. It would be enough, I presume, that it was unknown or new, unrecog- nized or suspected ; or perhaps that it had not been approved or allowed by the judges or licenser.^ Such a distinction, if 1 See an account given by Chan- authority," are each of them found cellor Kent (1 Commentaries, 487, in connections so various, that it is 488) of the manner in which cases not possible to assign any single were argued in old times, both at the meaning to the word. But the mat- bar and on the bench. See also, for ter of " allowances " by the judges, an example, The Lord Cromwell's to which I have just adverted, is one Case, 2 Reports, 70 b. which it would be interesting to see ^ I have mentioned, supra, § 20, developed by a person who perfectly note, that the whole number of understood it. Every one accus- volumes prior to 1776 does not tomed to open the old reporters is of much exceed one hundred and fifty; course familiar with certain prefa- yet in these are contained reports tory lines, beneath which are dis- frora the time of Edward I., a term played the names of the judges, of about five hundred years. The varying from one to thirteen. And three thousand eight hundred it is well known that the license of volumes which complete the now the press became so great during the existing number come to us within rebellion and usurpation, that with the last seventy years. What is the return of Charles II. an act was "behind"? passed "for preventing abuses in ' The expressions, "of author- printing," &c. This memorable act ity," "of no authority," "not of declared, among other things, that PRELIMINAKY REMARKS. 35 it ever existed, could not have been strongly marked even in England ; and, in this land and day of " the free thought of the " all books concerning the common laws of the realm should be printed by the special allowance of the Lord Chancellor, or Lord Keeper of the great seal of England for the time being, the Lord Chief Justice, and Lord Chief Baron for the time being, or one or more of them, or by their or one or more of their ap- pointments." It expired in 1692, after the Revolution, having been in force for thirty years. It is generally supposed that in consequence of this parliamentary requirement, the prefatory passports of which I have spoken were given as mere matter of form ; nor can I certainly say that they possess any higher virtue. I have remarked, however, on comparing numbers of these certificates together, that there is a difference, and apparently an in- tended difference, between their lan- guage; and yet farther, that, in an imperfect degree, the strength of the certificate does tally with the com- monly received reputation of the book. Thus, take the Year Books. The twelve judges not only " allow the publishing " of the work,but also " recommend the same to all stu- dents of the law," an act of civility not required of them by the statute. Moore is not only " allowed," but as "approved," likewise; and a cer- tificate is added, that it is printed from a genuine manuscript. Yel- verton is " allowed and approved for the common good." Sir W. Jones receives a certificate nearly similar; and Sir Matthew Hale superadds to the " allowance " of Rolle's Reports, that they are "very good." All these are books of authority. De- scend, however, along the scale of merit, and you find that Keble, Siderfin, Carthew, and Bulstrode (all of which are very low upon it), are merely "allowed;" and that the Reports in Chancery aire only " licensed." It is to be observed, too, that while, in some cases, the judges certify to the " great wisdom, learning, and integrity of the author," they do by no means afiirm that they have ever read his work, either in manuscript or in print. In other cases it is clear that they had. " I have perused these Reports " (says Chief Justice Wright, speak- ing of Benloe & Dalison), " and I believe them to be the original manuscript; being taken with great judgment . . . therefore I do allow and approve them." Sir Francis North gives a certificate to Littleton, apart from the other judges: they, indeed, but "allow" the book; he declares that he had found it " to be made with great judgment and truth; " and Sir Matthew Hale cer- tifies, as we have said, that Rolle's " are very good. "- Again, when certifying as to au- thorship, they do it in different language, for different books, — in the majority of instances certifying but to a common intent; in the residue more particularly. Thus, in the case of Ventris, Vaughan, Levinz, Palmer, and several others, 86 PKELIMINARY EEMAEKS. free soul," can hardly be regarded as existing at all. Hence it does not follow that we must discard a book, because English it is done by a sort of implication ; the certificate being as to " the wisdom, learning, and integrity of the author." Authorship, how- ever, is not the point adjudged, as we should say ; the judgment being upon the point of " wisdom, learn- ing, and integrity," authorship being presupposed. But in the case of Moore, and also in the case of Palmer, and of Benloe & Dali- son, they declare directly that the work is printed from " the original copy," and of Levinz, that the re- ports are ' ' all written with his own hand." In some cases they certify against authorship, as in Latch, where it is declared that though the reports " are all of Mr. Latch's hand," yet, as the judges conceive, they were " not originally taken by him, but excerpted out of some other manusci'ipt, ' ' — a conception in which, as appears by a volume pub- lished long afterwards, the judges were correct, for the cases were taken from a note-book of Palmer's. In other cases they hold a significant reserve, as in Littleton, where, with- out any preamble, they " allow the printing of the book entitled the Re- ports of Sir Edward Littleton . ' ' And the same exclusion of conclusion ap- pears in the separate certificate of Sir Francis North to the same work; he says nothing about the " wisdom, learning, and integrity of the au- thor," nothing about " the original manuscript." It is simply, " Find- ing these reports to be made with great judgment," &c. We have adverted to the correctness of the opinion given by the judges in re- gard to Latch ; their reticence about the authorship of Littleton is the more remarkable, inasmuch as, though the book in question has been treated directly as a counter- feit (see post), the evidence on the subject, one way or the other, is far from satisfactory. It would be, as Hamlet says, "to consider too curiously," to consider this matter more nicely; nor do I by any means design to elevate these certificates to a high grade of value. But perhaps they ought not to be wholly despised; and it is possible they may sometimes prove at least an imperfect introduction to the history of the volume. The reader will remember, of course, that it was only in the year 1662 that the act against abuses of the press was passed; and if the book wei-e printed before that time, that e¥en the absence of a cei-tificate would not, of itself, be enough to damn it. Keilwey, as originally printed, the first parts of Leonard, all Dyer and Plowden, the canonical Parts of Coke, are all uncertified, from the cause I mention; and March, Godbolt, Brownlow & Goldesborough, Popham, Hutton, Owen, Ley, Lane, Noy, Winch, Hetley, Bridgman, and Bulstrode are in like condition ; though they, to be sure, are books of far inferior merits. However, it was not al- together unusual, even before the passing of the act, to have some sort PEELIMINAKY EEMARKS. 37 judges have said that it was " not authority." The question with us must be, " Is it false ? " 31. Such qualifications as these, it maybe thought, detract largely from the value of the observations made by judges, and partially collected in the following pages. To a certain extent this is true. But there is scarcely less danger in re- garding these observations in too broad a sense, than in not regarding them at all. I heard eminent counsel, for example, once declare at the bar of the Supreme Court of the United States, as a general truth, that the old reporters were not to be credited, except so far as they report what accords with good sense ; and my Lord Hobart is made to declaim somewhat after the same fashion, where he says : ^ " Precedents tant. hahent de lege quant, habent de justitid." But this, certainly, is to make a trim reckoning. Such dogmas, in an unrestricted acceptation, would strike at the root of all authority. Who is to decide how far a report " accords with good sense " ? or how much a precedent may have in it of "justice"? and' how far the reporter or the translator may be in error yet corrigible, or the court in that sort which, as matter decided, must, as a general rule, be followed ? 32. In this matter we can make no such uncircumscribed remark. Erroneous or defective Reports are but the pertur- bations of the law ; and a greater mistake would be made by assuming them as its normal forces than is more usually made of reeommendatoi-y notice from a kingdom and the common law. And person of note. Bulstrode, in 1655, even after the expiration of the Act recommends the 12th Part of of 1662, the same sort of recommen- Coke. " John Clarke," whose car- datory notice by a single individual tificate would appear to have out- sometimes appears; though the old lived his fame, conceives, in 1656, " allowance " from all the judges that Hetley's Reports " may be very was still frequently procured. You useful, and so fit to be printed." even find the practice transferred in Philip Jermin, a judge, in 1646, 1790 to this country. See the first had perused the Lord Hobart's Re- volume of Dallas's Reports, ports, and conceived that the print- ^ Hobart, 270. ing would be for the good of the 38 PKELIMINAEY EEMAEKS. from not introducing them into the investigation at all. We must look at every volume and every case in connection with its circumstances, — circumstances which give to every such matter both distinguishing color and discriminating effect. We must bring to the inquiry all practical knowledge of what has been said about the book ; regarding these declarations, however, not as law, and still less as gospel, but merely as suggestive elements from which to form opinion. We must know the history of the volume, so far as in this day we can recover it ; the habits and opinions of its author, and the circumstances of its publication. And thus, though we may reach neither the comprehensiveness of general conclusion nor the certainty of demonstration, we may yet attain for each case to a measure of probability. In the instance of some single reporters, this may often be done with considerable ful- ness and success ; though to go through the whole body of the early reporters, and for every volume to reclaim from for- 'getfulness a long-fleeted history, this is a task which would be difiScult, indeed, though it is one which, if successfully performed, would recompense great pains. My few notes, let me repeat, are a mere outline ; loose leaves, penned with no profound knowledge of the subject, and deserving no implicit reliance from any one who, after examining the case of a book, may think that he has cause to doubt what I have affirmed of it. Any person, in characterizing one after another a series of works so immensely numerous as the British Reports, must take much of his criticism upon trust. Mine is nearly all so taken. I print in truth, but as the most agreeable form of keeping what I am unwilling to throw away, while I am con- scious that it is scarcely worth preserving. I give it but as an offering from my note-book to any one who, with better skill and more learning, and more taste for the thing, may hereafter perfect the survey of a field upon which, as yet, I have but placed my foot. Using the quaint illustration of Lord Bacon, " I shall content myself to awaken better PKELIMINAEY KEMAEKS. 39 spirits, like a bell-ringer, which is first up to call others to church."-' 33. It is easy, indeed, to conceive how a man unplagued by the claims of professional things, and possessing adequate dis- position, capacity, and knowledge, might expand, and fill, and illustrate this subject. It would grow greatly under his hands. But it is a matter which, if it were well done, could not be done quickly. It would be, in truth, a great effort of profes- sional ability. It would require of whomsoever should under- take it, that first of all he should have read, marked, learned, and inwardly digested the whole body of early reporters, run- ning backward through the course and process of five hundred years. He would have to bring down and centralize from the cognate sources of general and legislative, literary, manu- scriptal, and antiquarian history, whatsoever could shed even a reflected light upon their significance and meaning. He would have thoroughly to study the thousand volumes of modern Reports (multiplied perhaps to a thousand more before he had finished them), and ascertain with perfect precision how far, of later times, the cases of each early reporter had been doubted, denied, or overruled. He should have, above all, the " mind capacious of such things ; " the sagacity to conjecture, and the judgment to consider, and qualities of comprehension and order to combine and arrange his exten- sive lore ; to all superadding such accomplishment and taste as might present the whole with form and finished shape. Such a man will not be seen until we have some Samuel Johnson of the law. 34. Indeed, we cannot long contemplate this matter of The Reporters without framing in our minds something quite be- yond what it is in the power of individual enterprise to achieve at all. And having touched the great subject, let me, in con- clusion of these remarks, and at the expense, perhaps, of close ^ Bacon, xvi. Note A. A. A., Montague's edition, 1827; x. p. 254, Ellis and Spedding's edition. 40 PEELIMINAKY REMARKS. connection, here venture to present for the consideration of other persons at some future time, A PEOPOSITION FOR A NEW EDITION OF THE EARLY REPORTERS, TO BE UNDEKTAKEN BY THE GOVERNMENT OF ENGLAND. 35. The profession needs at the present time, and will con- tinue more and more with each succeeding year to need : — I. An exact reprint of the existing volumes, preserving, as nearly as possible, their identity of paging and other mechan- ism. The earlier Reports — by which I mean those prior to the Revolution — have been constantly referred to by page and case and extract, for more than a century ; many of them for more than two. By page and case and extract they have be- come inwrought through all our law ; through our institutional works, which can never, at once, be displaced ; and through more voluminous productions, which will never again be re- printed. As long as Coke-Littleton, and Blackstone remain text, while Viner shall continue to be a compend of the older decisions, until we cease to cite the hundreds of volumes of Re- ports which give splendor to modern jurisprudence, — just so long shall we have to seek the same page upon the Year Book, the same case in Dyer and Croke, the same extract from Moore and Yelverton, on which our father's eyes have rested, and from which they have drawn that wisdom which we seek. II. Faithful translations of all the Reporters, yet untrans- lated, should be presented in a second series, each volume to be preceded by as full an account of its author and history as could be obtained, its cases throughout to be enlightened by syllabuses ; to be broken up by paragraphs and such other kind attentions as the printer can give, and to be accompa- nied with a table of cases at the beginning, and table of matters PRELIMINARY REMARKS. 41 at the end, — conveniences in which the old books are greatly defective. History somewhere makes mention of a polite ambassador, who, writing a hand so bad that no one could read it, yet always sent to his correspondent, along with a transcript by his secretary, the indecipherable original by his own hand, the former to convey his meaning, the latter to show his respect. It is from somewhat similar doubleness of motive, that with the exact reprint already mentioned, we ought to have such another form as is contemplated in this second series : the originals for legality, the translations for legibility ; the one for common use, the other for severe research. It is known that the Norman French, in which so many of the old reporters are found, is a language sufficiently complete, full, sensible, and easy, to those who understand it ; but, like other languages, dead letter to all who have not learned it. And the inducements to learn, or after having learned, to remember it, are now so few, that tlie majority of lawyers, and even the majority of well-educated lawyers, read it with difficulty and dissatisfaction, if indeed they read it at all. Upon the value of a series such as this second one I need not enlarge. Indeed, so much of our repugnance to reading the old reporters arises from their ponderous size and ill appearance, their acid-stained and dirty paper, their unusual spelling and character, and their unintelligible and obsolete mechanism of every sort, that it is indispensable to our reading them with satisfaction that they should appear more clean, presentable, and in the fashion of the times. And with the completion of but this second series, we should have the whole body of adjudicated law presented to professional research and convenience, in a form at once attractive and intelligible. But the enterprise should not perish here. A matter of importance is, III. A harmony of the Reports. Every one knows that from the time of Dyer to the time of George I. the same cases are constantly reported by different reporters, sometimes by as 42 PRELIMINARY REMARKS. many as half a dozen at once. These reports will purport to be sometimes a report of the whole case, sometimes of a part of it only ; and, to get a full report, you must put the parts together. In the leading case of Manby v. Scott,^ which we have in a certain way, 1 Siderfin, 109, and in 1 Levinz, 4, the argument of Sir Orlando Biidgman, which makes a proper part of it, is to be found in Bridgraan's Judgments ; that of Mr. Justice Sir Robert Hyde, in 1 Modern, 124 ; and that of Hale, Chief Baron, in Bacon's Abridgment ! while disjecta memhra of the corpus of the case are strewn over two report- ers, including two new ones ; Keble, 69, 80, 87, 206, 337, 361, 383, 429, 441, 482, and 1 Modern, 124. Speaking generally, we may say that the older contemporary reports sometimes contradict one another, and sometimes confirm one another even on points which, but for their concurrence, we should think had hardly been decided. It is constantly observable, moreover, that an inferior — and sometimes in itself, only, a positively unintelligible — report will contain certain things which enlighten and render more complete another which, as a whole, is much more accurate and valuable. Besides this, one reporter will give you the judgment of the court, in the form of an abstract principle ; another will state you the facts on which it went ; a third perhaps record the argument of counsel ; a fourth, last of all, supply something omitted by each of the others. Many, too, are mere copies, and all derived from perhaps an erroneous original, sometimes being copied literally, and sometimes abridged. There are many reports in Cun- ningham which reappear with no alteration or with but little, in 7 th Modern, in Ridge way, and in Annally's Hardwicke. Several cases are found totidem verbis in Equity Cases Abridged, in Precedents in Chancery, and in Gilbert's Equity Reports. Several in Hetley may be found in nearly the same form in Littleton ; several in Palmer, in Latch ; and several in Yelverton, and in Brownlo w & Goldesborough. As for particu- 1 See 1 Smith's Leading Cases, 2S2, note. PEELIMINAEY KEMAKKS. 43 lar cases, those in one book are constantly found repeated in another. Yates v. Fettiplace, in 1st Lord Raymond, 508, is given totidem verbis in 12 Modern, 276 ; Shaw v. "Weigh, in Fitzgibbon, 7, and Bentley v. Bishop of Ely, in Strange, 912, are almost transcripts of the same cases in Fortescue, 58 and 298, as Bunker v. Cook, and Archer v. Bohenham, in Fitzgib- bon, 225 and 233, are of the same cases in 11 Modern. In most of these instances the reports were doubtless copied from one another, or from some common original. Without con- nection with the book in which they are originally contained, all the contemporary reports of the same cases should be arranged in parallel columns, or in some other form of juxta- position, by which the case might be seen through all the narratives at once. It would thus be easy to get a full re- port, and, in a good degree, to determine what was original and what was copied. The process of arrangement to which I refer is one perfectly familiar to the biblical student, as that by which the " Harmonists," at various times, have reduced to a single view the different narratives of the evangelists. Perfectly to complete the collection there should be IV. A recompilation or monograph of the Reports, which would be made, of course, in the largest degree, out of the pre- ceding works, but to a considerable extent also out of MBS., an immense body of which, as the reader will perceive by looking at the Appendix to this work, still exist in England, many of them containing better reports than any that have ever been printed. This recompilation would be made, of course, from a collation, comparison, and recast of the whole material brought together, than doing which nothing tends more to enlighten a bad report, and sometimes to exalt the value of even a good one. It would make the most authoritative reporters the basis of the new series ; remembering, however, even in these, where particular reports had been questioned, the remark of Lord Mansfield,^ " that it is impossible for any man to 1 4 Burrow, 2068. 44 PEELIMINARY REMARKS. take down in a perfect and correct manner every obiter saying that may happen to fall from a judge in a long or complicated delivery of his opinion and the reasons of it," and trying how far contemporary reporters, in general less accurate, of the same case, contradicted, enlightened, or explained what was thus doubted, and bringing high intelligence and a thorough examination of the original record of the case to preside over and to guide the whole. In this, the fourth series, the cases should be reported anew fully, and in an orderly, clean, and modern mannei', with the names and offices of counsel and judges, with dates and all such notes and marks, suppliances and developments, as would make the report clear, natural, and easy to be read ; each case so reported to be accompanied by pervading and accurate reference to all prior and subse- quent decisions. If such a recompilation or recast were made, it would become, from thenceforth, the great referen- dary of the profession. In all subsequent treatises and opinions it alone would be the record of decisions ; the three preceding series would be preserved but for elucidating exist- ing books, and by way of certification and proof of the new recompilation. A work of this sort would be of infinite value. It is for that service of order, and series, and connection which, among other qualities, would mark this last compil.ation, that in another, the sacred department of literature, the venerable Lightfoot has left a name that two centuries has had no power to touch, and which every one who seeks to attain to knowledge of God's Truth must continue to revere, so long as there shall remain any virtue or anj- praise. The idea which, as to this series, I have in my mind will be readily understood by any one who has seen the Chronicle of Dr. Lightfoot, or, yet better, the more recent Arrangement of the Old and New Testaments by the late Dr. Townsend, Prebendary of Durham. It is not too much, I think, to say, that by the mere force of clear and sequent narrative, by ar- ranging in chronological and historical order the scattered PKELIMINAEY EBMAEKS. 45 relations of the sacred volume, these learned divines have assisted more to give men and women intelligent knowledge of the sacred history than has been done by all the commen- taries and annotations that have ever appeared. 36. Beyond these four series, — each referring minutely and at every step to all the others, — no essential improve- ment, I think, can be made. I forget not, of course. Lord Bacon's " Proposal for the Improvement of the Law ;" ^ but the cases of identity, which are best reported and argued, to be retained instead of the rest; 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 repeti- tion, part of new matter, tlie repeti- tion is only to be omitted. " Thirdly. As to the ' Antino- micE,' oases judged to the contrary, it wei-e too great a trust to refer to the judgment of the composers of this work, to decide the law either way, except there be a current stream of judgments of later times; and then I reckon the contrary cases amongst cases obsolete, of which I have spoken before; nevertheless, this diligence would be used, that such cases of contradiction be spe- cially noted and collected, to the end those doubts, that have been so long militant, may either, by assembling all the judges in the Exchequer Chamber, or by Parliament, be put into certainty. For to do it, by bringing them in question, under feigned parties, is to be disliked. ' Nihil habeat forum ex scene' " Fourthly. All idle queries, which are but seminaries of doubts and uncertainties, are to be left out 1 " There is to be made," he, "a perfect course of the law ' in serie temporis,' or Year Books, as we call them, from Edward I. to this day. In the compiling of this course of law, or Year Books, the pftints following are to be ob- served: — " First. All cases which are at this day clearly no law, but con- stantly ruled to the contrary, are to be left out ; they do but fill the volumes and season the wits of students in a contrary sense of law. And so, likewise, all cases wherein that is solemnly and long debated, whereof there is now no question at all, are to be entered as judgments only, and resolutions, but without the argu- ments, which are now become but frivolous; yet, for the observation of the deeper sort of lawyers, that they may see how the law hath altered, out of which they may pick sometimes good use, I do ad- vise, that upon the first in time of those obsolete cases, there was a memorandum set, that at the time the law was thus taken, until such a time, &o. " Secondly. ' Eomonymice,' as Justinian calleth them; that is, cases merely of iteration and repeti- tion, are to be purged away; and 46 PEBLIMINAKY EBMAEKS. it has always appeared to me that in this proposal the great Chancellor went beyond what was practicable, and by en- deavoring, in a great degree, to codify the common law, destroyed, as we know that he failed to secure, the success of a splendid design. The idea of Lord Bacon partook too much of the splendid visions of his New Atlantis. It could not have been "completed without universal agreement upon ques- tions throughout the course of adjudicated law, upon many of which there will ever continue to be, as there ever has been, a difference of conclusion ; questions, indeed, which belong not so much to the imperfections of-the law, as to the infirmity of man's mind. If the project had been accomplished, it could never have superseded the older books, nor our inconvenience in referring to them. It could, at best, have served but for a comment of authority upon them. It was codification in effect, and therefore in effect impossible, — and failed. In- deed, I think it clear that nothing can be done which shall render worthless, or even of unessential importance, the older reporters as now we have them.* and omitted, and no queries set be rectified. The course being thus down but of great doubts well de- compiled, then it resteth but for bated, and left undecided for diffi- your Majesty to appoint some grave culty; but no doubting or upstart- and sound lawyers, with some honor- ing quei-ies, which, though they be able stipend, to be reporters for the touched in argument for explana- time to come, and then this is settled tion, yet were better to die than to for all time." (Proposal for Im- be put into the books. provement, &o. Bacon, v. p. 347, "Lastly. Cases reported with too Montague's edition, 1827; xiii. p. great prolixity would be drawn 68, Ellis and Spedding's edition.) into a more compendious report, not ^ An illustration occurs in Lum- in the nature of an abridgment, but ley v. Gye, in the Queen's Bench, tautologies and impertinencies to be Trinity Term, 1853, 2 Ellis & Black- cut off; as for misprinting and in- burn, 216, in which, upon a suit by sensible reporting, which many Mr. Lumley, the manager of the times confound the students, that Queen's Theatre, for enticing away ■will be obiter amended; but more from his troupe a celebrated opera principally if there be anything in singer, we find Mr. Justice Cole- the report, which is not well war- ridge citing, with the utmost pro- ranted by the record, that is also to fusion and freedom, — translating PRELIMINARY REMARKS. 47 Lord John, afterwards Earl, Russell, indeed, who in his day inherited the wisdom which characterized his ancestor, the " Noble Lord " of Burke's, has uttered, I am aware, quite different thoughts from these. "I venture to say," observed this democratical lord at Liverpool,^ after a eulogy on Napo- leon I., — "I venture to say that if four or five persons of com- petent qualifications were appointed as commissioners, they would in a few months make an actual commencement, and in a few years present to Parliament a complete code, worthy of the country, simplifying and improving our laws upon principles fit to be adopted in an enlightened age, and founded on the solid masonry of our ancient legislation." We in America, where codes have several times been tried, and as often have been found wanting, know much better than this. We have learned experimentally the wisdom of our own Cliief Justice Gibson's remark, that " a system, complete in all its parts, cannot be struck out at a single heat by the most able lawgiver that ever lived." ^ More doubt, more dispute, has arisen in one year upon codes with us, than before them arose in five upon the common law. And now while wise men would consolidate statutes everywhere, they codify the common law scarcely anywhere. " No doubt, a code of some sort could be made for Great Britain in the time named by Earl Russell. Trebonian and his seventeen colleagues digested them, page after page, — cases from the case of singers of our own less the Abridgments of Brooke and pious times, and to the engagements Fitzherbert, and from the earliest as of Madame Mara, Mademoiselle from the latest of the Year Books. Wagner, and others of the prima It is interesting, indeed, to see with donnas and dramatic artists of our what apparent ease he handles them, infidel days. and how he applies old cases from i A.D. 1857. See " The Times " the days of the Church's catholicity, of October, 1857, from which most and decisions as to whether or not of the remarks which follow my the chaplain, who is " the servant of quotation from Earl Russell are God," is bound to sing in mass every taken. day, — ' ' for at one time he is disposed ^ 8 Sergeant & Kawle, 378. to sing it, and at another not," — to 48 PKELIMINAEY BBMAEKS. two thousand volumes of laws and legal opinions in four years, and in twelve years from the date of the Imperial letter Justinian could declare all laws abrogate not contained in his Code, his Institutes, or his Pandects. We know, also, that only ten years elapsed between the order for the commence- ment of the Code Napoleon and the promulgation of the last chapter. England might be able to choose from her bench and bar men equal to Trebonian and lais underworkers ; she might possibly be able to fill up a commission with men not inferior to Tronchet, Roederer, Portalis, Thibaudeau, Cam- bac^r^s, and Lebrun ; and in all probability that commission would compile a code. But after it was all made, — after the compilers had done their work, the question would still remain, — how shall she test it ? Shall Parliament adopt it ? What Englishman of sense would risk his estate, his family ties, his commercial interests, his testamentary powers, his personal liberty, his life, upon the unfailing accuracy of the authors of the new code ? "However much, therefore, England might desire a code, there would be fears stronger than that desire. The code is all complete. But when a country gentleman would look at his muniment-room, and remember the mysterious manner in which his lawyers have spoken to him of the various incidents of title which affect his simple and customary freeholds, his lands in ancient demesne, his copyholds, his commons, his free warrens, his several fisheries, his commons of fishery, and his free fisheries, and when he would remember the wonder- ful scaffolding of trusts which is built up in his marriage settlement, he might very well suspect that the codifiers might have omitted some pin or left out some little wheel in their new machinery, and that some dull morning he might wake to find that the new code had not kept poachers from his fisheries and free warrens, nor encroachers ^from his commons, nor squatters from his freeholds; or that it had even allowed some trustee to convey the legal estate away in the conven- PRELIMINARY EEMAEKS. 49 tional, but not the technical, sense of the term. Even mer- chants have their cautious moments, and charter-parties and insurance policies would not be trusted to the new code with an easy confidence. I believe that in England a code is a chimera fit only to make periods for an aspiring commoner or a demagogue lord ; and that if it were ready to-morrow, no man would dare to take the responsibility of pressing it on, to the extinction of all existing law, and no minister would be powerful enough to pass it. The fact is, that both Trebonian and Lebrun codified under very different conditions from those in which any codifiers would make their effort in Eng- land. Rome may be said to have had no law when Trebonian began to codify. The Twelve Tables and the Praetorian edict, with the text-books of Papinian and Ulpian, were not laws by which the Praetors were bound. Each made his own law, and broke it by his own decisions. So when, on ' the 24th Ther- midor, in the year VIII.,' the order of the Consuls was directed to the Minister of Justice, France was without any law whatever. The Abb^ SiSyes and the National Assembly had in two evenings cleared away the whole law of France, — courts, titles, feudal jurisdictions, tithes, churches, and all. There was nothiqg to destroy ; there was full space to build. And there was that which has never existed even in Crom- well's time in England, nor during British sovereignty with us, — the power of enactment. Trebonian had Justinian behind him, and Lebrun had Napoleon behind him to stamp their work as they went on, and to impose it upon their subjects, not as a question to be discussed, but as a mandate to be obeyed." ^ 1 " The result of these experi- they have come to our knowledge, to ments in the department of plead- destroy the certainty and simplicity ing,"saidMr. Justice Grier, speak- of all pleadings, and introduce on ing for the judges of the Supreme the record an endless wrangle in Court of the United States (McFaul writing, perplexing to the court ; V. Ramsey, 20 Howard's Supreme delaying and impeding the adminis- Court, 525), "has been, so far as tration of justice. In the case of 50 PEELIMINAEY KBMAEKS. The Reports may become — they have become — greatly antiquated. They will become more so ; but in the keen re- search of an intellectual profession they must ever be referred to as they appear in their source and spring ; and the endeavor of -wisdom should therefore be, not to change, but to present them. I do not forget that the law is in a constant state of transition ; that even now it has ceased to be a fixed and exact science, and that we appeal to precedents' more as corrobora- tions of argument than as conclusive of truth ; that with the disuse of old actions and the introduction of new the princi- ples of the systems which crystallize around its forms are con- stantly broken up and reshaped, and that through progressive developments it may at last be translated to new conditions of existence. 37. But I say, that to obliterate the records of the old Reports is impossible. You might as well repeat the folly of revolution- ary France, and begin anew with the year " One." In the physical world, every vestige of the ruined past maybe swept away. Not so in the intellectual and moral. As now the old Reports are, so will they continue to be, — in every state, — Kandon v. Toby (11 Howard's Su- the cause without reference to these preme Court, 517), we had occasion conti-ivances to delay and impede a to notice the operation and result of decision of the real controversy be- a code. In a simple action on a tween the pai-ties. In the case of Ben- promissory note, the pleadings of nettw.Butterworth (11 Howard's Su- which, according to common-law preme Court, 667) , originating under forms, would not have occupied a the same code, the coui't were un- page, they were extended to over able to discover from the pleading twenty pages, requiring two years of the nature of action or of the remedy wrangle with exceptions and special sought. It might, with equal prob- deraurrers, before an issue could be ability, be called an action of debt, formed between the parties. In or detinue, or replevin, or trover, or order to arrive at the justice of the trespass, or a bill in chanceiy. The case, this court was compelled to jury and the court 'below seemed to disregard the chaos of pleadings, have labored under the same per- and eliminate the merits of the case plexity, as the verdict was for twelve from a confused mass of _^i!^ special hundred dollars, and the jttdgmentioi demurrers or exceptions, and decide four negroes ! " PBBLIMINABY REMARKS. 51 the cradle of our jurisprudence. In the law, the present is ever born of the past. " It is there," to use another's lan- guage,! " that it had its infancy, that the foundations of its being were laid ; and it is there, and there alone, that we can trace its pedigree and test its legitimacy." And because the system is ever in progressive change, and we are no longer, like our fathers, familiar with the older books as of course, it is, I think, that" we should know them in a measure by constraint. We may be assured that others will know them, that others will use them, that others will be ready to pervert them ; and the danger consists, not so much in the darkness of universal nescience, as in the glimmering and distorting light of defective knowledge. The ignorance which at one time works its ill through contemptuous or unthinking disre- gard is manifested at another in blind dependence ; for superstition is the elder and strongest sister of presumption, as both alike are the children of ignorance. I need not urge, I am sure, that no philosophical knowledge of the law can ever be had without reference to its origin and history, to the elements of its composition and the strata of its growth. The best proof of all law — the only proof of much law — • are the forms of action, matters which have their foundations in the early decisions ; and principles are thus often rested upon what appears to be a base that is purely and sometimes absurdly technical. Could we have the Year Books (in their present state very difficult to be under- stood by any one) well presented to us, — Reports in which pleadings are largely and constantly discussed, — and see, in the development of their latent wisdom, with what intelligence, with what constant reference to substantial justice and to home-bred convenience, all these things were conceived and settled, — could we go to the foundations of things, and see how often the " old and narrow ordinances " of the law are designed and adapted to fix and to guard its vital princi- 1 Rev. H. N. Hudson's. 62 PEBLIMINAKY REMARKS. pies of equity and reason, — we should understand how it is that a precedent becomes of value, and that the common law has received its eulogy of being in its every part at once " the transcript of the highest rules of right and the consummation of experimental wisdom." We should seek no higher argu- ment than precedent, because we should feel and should know that precedent was itself the embodiment of all argument, and the form into which, however repeated, it would ever be resolved. 38. In making such a body of Reports as are presented in the foregoing sketch, little is requisite beyond intelligent labor, — labor in the first place, thoroughly to learn the older books ; to copy, verify, and translate ; intelligence to arrange, supply, refer, and perfect. The profession in England contains a hundred men in each generation of it, any score or decade of whom, if devoting themselves to the enterprise with a tithe of the fidelity which has marked the Record Commission, would in half a century — perhaps in half that time — raise a monument that should be seen in distant lands, and by ages yet to come. The undertaking, of course, would quite tran- scend the resources of individual ability, and might exhaust " the hour-glass of one man's life." It could be achieved only by the enterprise of government delegating unstinted resources through the agency of commission, to be renewed, if necessary, from generation to generation, till the whole was fully accom- plished. But is it not an enterprise which would well become the Parliament of England ? ' What Englishman, as who 1 We find at this day, even in tlie general recollection recalls to me, for ranks of the peerage, many of the example, that Loi'd Monson, Lord immediate representatives of the Brooke (the princely heir of War- older reporters, who, it might be wick), and the Earl of Mexborough, naturally supposed, would regard it are all descendants of Saville; as as both a duty and a delight to Lord Monson, with the Earl of Yar- rescue their ancestralfarae from the borough, and Lord Sondes, also, is discredit which in many oases has of Anderson ; the Earl of Bucking- attached to it by these posthumous hamshire, and the Marquis of and unprepared publications. My Lothian, of Hobart; the Earl of PEELIMINAEY KEMAEKS. 53 among us, — the inheritors as much exactly as they of Eng- land's ancient glory, and escaping only her " modern degene- racy," if such exist, — can survey the long line of the early English judges, as displayed in the learned labors of Mr. Foss, and reflect that they held their offices only at the royal will, — the will of tyrants mostly, — and not glow with pride that among so many names there attaches to so few aught which dishonors justice.^ Centuries before the administration of equal law between sovereign and subject, or between noble and simpler citizen, was known in any part of Europe, the judges of our fatherland were laying down doctrines worthy of a nation of freemen, the progenitors of a people freer still than they. Listen to these declarations : — " The law of God and the law of the land are all one, and the one and the other prefer the common and public good of the land." ^ "The common law hath so admeasured the king's prerogatives, that they shall not take away or prejudice the inheritance of any." ^ " Arbitrary imprisonment is unknown to the law." * " The air of England is too pure an air for a slave to breathe." ^ " A royal proclamation is incompetent to make new law, or to impose fine, forfeiture, or imprisonment." ' Huntingdon, of Davis; the Earl of xii. p. 261. See also Law Magazine Verulam, of Croke; the Earl of andLaw Keview, ix. p. 321.) Note Leicester, of Coke ; the Earl of Clare, to the edition of 1855. and Baron Decies on the Peerage of i See the Law Magazine and Law Ireland, of Fitzgibbon; the Baroness Review, vi., New Series, p. 90, from de Grey Ruthyn, and the youthful which I draw some of these re- Marquis Hastings, of Yelverton ; the marks. Earl of Bradford, of Sir Orlando 2 pineux, C. J. , Keilwey, 191 a. Bridgman ; and the Earl of Lis- s Berkeley's Case, Plowden, 236. burne, of Vaughan. Doubtless there ' Year Book, 22 Edw. IV., fol. are others which escape my memory. 37, pi. 21 ; Year Book, 1 Hen. VII., (Note in 1843.) fol. 4; Plowden, 235; 1 Anderson, The whole subject of reporting 152, 297; Hobart, 61. and Reports has of late attracted ^ Cartwright's Case, decided 11th some attention in England, and a Elizabeth, 2 Rushworth's Collec- completerevisal of existing volumes, tions, 468. See 20 Howell's State and a new plan for future ones, is Trials, 51. strongly recommended. (Law Mag- « Dalison, 20, pi. 10, 3 Philip & azine, xl. O. S. 1848, p. 1; Law Mary. See 12 Reports, 74; 2 Review, vii. p. 223, x. p. 395, and Howell's State Trials, 723. 54 PEELIMINAKY EEMABKS. " The king's grant is of no power to prejudice the subject's inter- est." i "No statute is to be extended to life by doubtful words." ^ Such are the proud records which are preserved in the pages of the early reporters, — records of principles finally- established in practice by the judges themselves, unaided by Parliament, and in times when, as we have remarked above, the occupants of all the courts sat at the will of tyrants only. It is when we read such declaratipns that we fully understand what the great philosophic statesman of that country means when he tells us, in words which can never die, that English jurisprudence has not any other sure foundation, nor conse- quently the lives and properties of the subject any sure hold, but in the maxims, rules, principles, and juridical traditionary line of decisions contained in the notes taken from time to time, and published mostly under the sanction of the judges, called Reports.^ We can readily comprehend why in this our western world the strain of noble thought has been taken up and carried onward ; and that in closing his fine remarks upon the respective merits of the reporters of England, Chancellor Kent is forced to forget their differences of every sort ; and pausing to cast his retrospective view upon them, as a vener- able and harmonic whole, breaks forth with the ardor of genius into the language of eloquence and sensibility and vir- tue : " They abound," declares this eloquent scholar,* " in pa- thetic incident and displays of deep feeling. They are faithful records of those ' little competitions, factions, and debates of mankind,' that fill up the principal drama of human life, and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-in- terest, the melancholy perversion of talent, and the machina- tions of fraud. They give us the skilful debates at the bar I Year Book, 13 Edw. III., fol. = Burke's Works, vii. p. 554, 40. Boston, 1834. ^ Courteen's Case, Hobart, 270. * 1 Commentaries, 496. PBELIMINAEY BEMABKS. 65 and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interest- ing, because they contain true portraits of the talents and learning of the sages of the law. . . . Nor do I know," he continues, " where we could resort, among all the volumes of human composition, to find more constant, more tranquil, and more sublime manifestations of the intrepidity of conscious rectitude. If we were to go back to the iron times of the Tudors, and follow judicial history down from the first page in Dyer to the last page of the last reporter, we should find the higher courts of civil judicature, generally, and with rare exceptions, presenting the image of the sanctity of a temple, where truth and justice seem to be enthroned, and to be per- sonified in their decrees." 39. Surely it cannot be other than an ennobling and a pa- triotic office thus to contemplate generation after generation of a nation's judges handing onwards to one another the rec- ord of lofty principles KaOdirep XaiMtrdBa top /3iov 7rapaS6vra<; aXXoii i^ aXXcov OepanTevovTWi del 6eov 1 Siderfin, 465. Sed vide Sir Thomas Raymond, 186. * See infra, Appendix. PALMER. — FIRST OR "W. JONES. 255 authority,^ though a somewhat different idea, as to this last point, seems to be conveyed by C. J. Parker ; or, at all events, as to the earlier cases in the volume.^ Palmer, it is said, began reporting when he was 22 years old, and died at the age of 72. If these facts are so, at least two of his cases are ex relatione alterius. From the preface to the book it would seem that the editor, whoever he was, did not desire to give any report by Palmer of a case already in print, unless his report was fuller and better than that of the printed reporter. There are but few marginal references to other cases, and not one to same case anywhere. (Edns. : The volume, a folio, has been but once printed, though it bears the different dates of 167.8, 1688, and 1721. Some copies have a finely engraved portrait, by WhiteJ FIRST OR SIR WM. JONES. K. B., C. P., HOUSE OF LORDS, AND EX. CH. 18 Jac. I. —17 Car. I. (1620-1641). Sir William Jones was born, 1.566, at Castlemarch, an ancient seat of his family, in Caernarvon, in Wales. After his primary education, he was sent to Oxford, where he continued for five yeans, and was thence transferred to Furnival's Inn, where he passed two years, preparatory to his admission, in 1587, to the principal society of Lincoln's Inn. Entering about this time, I suppose, upon the practice of his profession, he appears to have pursued it without eventful vicissitude during a term of near thirty years ; though not, I should infer, with much progress at first, as he had nearly reached his 50th year before receiving a Ser- geant's degree. He was in Parliament during a part of this J 1 Commentaries, 487. ' 1 Strange, 71. 256 THE COMMON-LAW BEPOKTEES. time, where Lord Bacon describes him as an " opposite," — an English, and a milder type, I suppose, of what in Scotland was known as a " malignant." With the degree of Sergeant, and as requisite to the higher distinction that followed, he was appointed, in 1617, Chief Justice of the King's Bench in Ireland. Bacon's speech to him, as Chancellor, yet pre- served,^ on delivering to him his commission, shows that great expectations were formed, not only of his abilities as a lawyer, but of his vigor, comprehension, and prudence, as a counsellor of State. There seems to have been a verj^ good feeling between the parties, as after Jones went to Ireland, they corresponded by letter with each other.^ He remained in his Irish preferment but three years, having left it to return to England, where he was at once appointed, 1620, a Judge of the Common Pleas. His return home would appear not to have been caused by dissatisfaction with his administration in Ireland, as he was twice appointed, in the ensuing three years, upon commissions to improve the state of that country, and was again sent there to assist in giving them practical execution. After his last return, he was transferred, October 18th, 1624, to the King's Bench, where he continued for the residue of his life. He died December 9th, 1640, in the 74th year of his age, not having added, says his biographer,^ during two and twenty years that he sat upon the seat of judicature, £200 a year to his paternal estate ; and " expressly forbidding any monument to be erected for him, lies buried, by his own appointment, under the Chappel at lincoln's Inne." To Mr. Foss's Judges of England * we are indebted for 1 Bacon, vol. vii. p. 263, Mon- * Preface to W. Jones, whence tague's edition, 1827 ; vol. xiii. p. most of my particulars are taken. 205, Ellis & Spedding's edition. * As reviewed in the Law Maga- '' Bacon, vol. xii. 352, Mon- zine and Law Review, vol. vi. p- tague's edition, 1827; vol. xiii. p. 49. 310 and note, Ellis & Spedding's edition. riEST OR "W. JONES. 257 an interesting incident in Jones's life. Some of the Judges of the King's Bench had given, in 1628, a decision in a case before them, which dissatisfied the House of Lords. Jones — as one of the Bench — was accordingly summoned to their bar to give an account of the grounds on which the decision was made. The act of the House was at variance, of course, with the English Constitution, and with the vital principle of all good government which makes the judicial body inde- pendent of the legislative. Jones appeared before the House, and, no waj'S overawed, carried himself with the dignity that became his office. He asserts his constitutional right as a Judge ; he states his responsibility to God and his conscience for his conduct on the Bench. He adds, — " I am mj^self Liber Homo. My ancestors gave their voice for Magna Charta. / enjoy that house still which they did. I do not now mean to draw down God's wrath upon my posterity ; and therefore I will neither advance the King's prerogative, nor lessen the liberty of the subject, to the danger of either King or people." These were manly tones for the Stuart times ; worthy, almost, of the era of 1688, when the Bench was able to rise to its full dignity. They probably laid the foundation for the principles boldly enunciated in 1692 by Chief Justice Holt, when called to the bar of the House to explain the grounds of the judgment which he had given in treating the decision of the Lords in a question relating to the Banbury Peerage Case, as no judgment, but only an opinion. This great lawyer of the Revolution " calmly and firmly set the Lords at defiance ; telling them that he owed it to the dignity of his place and the laws which he had to administer, not to account to them in that extrajudicial manner ; but if the prosecutors were dissatisfied, they might bring a writ of error, and then he should be prepared, in the regular form, to give the reasons of his judgment." ' But in Sir William Jones's days the independence of the Bench was less secure. 1 Burke's Extinct and Dormant Peerages, tit. " Knowlton." 17 258 THE COMMON-LAW EEPORTEES. The Reports of this venerable magistrate comprise cases throughout the whole of his judicial tenure in England, whether in the Common Pleas or the King's Bench ; the former occupying about a 9th part of the volume, and the latter the principal portion of the residue. In one part of the boolc^ are the reporter's "Notes taken at a justice seat for the forest of Windsor." They contain quaint and enter- taining memorials of suits about their " deeres " and their " dogges," in the days of Charles I., between Lord Lovelace, Sir Charles Howard, and many young gentlemen, foresters and verderers of that beautiful domain, who fleeted their time carelessly as they did in the golden world. An American lawyer might almost fancy, as he reads these forest suits, unlike to aught in a land where " the talk is of cotton," that he was entertaining the time with some historic fiction from the novelist's page ; or that Walter Savage Landor, perhaps, having- immortalized " Imaginary Conver- sations," M'as giving to the world new treasures of his genius, in " Imaginary Lawsuits." On a former page ^ I have copied, not without compunction, the abuse which others have re- corded of Attorney-General Noy : let me here make atone- ment, and by inserting one of these curious "forrest cases," do honor to a touch of humanity which, I presume, he would not have been unwilling to record of himself. Every one who loves the melancholy Jacques, in those " sullen fits," when, full of matter, "most invectivelj' he piercetli through The body of (he country, city, court, Yea, and of this our life, swearing that we Arc mere usurpers, tyrants, and what 's worse, Tofru/kt the animals, and to kill them up. In their assigned and native dwelling-place," will thank me, I am sure, for transcribing out of Jones, > Pages 266-298, and see page 347. » Supra, p. 156. FIEST OR "W. JONES. 259 Sir Sampson Dareell's Case. Sir Sampson Davrell was fined £5 for erecting a windmill in Ms own ground, within the forrest, and Mr. Attorney * said, it ought not to be done, because it frighted the cf^er, and also drew company to the disquiet of the yame. In addition to Jones's own Reports, we find at page 96, one which he records that he received from Chief Justice Crew. It is of the memorable case between Lord Willoughby of Eresby, and De Vere, Earl of Oxford, concerning the title to that great and venerable earldom. The Judges were divided in opinion, and the opening part of the Chief Justice's argu- ment before the House of Lords, although some of his dicta have been denied in later times,^ will not, I venture in tran- scribing it to believe, be read without emotion by any man who has admired the genius of Shakspeare, of Bacon, and of Walter Scott. " My Lords, this great and weighty cause, incomparable to any other that hath happened in way time, requires great deliberation, and solid and mature judgment to determine it ; and therefore I wish all the Judges of England had heard it (being a case fit for all) , to the end we altogether might have given our liumble advice to j-our Lordships herein. Here is represented unto your Lord- ships Certamen Honoris, and, as I may well saj', Illustris Honoris, Illustrious Honor. I heard a great peer of this realm, and a learned, say, when he lived, there was no. king in Christendom had such a subject as Oxford. He came in with the Conqueror, Earl of Gwynes ; shortly after the Conquest, made Great Chamber- lain of England, above five hundred years ago, by Henrj' the First, the Conqueror's son, brother td Rufus ; by Maud, the Empress, Earl of Oxford ; confirmed and approved by Henry fitz Empress, Henry the Second, Alberico Comite, so Earl before. This great honor, this high and noble dignitj-, hath continued ever since in the remarkable surname of De Vere, by so many ages, descents, and 1 Noy. ^ pp. 174, 181, 183, 193; and Appen- 2 Sir H. Nicolas's Report of the dix, pp. clxi, clxvii, clxviii, clxix, Earldom of Devon, London, 1832, clxx. 260 THE COMMON-LAW EEPOETEES. generations, as no other kingdom can produce such a peer in one and the selfsame name and title. I find in all this length of time but two attainders of this noble family, and those in stormy and tempestuous times, when the government was unsettled and the kingdom in competition. " I have labored to make a covenant with m3'self, that aifeetion may not press upon judgment ; for I suppose there is no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine-thread to uphold it. And yet time hath his revolution ; there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene ; and vihy not of De Vere ? For where is Bohun? where 's Mowbray ? where 's Mortimer? &c. Nay, which is more and most of all, whftre is Plantagenet ? They are in- tombed in the urnes and sepulchres of mortalitj'. And yet let the name and dignity of De Vere stand so long as it pleaseth God." This volume is sometimes cited as first Jones, sometimes as W. Jones, to distinguish it from second, or T. Jones. Clarke, the bookseller, mentions in his Catalogue, that in Easter Term, 3d W. & M., it was declared by the whole court, that this book was " very judiciously written." And it is said in another place,^ that when a case in Jones was questioned as anonymous, Lawrence, J., observed that Jones was not a reporter to mistake the law of the case, though he might not have heard the name. The book is one of undoubted genu- ineness, having been printed from the author's MS., which came to the hands of his daughters, the executors of his will ; and this lady supervision of the press may possibly account for a remark of Lord Nottingham's,^ that there is " no book of law so ill corrected or so ill printed." As, however, in the case of Vaughan's Reports, so these of Sir William Jones were not printed by the Crown printer, — a fact mentioned in other Reports as noteworthy,^ and pos- i American Jurist, vol. xii. p. " Select Cases in Chancery, 34. 39. See infra, tit. " Vaughan." FIRST OR "W. JONES. — WINCH. 261 sibly indicating something slightly irregular in the issue of the work. It is noted by the curious that the reports of Sir William Jones and of Sir George Croke end nearly at the same point of time. The last " S. C." in both books is Meade v. Len- thall, Cro. Car. 587. Sir W. Jones's is noted at page 463, after which only six cases are reported by Croke. A few copies of W. Jones contain an exquisite portrait, by Sherwin, but these are not common. (Edns. : Fr., fol. 1675.) WINCH. 0. P. 19 Jac. L— 1 Car. I. (1621-1625). Principally touching declarations. The cases in this volume, according to Lord Kenyon,^ " are in general well re- ported." The}'^ are much better stated, and have much more the shape of reports, than is the case in some other volumes printed about this time. It is said, however, by Mr. Rowe, in the preface to Benloe & Dalison's Reports, that the volume is improperly attributed to Winch. It is obvious in the reports themselves that Winch did not '■eport them all, since his own death is recorded in the progress of the de- cisions, — an event which took place, it appears, on the 4th day of February, 22 Jac. I., "in the morning, as he was making readie to go to the hall." And of those cases decided in his lifetime, the same thing is manifest from casual expressions in the book ; as at page 10, where the reporter says : " I saw Hobert show presidents to Winch, and he said to Winch," &c. The curious and indefatigable Mr. Umfreville, who, in his peculiar department, was scarcely less remarkable than ChampoUion in Ms, gives us the name of the real author; 1 6 Term, 441. 262 THE COMMON-LAW EEPOETEES. pronouncing with great confidence, that though published as Judge Winch's, these Reports sire in fact Mr. AUestree's. The book is a translation from a French original, never pub- lished. There is another book bearing Winch's name, and called Winch's Entries. This book, Sir Thomas Raymond ^ treats as genuine ; and from a record in it^ overthrows the case of Selby V. Shute, as reported by Moore, Rolle, and Brownlow, upon the ground that Winch was one of the Judges who gave the judgment. So, too, in the Term Reports,® Lawrence, J., cites the same book as controlling and limiting the report of Woodley v. Bishop of Exeter, in Cro. Jac. 691, and Winch, 94. Winch was at one time Chief Baron of the Exchequer in Ireland, and afterwards Chief Justice of the King's Bench there. (Edns. : Fol. Eng. 1657.) GLANVILLE'S ELECTION CASES. 21-22 Jac. I. (Edns. : London, 1775.) LATCH. K. B. 1 Car. I.— 4 Car. I. (1625-1628). In the preface to Palmer's Reports it is more than inti- mated that Latch, forming rather large ideas of what is implied by the liberty of transcript, had stolen one hundred and twentj'- of the cases from Palmer's note-book, which Palmer had unsuspectingly lent him, and claimed them as 1 Page 371. '^ Page 116. • Vol. vi. p. 442. LATCH. 263 his own. There is some evidence, however,^ that none of the cases — none of the earlier ones, at least — were taken hy Palmer, who, on the contrary, had himself obtained them from Godfrey ; ^ and there is no evidence that Palmer ever meant to publish them, nor indeed that Latch did those which he took. The work was brought out by a posthumous editor, Edward Walpole. In the preface to Palmer, it is said, somewhat snarlingly, that the cases in Latch are transcribed " corruptly enough." The book, though called Latch's Reports, is , confessedly but a copy made by Latch from some other book ; ^ and not having been published during Latch's life, " nor corrected by the parental hand, the want of the finishing touch," saj'^s Mr. Francis Xavier Martin, " is in many parts glaringly conspicu- ous." The work is ranked by Mr. Bannister, an editor of Sir Orlando Bridgman, as among the "least accurate " of all the reporters.* Latch's cases, like those in Noy, and many of the old note- takers, as distinguished from the reporters,- are of very different sorts. Sometimes, though not often, there is a full and pretty sensible case ; then a good many cases in which you have nothing but some abstract point of law in two or three to half a dozen lines, without either statement of case, argument, or judgment ; being generally what Jones, or Crew, or some other Judge says, and looking much as if the re- porter had come into court during the delivery of an opinion, heard, while sitting there, some point of law which struck him, made an informal memorandum of it, and then put on his hat, and gone away again. Then there are reports, like Evans v. Ascough,® where " le case est come jeo ay oye ; " being 1 See supra, tit. " Palmer." * Certificate of approval by the ^ Palmer was but twenty-two Judges ; and see supra. Preliminary years old iu Easter, 17th James I., Remarks, § 10 note. the date at which the first oases in ^ Preface to Sir O. Bridgman's his Reports are stated to have been Judgments, p. ix. decided. ' Latch, 31. 264 THE COMMON-LAW REPOETEES. cases derived from hearsay, and necessarily of uncertain value. Mr. Roscoe, in speaking of Mr. Tenhove, a Dutchman' b work in French, on the Genealogy of the Italian house of Medici, remarks, as a curious fact, that the most engaging work which has ever appeared on a subject of literary history ■is written by a native of one country, in the language of another, on the affairs of a third.^ The bibliology of the volume before us records a similar sort of fact, almost or ■quite as curious. Latch was published originally in French, the only form in which, even at this day, it is known in England ; and the curious fact is that while Latch, an Eng- lishman, should have written his Reports in French, M. Mar- tin, a Frenchman, while resident and naturalized in America, should have translated them into English. Francis Xavier Martin, a native of old France, and afterwards a distinguished jurist of Louisiana, published in 1793, a translation of this reporter. Martin was originally a printer in North Carolina ; and the book, which is now scarce, was issued "From the Translator's Press," at New Bern, in that State, — a place, I suppose, which was originally settled by Swiss, who trans- ferred to the soil of the New World the name of their ancient capital, so famous for its bears, and which, under its American ■form, has of late acquired fame in the picturesque history of our own war. After observing that he was well aware of the reputation and comparative worthlessness of this reporter, and that he had not assumed to correct the glaring imperfections of post- humous and unperfected work, M. Martin says : — "I translated rather servilelj'. Elegance of stj'le, even in my native language, is without my reach : an attempt to it in another would have been madness ; it was not within mj- ambition. I omitted the cases relating to spiritual matters ; these are seldom wanted on this side the Atlantic. The onl^^ alteration I permitted 1 The Life of Lorenzo de Medici, 10th edition, London, 1851, p. 17. LATCH. — LITTLETON. 265 myself in the body of the work was, to separate, into distinct paragraphs, the statement of the causes, the arguments, and the decisions ; and to substitute the use of the first to that of the third person. At the end of most cases are references which were not in the old editions ; I took them from a manuscript of the late Judge Dewey, of this State, a gentleman of much reading and studiousness, and their ordinary concomitants, learning and accu- racy. After the name of every case I placed that of the term at which it came before the court ; in the old edition it was to be sought for in the table. With this I took more liberty than with the rest of the work. I arranged the names of the cases in a manner more strictly alphabetical ; and I introduced those of the parties, both in the common and in the inversed order, and substi- tuted an index, entirely new, to the former." I have little knowledge of Latch's personal history. I find him in Style, page 474, arguing a case, A. D. 1655, but do not find his name much afterwards. In all the English editions of Latch which I have examined it would appear as if the book had originally ended with page 224; for the word Finis, carefully crossed out with the pen, terminates that page, and there is no catch-word or cue to a new page. The signatures and paging run on notwithstand- ing for fifty-one additional pages, at the close of which you find the end ; La Fin being used, however, instead of the Latin announcement as before. " The book," it is said in Sir Orlando Bridgman, 227, " is very ill printed." (Edns. : Fr., fol. 1662, and Eng. by Martin, 8vo, 1793.) LITTLETON. C. P., EX. 2 Car. L— 8 Car. I. (1626-1632). These are largely reports of applications for prohibitions, — a class of cases which, so far as the law is concerned, are 266 THE COMMON-LAW EEPOETEES. little interesting in America. It is said in the preface of the volume that care had been taken to leave out all cases reported in contemporary reporters, — a palpable untruth, since a portion of the cases are found in exactly the same form in Hetley's Reports, published a quarter of a century before it. It has been supposed that the book was not com- posed by Sir Edward Littleton.^ Tlie publication was post> humous, and from a MS. found among the papers of his brother, a Baron of the Exchequer. Lord Campbell, cor- rectly, I believe, styles the work "not very valuable ;"2 although Sir Francis North, in "allowing" its being printed, says that he had found it to be made with great judgment and truth,^ as indeed it might, and not be very valuable withal. One of the cases * would present but a bad idea of the manners at Oxford in 1625. We find, at least, the Principal of St. Mary's Hall libelling one of the Masters of Art, and a Commoner of the same Hall, "jswr ceo que il appel luy Red-nose, Mamsey-nose, Copper-nose Knave, Rascal, and Base Fellow et autres words non dissonant." Another case ^ speaks as ill of the behavior of communicants in those days of Archbishop Laud. The Reverend Mr. Burnet sues one Symons in the High Commission Court, "pur ces que appel luy fool en leglise et dit a lui Sirrah ! Sirrah ! and because, moreover, he, Burnet, being Vicar there, Symons, at Whitsuntide, after the Communion was ended, took the cup and drank all the wine that was left ; and that when Mr. Burnet took the cup from him " Symons violently reprise ces hors de ses mains arriere in facie Ecclesice devant que les parishioners fueront tous dehors leglise." It is curious, and 1 Stephens, in his introduction ^ See supra, Preliminary Be- to Lord Bacon's Letters, edition of marks, § 30 note, p. 36. 1702, p. 21; Bvidgman's Legal Bib- * Ralph Bradwell's Case, Little- liography, 204; Marvin's do., tit. ton, 9. "Littleton." « Burnett v. Symons, Littleton, ' Lives of the Chancellors, vol. 154. ii. p. 606. LITTLETON. 267 perhaps worth noting, that the court decided that all the wine that was left after the Communion belonged to the parson. The same declaration will be found, I believe, in the rubric to the Book of Common Prayer, printed in the time of Charles II. as respects the unconsecrated bread and wine. But a special and more reverent provision is made for that consecrated. Persons who are curious will take care, in selecting a copy of Littleton, to look for two fine prints found in choice copies : the one, a portrait, by White, opposite the title, and some- times on India paper ; the other, the arms of Littleton, hand- someh"^ displayed, and immediately preceding the cases. Tliis latter print is taken from an original on the south window of the Inner Temple Hall. I gather the following dates from Mr. Parker's edition of Walpole's Noble Authors ; to which book, and more particu- larly to Lord Campbell's Lives, I refer the reader who has occasion to know more of the career^- somewhat an adven- turous one — of this reporter. Edward Littleton was a descendant of the great author of the Tenures, and was born in the 3ear 1589. He was put to Oxford, 1606, and removed to the Inner Temple, 1609, where he made such rapid progress in the law that the City of Lon- don chose him for their Recorder. lu 1626, he was returned to Piirliament ; in 1635, appointed Solicitor-General, and soon after knighted. Speaking of his career at the bar, Clarendon tells us that he had " taken great pains in the hardest and most knotty part of the law as well as that which was more customary, and was not only very ready and expert in the books, but exceedingly versed in records, so that he was looked upon as tlie best antiquary of the pro- fession ; and upon the mere strength of his own abilities had early raised himself into the first rank of the practice in the common-law courts," as he did very rapidly afterwards in all the other courts. In 1640, he was raised to the Chief 268 THE COMMON-LAW BEPOETERS. Justiceship of the Common Pleas, an office which was " in- deed," continues the noble historian, " the sphere in which he moved most gracefully, and with most advantage, being a master of all that learning and knowledge which that place required, and an excellent Judge, of great gravity, and above all suspicion of corruption." " Being a man of grave and comely presence," says Clarendon, in a sentence which we might almost think Rochefoucauld was translating in one of his best^known maxims,^ " his other parts were overvalued ; " and he was induced in the following year, by the importunity of the King and certain leaders of the royal party, to accept the Seal as Lord Keeper, which was delivered to him on the 19th of January, 1641, with an elevation soon after to the Peerage, as Baron Littleton, of Mounslow. " From this time," continues Clarendon, " he seemed to be out of his element, and in some perplexity and irresolution in the Chancery itself, though he had great experience in the prac- tices and proceedings of that court ; and made not that despatch that was expected at the Council Table ; and in the Parliament he did not preserve any dignity, and appeared so totally dispirited that few men showed any respect to him but they who most opposed the King, who did exceedingly apply themselves to him, and were with equal kindness re- ceived by him." He died at Oxford, August 27th, 1645, during the siege of that place, being at this time colonel of a regiment of in- fantry, in which all the judges, lawyers, and officers belonging to the several courts of justice were enlisted. His regiment attended him to his grave, which is in the Collegiate Church of Christ's Church, Oxford, — the cathedral of this place, — in which a fine monument, I remember, to his memory, at- tracted my attention in examining that beautiful illustration of Norman architecture at this shrine of learning, literature, 1 Maxim 265; "La gravity est un mystdre du coi-ps, invents pour cacher les ddfauts de I'fesprit." LITTLETON. 269 and piety. His epitaph, with the truth, perhaps, for which that class of compositions is distinguished, celebrates his " for- titude and unsuspected faith to his sovereign." Lord Camp- bell's Life of him would present a different view of his character. " If he is saved," says the Lord Chief Justice,^ " from being placed with the. treacherous, the perfidious, and the infamous, it is only by supposing him to be the most irresolute, nerveless, and pusillanimous of mankind." In speaking of him, the Philadelphia Legal Intelligencer says : — " Notwithstanding his close relations to the High-Church party of Charles I., Lord Keeper Littleton seems to have been somewhat of a liberal in certain respects, or rather to have distinguished, at an early day, with intelligent humanity, between a literal translation and a true meaning of one of the maxims of the early common law. Justice Brook, a Judge of the King's Bench, in the time of Henry VIII., and the well-known author of the ' Abridgment,' — treating a pagan as on a level with an outlaw and rebel, and considerably below a dog,^ — declares it as a doctrine of English jurisprudence, that if a man beat one of the heathen, the latter can have no action. Sir Francis Moore, ^ too, in a later and better era, styles the Turk ' hostis communis to all Christians ; ' while Lord Coke, so eminent for his Protestant spirit, gives utterance in Calvin's Case * to some sentiments which would hardly discredit the Sacred College for the Propagation of the Faith, itself. ' All infidels,' he says, ' are, in law, perpetual enemies ; for between them, as with the devils whose subjects thej' be, and the Christians, is perpetual hostility, and can be no peace ; for as the Apostle saith, 2 Cor. vi. 15, Quceautem con- ventio Ghristi ad Belial, aut quce pars fideli cum injideli. And here- with agreeth the book in 12 Henry VIII., fol. 8, where it is holden that a pagan cannot have or maintain any action at all.' Lord Keeper Littleton, however, declares,^ with a better and more cathoUc 1 Lives of the Lord Chancellors abl. de suir action: mes icy Had pris and Keepers, vol. ii. p. 605. mon chien. 2 Year Book of 12 Henry VIII., = Reading on Statute of Chari- fol. 4. Come si 1 Snr. bates, villien, table Uses, quoted in Boyle on ou le bar. sa fee. ou on bate an hoe. Charities, 471. ullage ou traitr., ou pagan, ils n'au- * 7 Reports, 17. tont ace, p. ceo que ils ne sont p. * 1 Salkeld, 46. 270 THE COMMON-LAW EBPOETEKS. apprehension of the maxim, that the position is true in a special sense only ; and ' though there be a difference between the religion of infidel nations and ours, that this does not oblige us to be ene- mies of their persons ; that they are God's creatures, and of the same kind as we are, and that it would be a sin to do bodily harm to them.' " (Edns. : Fol. 1683.) HETLEY. C. P. 3 Cah. I.— 8 Car. I. (1627-1632). It is a well-lcno'mi historical fact, that in the reign of James I. Lord liacon endeavored to procure the revival of the an- cient office of Reporter, which had been dropped by Henry VIII. The titlepage of Hetley informs us that the author was appointed " by the King and Judges for one of the report- ers of the law." This volume is the onlj'^ one that can be so much as referred to as the fruit of Bacon's wise design ; ^ ' I have never been able to trace the history of this revival of the regular reporters. It is certain that Bacon, while Attorney-Gen- eral, urged upon James I., in " A Proposal for amending the Laws of England," the appoint- ment of "some grave and sound lawyers, with some honorable stipend, to be reporters for the time to come." And in Eymer's Fsedera (vol. xvii. p. 27) may be found " Ordinalio qua constkuanlur lez Reporters de Lege." * It is directed * This document is printed at length, together with Bacon's letter to Bucking- ham, October 18, 1617, in Ellis & Sped- ding's edition of Bacon's Works, vol. xiii. pp. 263, 266. to Sir Francis Bacon and to Sir Julius Csesar. After stating the King's anxiety to preseiTe the an- cient law and to prevent innovations, it has been thought good, it tells us, to renew the ancient custom, to appoint some grave and learned lawyers as reporters, &c. In a letter to Buckingham, of October 18, 1617 (Bacon, vol. xii. p. 33, Montague's edition, 1827), Bacon says: " I send also two bills for letters-patent to the two reporters ; and for the per- sons I send also four names, with my commendations of those two for which I will answer upon my knowl- edge. The names must be filled in the blanks, and so they are to be re- turned." A note to the " Proposal HETLEY. — CLAYTON. 271 though we must note that it is in the time of Charles I., not in that of James I. However, if we are to judge by the cases in it, the advantages which were anticipated from the revival of the ofBce seem to have failed ; for whether Hetlej'' (or, as has been sometimes thought, Lord Keeper Littleton) was the author, the Reports themselves are said hy Mr. Douglas ^ to be " far from bearing any marks of peculiar skill, information, or authenticity." (Edns. : Fol. 1657.) CLAYTON. ASSIZES. 7 Car. I.— 3 Car. II. (1631-1651). " Repoets and Pleas of Assizes at Yorke, held before sev- eral Judges in that Circuit, with some Precedents useful for Pleaders at the Assizes, never Englished before." These Reports fill a hundred and fifty-one pages, of which the first hundred and eight contain cases down to April, 1642, inclusive. The remainder of the book is from March, 1646-7, to August, 1650, inclusive. On tlie 22d of August, 1642, the King's standard was raised at Nottingham, and the civil war was begun in form. See further on p. 274. for amending, &c., obviously made to the Stli of Charles I., which was long after the Proposal itself, and some time after the date at which when Bacon was in retirement, Bacon wrote. In Sir llobert Hyde's adds: " This constitution of report- replyto Lord Chancellor Clarendon's ers I obtained ot the King after I was speech to him, on being made Chief Chancellor, and there are two ap- Justice of the King's Bench in 1663, pointed, with £100 a year stipend." Hyde says, " I attended Coke's time (Id. vol. V. p. 310.*) Is there any fur- as a reporter here." See infra, tit. ther account of this appointment? "Keble," or 1 Keble, 563. The present volume, it will be ob- > Preface to Douglas's Reports, served, contains cases from the 3d vol. ix. * Vol. xiii. p. 69, Ellis & Spedding's edition. 272 THE COMMON-LAW EEPOETEES. I am not conscious that Clayton's Reports — though de- clared on their face to have been useful for pleaders at the Assizes in those times when Puritans, being uppermost, hung Cavaliers, and when Cavaliers, coming back in turn to power, repaid this favor to their Presbyterian friends — are of much practical use, in this day, to any one. The lovers of quaint records, however, may still enjoy them for other merits. A few examples may serve. Sheffield's Case ^ gives high ideas of constabulary greatness. Dogberry would have rejoiced in it. Thus it reads : — " An action of false imprisonment brought against a constable, who pleaded not guilt3^ The defendant did show in evidence that he came to search in time of the plague for lodgers in the town, and he found a stranger, and questioned him which way he came into the town ; who answered, ' Over the bridge.' And the Judge conceived this to be a scornful answer to an ofHcer. And because he had no pass, but travelled without one, and gave such an answer, the defendant did offer to apprehend him ; and the plaintiff there- upon being present, said to the defendant, ' He shall not go to prison,' but yet offered to pass his word for his forthcoming ; upon which the defendant did commit the plaintiff, and it was ruled upon evidence there was good cause to commit the plaintiff for opposing the CONSTABLE, though but verbally, in his office, who is so ancient an officer of the Gommonwealth ! " Usley's Case ^ records an interesting fact in the history of — turkies. Thus it runs : — " Trespass. Plaintiff declares that the defendant did break his close, and eat his grass, &c., cum averiis suis, scilicet, oxen, sheep, hogs, avibus, Anglice ' turkies.' And the Judge in this case did hold that turkies are not comprised within the general word averia, which is an old law word, and these fowls came hut lately into England. And upon this it was directed to sever the damages ; for otherwise if the damages shall be jointly given, and it be ill for this of the turkies, for the reason above said, it will overthrow all the verdict." 1 Page 10. '^ Page 50. CLAYTON. 273 Judges, too, it appears, were as decided in that day as they have ever been in ours ; though they sometimes hastened, it would seem, in such a way as maj' have recalled Sir Nicholas Bacon's counsel, " Stay a little that we may the better speed." Lee V. Saville '■ is the illustration. " The Judge did put back the jury twice, because they offered then" verdict contrary to their evidence, as he held, and set a hun- dred pound fine upon one of the jury, who had departed from his companions ; but after, upon examination, it was taken off again, for that it did appear, it was only by reason of the crowd, and some of his fellows were always with him." Attorneys, also, seem to have had great ideas of their dig- nity when walking in the market-place, and to have been, perhaps, susceptible overmuch to its infringement. Certainly those gentlemen of the ancient English bar ought, when they went into such places for a promenade, to have been content with neighbors' fare. Our reporter seems to have rather been of this opinion too. The case is given by him thus : - — " Kerifford, an attorney, was plaintiff in battery, and the case was thus : He was walking in the market {as attorneys do too much) , and the defendant and he had some angry words there ; upon which the defendant did press to go by him ; and in going, by reason of the throng of people there, he jostled the plaintiff, and for this he brought this action, in which if an assault only be proved, it is suf- ficient. And holden it was no assault, for the touching him or jostle was to another end, namely, to get by him in the throng, and not to beat him," &c. The next case is a sad one,^ a melancholy warning to all persons who strive for the mastery in litigation. Attend to it all such ! " Memorandum. One Mr. Guj'e Faux, of the parish of Leathley, a cavileer, had a cause heard about a plunder, upon Monday this week after dinner, and was well in court, and damage against him a hundred pounds, and he was found dead next morning upon the conceit of it, as was supposed." 1 Page 31. 2 Page 22. s Page 116. 18 274 THE COMMON-LAW EEPOETEES. (Edns. : 12mo, 1651, and more neatly, Dublin, 1741. In the Irish edition, an errata list, prefixed to the English, is omitted ; but without any correction, except in a single in- stance, of the errors which the list was given to indicate.) MARCH'S NEW CASES. K. B., C. P. 15 Cab. I.— 19 Car. I. (1639-1643). Chief Justice Paekek ^ calls March " a very indifferent reporter." Sergeant Hill, who is stated by Lord Eldon to have been " a most learned lawyer," ^ doubts the justice of this censure. Roger North, like a good juryman, divides the difference, and says, very safely, that he is " a mean reporter, but not to be rejected." The work is styled " New Cases," to distinguish it from another compilation of March, men- tioned further back ; though that is sometimes caUed New Cases also.^ The latest cases in the volume are of Trinity, 18 Car. I., A. D. 1642, which was before the raising of the King's standard at Nottingham, mentioned on p. 271. Except Clayton, men- tioned on that page, and RoUe's Abridgment, I think that we have no volume or collection by any one author which con- tains cases both before and after that event. Style's Practical Register contains none prior to 1643. (Edns. : 1648, and 2d, small 4to, 1675.) STAR CHAMBER CASES. " Shovting what cases properly belong to the cognizance of that court ; collected, for the most part, out of Mr. Comp- ton, his booke, entitled ' The Jurisdiction of Courts.' " ' 10 Modern, 138. effect, Life of Romilly, p. 13, 3d ' Life, by Twiss, vol. i. p. 58, edition. Philadelphia, 1844; and to the same ^ See supra, p. 135. STAR CHAMBEK CASES. 275 This volume, which is a mere pamphlet of 55 pages, is a treatise upon the jurisdiction of the Court of Star Chamber, rather than formal reports in court. When Mr. Justice Shallow, grieved by the " disparage- ments " of Falstaff, threatened to " make a Star Chamber matter of it," vowing that " if he were twenty Sir John Fal- staffs, he should not abuse Robert Shallow, Esquire," — who writes himself " Armigero" — he seems to have apprehended, with judicial exactness, the extraordinary jurisdiction of this tribunal, as presented in the volume before us ; slanderous words against a King's Justice being one of the offences spe- cially punished by the Star Chamber, in exercise of a peculiar as distinguished from an ordinary jurisdiction.^ And the charity of Sir Hugh, the parson, was much better than his law, when he supposed that the Council desired " to hear the fear of Got, and not to hear a riot ; " unlawful assemblies, routs, riots, forgeries, perjuries, cozoanages, and libellings, being declared in these Reports to be the matters which properly belong to the jurisdiction of the Star Chamber. We give here a few cases from the Star Chamber. As we read them, one cannot help thinking that Lord Bacon and Yelverton, and Hobart and Coke and Crewe, and Francis Moore, and other of the bright geniuses who adorned that age and court, must have been extremely amused at the ques- tions which came occasionally before their consideration. These are the cases we extract : — LoED Daecy v. Maekham." The Lord Darcy of the North sued Gervase Markham, Esquh'e, in the Star Chamber, and the case fell out to be thus : that thej- had hunted together, and the defendant and a servant of the plaintiff, one Beckwith, fell together by the ears in the field, and Beckwith threw him down and was upon him cuffing of him, and the Lord ' See Star Chamber Cases, 33, where a man was punished for this very offence. 2 Hobart, 120. 276 THE COMMON-LA"W EBPOETEES. Darcy took him off and reproved his servant, and yet Markham chid him, charging him with maintaining his man. And the Lord Darcy replied, that he had used him kindly, for if he had not rescued him from his man, he had beaten him to rags. Whereupon, Markham wrote five or six letters to the Lord Darcy, and subscribed them with his name, but sent them not, but dispersed them unsealed in the fields, whereof the effect was, that whereas the Lord Darcj' had said, that but for him his man Beekwith had beat him to rags, he lied, and that he would maintain with his life ; and then said, that he had dispersed those letters that he might find them, or somebody else might bring them to him ; and concluded that if he were desirous to speak with him, that he should send his boy, and he should be well used.. This cause was effectually handled at the common law, not enforced bj' the King's proclamation, because the defendant had no knowledge of the proclamation, nor by likelihood could have, it was so soon after the proclamation. But the plain- tiffs counsel, by direction of the court, left the proclamation, and yet Markham was censured and fined £500. The reason of the sentence was, that this was a compounded misdemeanor, for the letter thus dispersed was in the nature of a libel, slanderous and defamatory to my Lord Daroj' ; and the other point was, that though there were no direct challenge to my Lord Darcy to fight, yet there were plain provocations to it, and, as it were, to call and challenge my Lord Darc}' to fight him. And though the case was something aggravated, that it was to a peer of the realm, yet the censuring of the fact rose out of the nature of it, and not out of the circumstances of the person. Marshall v. Steward.^ Marshall brought an action of the case against Steward, recit- ing the Stat, of 1 Jac. of invocation of foul spirits (which was need- less), for speaking these words unto him : " The devil appears unto thee every night in the likeness of a black man, riding upon a black horse, and thou conferrest with him, and whatsoever thou doSt ask him he doth give it thee, and that is the reason thou hast so much money." And after a verdict finding the words, the court gave judgment for the plaintiff. 1 Hobart, 129. STAR CHAMBER CASES. 277 "Wkenham's Case.^ Yelvei'ton, Attorney-General, informed in the Star Chamber, ore tenus, against John Wrenham, for a complaint by him exhibited against Sir Francis Bacon, Lord Chancellor to the King, in a book containing a scandalous censure of a decree made by the said Lord Chancellor against him, for one Sir Edward Fisher. Li the sen- tencing of which case, it was resolved by the whole court that it was lawful for any subject to petition to the King for redress, in an humble and modest manner, where he finds himself grieved by a sentence or judgment ; for access to the sovereign must not be shut up in case of the subject's distresses ; but on the other side, it is not permitted, under color of a petition and refuge to the King, to rail upon the Judge or his sentence, and to make himself judge in his own cause, by prejudging it before the re-hearing (for which his suit to the King should be) , which "Wrenham in this case did, through his whole book, with the most desperate boldness, and despiteful and virulent words that was possible. It was also resolved, that the injustice of the decree was not to be questioned in this case ; for that was not the point now examinable ; though in that it did appear that he had done my Lord Chancellor much and great wrong. So he was censured a thousand pounds fine. Our idea of the chivalrous notions of the Star Chamber re- ceives a sad abatement in the case we now present, Tufton V. Nevill, in which, as will be seen, the court, while deciding that so delicate a matter as solicitation of chastity is not examinable, even by it, intimates, most ungallantly, that a man, if compelled to answer on oath, might criminate a lady's virtue where he himself had been gratified by her regards. Very different was Sir Thomas Erskine's opinion, as will be remembered by every one familiar with his brilliant and beautiful speeches. TuFTON V. Nevill.^ Sir Humphrey Tufton exhibited a bill, &c., against Master Christopher Nevill, son to the Lord Aburgavenny, for a riot, and laid by way of inducement, that Nevill had sohcited his wife to in- 1 Hobart, 220. " Id. 195. 278 THE COMMON-LAW EEPOETEES. chastity both before and since his marriage with her ; and that this being made known unto him by his wife, he caused her to write letters to the defendant, giving him hope of her inclination, and appointing him a time by night, and place ; at which the defendant coming (and the plaintiff, with a man disguised lilie a woman being there expecting as much), the defendant and others in this company made a riot upon him and his companj'. To this the defendant, as to the riot answered ; but as to the solicitation of the lady's chastity demurred. Whereupon, motion being made in court, though there were some of another mind, j'et it was Eesolved and Kuled that the defendant's demurrer was good : and though it was urged that this inducement served very much both to aggravate the defendant's liot and to justify the plaintiffs train, j'et the point of itself was naturally of another jurisdiction, and for the spiritual, whose proceeding in this case was not to be usurped nor prevented. Besides, the fault of solicitation is of so uncertain acceptation, as is not fit to be here examined. And, lastlj', to examine such a fault by the oath of the delinquent is not allowable by us, being a delict that we cannot censure. And it may prove scandalous in the event if the defend- ant should upon his oath (which were in him excusable if the court should constrain his answer) criminate the lady, were it true or false ; for that could never be satisfied, being a point so secret as soheita- tion onljf. HiCKs's Case.^ One sent a letter, closed and sealed up, to Sir Baptist Hicks, which was so delivered to his hands, containing manj' despiteful scandals delivered iVowice, as saying, "You will not play the Jew nor the hypocrite," and in that sort taunting him for an almshouse, and certain good works that he had done ; all which he charged him to do for vain glory. Whereupon, Sir Baptist Hicks sued him in the Star Chamber. And now upon the hearing it was resolved, that though it were not proved that the defendant had any way published it, yet the court would hold plea of it, and so did, and fined the defendant, and sentenced him to wear papers, and to make his submission to Sir Baptist Hicks in Cheapside. Yet an action of the case will not lie in that case, for want of publication ; but the King and Commonwealth are interested in it, because it is a provocation to a challenge, and breach of the peace. 1 Hobart, 215. STAK CHAMBER CASES. 279 We next come to a historical case. " The Lady Arabella," mentioned in it was of course the Lady Arabella Stuart, and the " supposed child" was necessarilj'^ a matter of vast curiosity to the women, as well as of the most well-founded anxiety to the graver part of the nation, as involving directly the heir- ship of the Stuarts to the throne. Here is the report. Countess of Shrewsbury's Case.^ The Countess of Shrewsburj- was fined ten thousand pounds and committed to the Tower, for that being called to the Council Table and interrogated what she knew or had heard or thought, of a sup- posed child which was rumored that Lady Arabella should have had, she refused, obstinately, to make any answer, for it was judged that this was a question of State. For there is not one thing that doth more concern the peace of a kingdom than the certainty of the royal line ; insomuch as supposititious persons have raised as great com- inotions and troubles in States as the discords of true heirs and descendants ; as in the case of Perkin Warbeck, he at home ; and counterfeit Sebastian of Portugal, and many others. . . . The ladj- was the more pressed to answer this matter, because being more familiar and inward with the Lady Arabella than any other, she must needs have falsified the rumor ; for aU men of understanding held it to be untrue ! Traske's Case.^ One John Traske, a minister that held opinion that the Jewish Sabbath ought to be observed and not ours, and that we ought to abstain from all manner of swine's flesh, being examined upon these things, he confessed that he had divulged these opinions and had labored to bring as many to his opinions as he could ; and had also written a letter to the King, wherein he did seem to tax his Majesty of hypocrisy, and did expressly inveigh against the Bishop's High Commissioners as bloody and cruel in their proceedings against him and a papal clergy. Now he being called ore tenus, was sen- tenced to fine and imprisonment — not for holding these opinions, for these were examinable in the Ecclesiastical Courts and not here, but — for making of conventicles and factions by that means, which may tend to sedition and commotion, and for scandahzing the King, the bishops, and the clergy. 1 Hobart, 235. ' Id. 236. 280 THE COMMON-LAW EEPOETBES. Countess of Exeter v. Lady Ross.'' In the great cause between the Countess of Exeter, the Lady Ross, and others, because the Lady Ross and one Sarah Swar- ton, her maid, had charged the Countess of Exeter that she had delivered unto the said Lady Ross at Wimbleton, at the Earl's house, in a certain chamber there, a paper written and signed by herself (as she said), containing a confession of certain foul faults, and a submission thereujpon, which was showed unto the King ; his Majesty commanded Serjeant Crew and the Serjeant Moore, of counsel of either side, to go to Wimbleton, and there, in the same chamber, to examine the Lady Ross and Swarton, upon all such things as, upon their view of the place, they might judge likely to discover the truth or falsehood of the same matter ; which they did accordinglj', without oath. Now the same persons being afterwards examined in court as defendants, upon all things that the plaintiffs listed ; they did further examine them upon interrogatories, whether that declaration which thej' had made at Wimbleton before the two . Serjeants were true or not ; but they did not show them that declara- tion now ; whereupon they answered that they were true. Now, upon motion in open court, it was resolved that these examinations were not well taken ; for no man is bound by an ex- amination in court till first he have advisedlj' read, perused, and corrected it, as he sees cause, and then finalh' concluded it. There- fore, this being first taken without oath, there was no reason to bind them to it by a new oath by memory without review, and therefore by order it was suppressed. Nevertheless, because it was like that the said examination might serve the better to discover truth, it was ordered that the same their declarations should be showed them, and thej- re-examined upon them. And so thej'' were. All the cases above given are from the Reports of Lord Chief Justice Hobart, who reports, in certain parts of his volume, decisions in the celebrated tribunal we speak of. The volume more particularly under our consideration, the " Star Cham- ber Cases," gives its cases with greater brevity and more in the manner of Memoranda. This volume is quite scarce, and for the reader, not already exhausted with our quaint lore, I add, also, one or two of its cases in illustration of the work. 1 Hobart, 236. STAR CHAMBER CASES. 281 1. " The jury of London, which acquitted Sir Nicholas Throgmor- ton, Knight, circa primo Mar. Begin, of high treason, because that the matter was thought to be proved insufflciently against him, were called in the Star Chamber in October, 1544, and eight of them were fined there at great sums ; everyone of them at five hundred pounds at the least, and awarded also back again to prison, there to remain until further order were taken for their punishment, and the other four were released of their imprisonment, because they submitted themselves, and acknowledged that they had offended, not consider- ing the truth of the matter. Ut patetper Hollingshead, fo. 1759." 2. " Eleven of a jury, which did acquit one Hoj-d, of felony, be- fore Sir Roger Manwood, Chief Baron, in his circuit in Somerset- shire, against apparent evidence : they were fined in Star Chamber, and did wear papers in Westminster Hall, circa 22 Eliz., the which myself saw." 3. " Divers were set on pillorj'^ in Cheapside, in London, circa 36 H. VIII., for cutting out the tongues of certain living beasts, and for barking of certain fruit trees, and burning of a farm mali- ciously, of one Greshams." 4. "A Knight of the county of Northumberland was fined in a great sum in the Star Chamber, because he permitted a seditious book called Martin Marprelate to be printed in his house. 32 Eliz." 5. "One spoke of my Lord Dyer, Chief Justice of the Common Pleas, that he was a corrupt Judge, for which he was convicted in this court, and adjudged to stand upon the pillory. Vide Statut. de Scandal. Magnatum, in the which the Judges of* the law are men- tioned. And surely this man was a very grave, reverend, and up- right Judge, by the general report of all men, and by this report greatly abused." Such are our records of the Star Chamber, a court every- where abused of late times, not less in England than in our own Republic. Certainly it would be a curious thing to in- quire how a tribunal, composed of such men as it was, that is to say, of men like Coke, and Bacon, and Hobart, and Crewe, and Laud, and Yelverton, should have so utterly failed to com- mend their administration of justice to either their own or to any other day or land. Indeed, when we see what men filled 282 THE COMMON-LAW EEPORTEES. the offices which are named in the statute constituting this court, it is impossible to conceive of a tribunal better able to discharge, or more certain to discharge with integrity, — with justice, with decorum, with every sentiment of respect for the living and the dead, — with all the regards that were due to the accused and the accuser, and with the many exquisite social considerations which the honor, the offices, and dignity of the persons frequently before it required at their hand, than a tri- bunal thus ordained ; ^ and that its deliberations were not with open doors, and that its powers were almost in fact unlimited, were reasons one might say, a priori, why its judgments should give the nation satisfaction. (Edns. : Small 4to, 1630 or 1641.2) SPECIAL LAW CASES, " CONOEEKING the persons and estates of all men whatso- ever." This book, — the title of which, getting from a special nature to an universal one, operates, certainly, — like that of 1 Lord Coke himself remarks on such other Lords of Parliament as this: "It is," said he, "the most the King shall name. And they honorable court (our Parliament ex- judge upon confession or deposition cepted) that is in the Christian of witnesses; and the court cannot world, both in respect to the Judges sit for the hearing of causes under of the court, and of their honorable the number of eight at the least, proceeding according to their just And it is truly said, ' Curia camera ju:risdiction, and the ancient and stellatce, si vetustatem speclemus, e.it just orders of the court. For the antiquissima ; si dignilalem lionoratis- Judges of the same are the grandees sima.' This court, the right institu- of the realm, the Lord Chancellor, tion and orders thereof being ob- the Lord Treasurer, the Lord Presi- served, doth keep all England in dentof the King's Councell, the Lord quiet." (Fourth Institute, chapter Privy Seal, all the Lords, spirituall, V.) temporall, and others of the King's " Messrs. Soule & Bugbee have most honorable Councell, and the a reprint in press, principall Judges of the realm, and SPECIAL LAW CASES. 283 the Release, — by way of enlargement, — r I do not remember to have seen quoted anywhere except in Godolphin,^ where it is cited as " Law Cases Collected, edit. 1641, perused per Hutton. " The book is rare. It is a small 4to, of three hun- dred and three numbered pages, printed in 1641, at London, by " M. F.," and " are to be sold by William Cooke at his shop at Furnival's Inne Gate, in Holborn, 1641." It pro- fesses to be collected and gathered " out of the Reports and Year Books of the Common Law of England." The work contains a good many MS. cases from the reign of Henry VIII. to the end of Elizabeth's, stated pretty much in the manner in which points are stated in Fitzherbert's Natura Brevium ; but the authorities vouched are generally from the Year Books. It is hardly to be called a book of Reports. The history of the way in which the world came to be pre- sented with a gift which has been, apparently, so little regarded by it, and the cause why Mr. Justice Hutton figures as its sponsor in Godolphin, is given in a preface from the stationer to the reader, — a preface which would indicate a stationer at once of legal learning, and of large philanthropy. Thus it reads : — " This copy coming to my hands, after many perusals to my own satisfaction, I desired it should receive allowance from superior judgments. It hath beqn presented to some of the learned Judges ; and Sir Richard Hutton, late Judge of the Common Pleas, vouch- safed ,not only to peruse it, but in divers places to correct and enlarge it. And now digested into a perfect body, 1 could not suffer it to sleep longer hy me, hut thus publish it for the benefit of the Gommon- wealth." (Edns. : 1641 and 1648.) 1 Orphan's Legacy, 114, 4th edition. THE USURPATION. THE USURPATION STYLE. U. B. 21 Car. I.— 8 Car. II. (1645-1656). " Cromwell," says Mr. Burke,^ — speaking of the judicial administration under the Protector, and distinguishing the proceedings of the English republic from those of the revo- lutionists of France, — " Cromwell, when he attempted to legalize his power, and to set- tle his conquered country in a state of order, did not look for dis- pensers of justice in the instruments of his usurpation. He sought out with great solicitude and selection, and even from the party most opposed to his design, men of weight and decorum of character ; men unstained with the violence of the times, and with hands not fouled with confiscation and sacrilege : for he chose an Hale for his Chief Justice, though he absolutely refused to take his civic oaths, or to make any acknowledgment whatsoever of the legality of his government. Cromwell told this great lawyer, that since he did not approve his title, all he required of him was to administer, in a manner agreeable to his pure sentiments and unspotted character, that justice, without which human society cannot subsist ; that it was not his particular government, but civil order itself, which as a judge he wished him to support. Cromwell knew how to separate the institutions expedient to his usurpation, from the administration of the public justice of his countrj'. . . . Accordingly, we are indebted to this act of his for the preservation of our laws, which some senseless asserters of the rights of man were then on the point of entirely erasing, as relics of feudalitj' and barbarism. Besides, he gave, in the appointment of that man, to that age, and to all 1 Letter to a member of the Na- 1839. Hale, however, was ap- tional Assembly, Burke's Works, pointed, I believe, but Chief Baron vol. iii. p. 294, Boston edition of by Cromwell. 288 THE COMMON-LAW EEPOETEES. posterity, the most brilliant example of sincere and fervent piety, exact justice, and profound jurisprudence." These Reports of Style are valuable, as being the only rec- ords of the decisions of Rolle and Sir John Glyn, the able Chief Justices of Oliver Cromwell, and (what rarely hap- pened to Reports in thfeir day) they were published by the author himself. The reporter, from his own account, would seem to have been careful about what he put into his book ^ as decided. In one place, after mentioning that Chief Justice Glyn " argued long, much to the same effect as formerly," apologizes for not giving his argument, by saying that, " having taken cold," he could not " distinctly hear him." He does not, however, make any excuse in the case of Weld V. Rumney,^ where he reports an argument as made by Twis- den, at the bar, in 1650, which Twisden himself, when on the bench, about thirty years afterwards,^ said, was " not one word of it true." It is recorded of the saints of the Republic, that, in repeat- ing the Lord's Prayer, they would never say, " Thy kingdom come," but always, " Thy Commonwealth come." * From a similar spirit, probably, though with better sense, the King's Bench was styled during the time of Style's and Aleyn's Re- ports, the Upper, or Public Bench. (Edns. : Fol. 1658.) STYLE'S PRACTICAL REGISTER. This is a book of reported dicta. It went through several editions, and was absorbed into Lilly's Practical Register, which in turn was enlarged in successive editions and became Lilly's Abridgment. See 1st Shower, 111, 112. 1 Style, 470. * Hume's History of England, « Style, 318. vol. viii. p. 151 note, Oxford, 1826. » 1 Modern, 296. ALEYN. 289 ALEYN. U. B. 22 Car. I.— 1 Car. II. (1646-1649). These Reports, says Mr. Marvin, ^ — on what exact au- thority I know not, nor whether meaning to speak with knowledge of his own, — consist of loose notes of cases taken during the last years of Charles I., when judicial proceedings were greatly interrupted by the troubles of the time. During the whole term embraced by them, Rolle and Bacon were the only Judges of the KT B., and during part of the time the former sat alone. No satisfactory account is given of the MS. from which the volume is printed. In Dare v. Chase,^ when the book was cited, Mr. Justice Dolben took occasion to say, that " the publisher had much wronged the author ; for that he (Dolben) had the original manuscript, and had compared them, and found it to be mistaken in several cases, even as to the very resolutions of the court." Yet in the Term Reports ^ we find the court quote Aleyn, observing that " the case cited from him seems a direct authority in point." " I rate the book," says Mr. Green in a note to me, "as one of the best law-books, new or old, that we have. Almost every case in it is given in Viner's Abridgment without a dissenting or discrediting remark upon any. There are some gross mis- prints in the book, but I should think that no tolerable law- yer would be misled by them." Mr. Heterick, too, appears to think well of the volume. And both these gentlemen thoroughly study what they criticise. In Aleyn (p. 27) we find the often-cited case of Paradine V. Jane,* establishing the doctrine so fully recognized in courts as a sound one,^ " that where a person, by his own contract, 1 Legal Bibliography, tit. * S. C. Style, 47. " Aleyn." ' School District v. Dauchy, 25 2 2 Shower, 164; and see preface Connecticut, 538; Wareham Bank to Eden's Reports. v. Burt, 5 AUen, 116. » Vol. vii. p. 318. 19 290 THE COMMON-LAW KEPOKTEKS. creates a duty or a charge upon himself, he is bound to make it good if lie may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract," — a great and wise and politic principle of law ; and one, but for the steady anchorage of courts to which every pressing contingency not within a contractor's power to fulfil would be converted into the act of God, and solemn engagements of men be made to yield to pressure as if they were but things unfirm. The case, so often cited, it may be added, was interesting in the historical fact on which its defence was based. It was a suit for rent on a lease ; the plea being " that a certain Ger- man Prince, by name Prince Rupert, an alien born, enemy to the King and kingdom, had invaded the realm with a hostile army of men ; and with the same force did enter upon the defendant's possession, and him expelled and held out of pos- session." Of course, it could have been only while the mon- archy was prostrate that the nephew of Charles I., Prince Rupert, who was ever among the most intrepid, enterprising, and indefatigable of the cavalier commanders, would have been styled on a judicial record " enemy to the King and king- dom ; " although, brave fellow ! the characterization had a truth in it not meant. His irapetuous zeal cost poor Charles the loss of Marston Moor, and with that the loss of all his hopes. Be the volume good or bad, I insert it in my series. If valuable, it ought to be there for its deserts ; and if worth- less, I shall have the merit of not disappointing those amiable gentlemen who are more curious in books than in authors, and who give to a great and intellectual and practical profes- sion the diminutive but still useful class of Virtuosi oi the law. Aleyn appears, from the way he is mentioned in a variety of places in Siderfin, to have been a lawyer of good practice about the year 1658.* 1 See 2 Siderfin, pages 64, 70, 107, 118, 119, 136, 152, 154, 174. HAEDEES. 291 HARDRES. EX. 6 Car. II.— 21 Car. II. (1654-1669). " This volume," says Mr. Green, " contains some of the most learnedly argued of the old Reports," although the cases being entirely in the Exchequer have less value than if they had been in some other courts. The arguments of the re- porter are also frequently given at greater length than the opinions of the court, — a matter the more to be regretted, since Sir Matthew Hale usually delivers these last. The book, however, notwithstanding what is said in 2d Vesey, Sen. 144, about Hardres's reporting Lord Hale inaccurately in a par- ticular case,^ is one, I rather suppose, of character. It is from the author's own MS., which was plainly prepared with care. Of the reporter Hardres himself, I am not able to give any great personal account. He belonged to Gray's Inn, and was Sergeant-at-law to King Charles II., and Recorder of the city of Canterbury.^ His name, like those of so many families in Kent, indicates a French origin. Its founder in England, ac- cording to Sir Bernard Burke,^ came from Ardres in Picardy, though whether before or after the Conquest is uncertain. Un- doubtedly, the family was long among the most ancient and respected of Kent. I infer from the fact of his name being frequently spelled in the books without the second r, that even in England it was pronounced as a French one, and as a word of one syllable ; * in this respect, unlike some names similarly written, such for example as Chartres, which most readers will remember that Pope makes to rhyme with " mar- tyrs." Sergeant Hardres's Reports give you a very good idea 1 Hume, vol. viii. p. 151 note. * 2 Keble, 575; 3 Id. 262, 765; ^ Hardres, 390. Freeman's Common-Law Reports, » Extinct and Dormant Baronet- 143, 151, 152, 172, &o. cies, tit. " Hardres." 292 THE COMMON-LAW EEPOETEES. of his professional mind. He argued many, if not most, of the cases which he gives us, and presents a fair sketch of what he said. He seems to have been well acquainted with precedents, and cites them freely. One of the cases which he gives us is the Attorney-General v. Mico ; an " English bill " against this defendant, a Spaniard, probably, for smuggling into the port of London, A. D. 1657, a large quantity of cur- rants, and for attempting to corrupt two officers of the cus- toms, to whom it was alleged that he had paid £40 apiece by way of bribe. The bill sought a discovery from the defend- ant himself, who demurred to it, alleging that he was not compellable to answer, and so, perhaps, accuse himself. Ser- geant Hardres was one of the counsel, and his report indicates that he dissected the case in the old-fashioned anatomical style, which delighted so much in opening and dividing the author's subjects. He treats it as fit to be considered, — i. Upon Law. ii. Upon Reason. iii. Upon Authorities. iv. Answering some objections. And the argument upon his first head, that of the " Law," he subdivides into a consideration — (a) Of the Laws of God. (5) Of the Law of Nature. (c) Of the Law of the Land. " For the law of God," he observes, " that not only allows, but rather commands, every man to preserve himself from hurt and dam- age, as appears by the case of St. Paul, mentioned in the Acts of the Apostles, who being accused by TertuUus the orator for sedition and other crimes, before the Governor, answered, ' I am not care- ful to answer thee about these things ; ' that is to say, ' I am not hound to answer thereunto.' And when Pontius Pilate asked Our Saviour some questions, he answered nothing ; whence it appears what the Law of God and the God of Law allows of in such cases of HABDRES. 293 Singular suggestions, certainly, some of these for a gentle- man who was Recorder of the cathedral and religious city of Canterbury ! and who had a brother who was Canon in the cathedral itself. However, we are bound to note that the case was in the time of Cromwell, and while archiepiscopal authority was suffering its eclipse. All Sergeant Hardres's arguments in the case, we must add, moreover, are not quite so scholastic and censurable. In arguing the case on other grounds, he cites an interesting precedent from the Book of Assizes,^ illustrative of the humanity of the early English Judges, where " a woman was indicted for stealing of bread to the value of 2s. ; but saying that she had done it by the com- mand of her husband, the Justices, out of compassion, would not record her confession, but gave her leave to plead ' Not Guilty,' which she did, and was acquitted." All else that I know of Hardres I learned one summer morning in 1860, as I was strolling through the venerable cathedral of his city. It seems that whatever else was the Reporter's historj'^, he did not escape the trials of those who live to see mature years. Here was the almost obliterated record, over which thousands of English feet trod carelessly that day, — it was the day of a great agricultural exhibition by the men of Kent, — and which, probably, no one but a stranger from America felt interest enough either to read or to remember. Thus ran the pathetic inscription : — " To Jane Haedres, only daughter of Sir Thomas Hardres, Knight, King's Sergeant-at-Law, and Philadelphia his wife, de- scended from a very ancient family : a virgin eminently adorned with all the gifts of body and mind ; obedient and respectful to all, but especially to her parents ; constant in her prayers ; charitable to the poor ; remarkable for her unstained manners ; of a pleasing and agreeable person, and an extraordinary beauty, dear to her re- lations, and much lamented by all that knew her. She willingly resigned her soul to God in the year 1675, in the 20th year of her 1 Cited in Hardres, p. 140, as in " 27 Ass. 71." 294 THE COMMON-LA"W EEPOETEES. age. Attend ! Oh, my choice companions ! If blooming youth ; if the most tender affection of parents, and the love of brothers ; if affluence of wealth — if a large circle of friends, would have availed anj'thing, I had still continued among you ; but God decreed other- wise ; therefore take this warning from me. - flattering world." - Learn to distrust a There is a chasm in the paging from 232 to 301.^ Edns. : Fol. 1693, and Dublin, 1792, 8vo, with a good many notes in the margin, and references almost innmner- able. ^ The reader has doubtless noted the fact that chasms, mispaging, and other irregularities frequently occur in works printed about this time ; as, for example, in Hardres, PoUexfen, Croke, Benloe (Old and New), Owen, Bulstrode, and prob- ably in other reporters; notwith- standing which, that the volumes are regarded as perfect. The cause of this circumstance I have not seen explained. Undoubtedly the Eng- lish press was in a very corrupt state during much of the seventeenth cen- tury, and, in fact, until its freedom was established, a few years after the Revolution. ( See si(p?-a. Prelimi- nary Remarks, § 7.) The printing of law books was in old times, I believe, a monopoly. It is possible that the works in which these imperfections occur were clandestinely printed by the Curlls of the day; and that to insure despatch the " copy " was dis- tributed among different composi- tors ; but happening to prove falter or more lean (as printers say) than had been reckoned, the matter, as put in metal, overran or fell short of the paging which had been made. The same thing, indeed, might have occurred from the same cause in an honest office. (See Lutwyohe, 1668, Obs. 3.) Compositors know the difficulty, not to say the im- possibility, of casting off "copy" so as to come out at the page. If the MS. is interlined or irregular, the difficulty is extreme; and even with uniform copy, a hair space in the body of the type will produce, in a series of pages, an entire miscal- culation. I have seen the same sort of type, made about the same time, having four different bodies, accord- ing to their foundries ; and yet the improvement in this matter has been immense of modern times. The same thing thus noted in the Reporters occurs in other old works. Thus in the folio Shakspeare of 1623, in which Timon of Athens was first printed, we find pages 81 and 82 repeated. The play ends with page 98, while the next play begins with page 109. Towards the end of Timon the matter is obviously ex- tended as much as possible, single lines being sometimes divided into two, a fact from which Mr. CoUier (Works of Shakspeare, vol. vi. p. 504, London, 1842) infers, as I had previously done in regard to the Re- porters, that there had been a mis- calculation of copy. SIDEBPIN. 295 SIDERFIN. K. B., C. P., EX. 9 Car. II.— 23 Car. II. (1657-1670). " This Mr. Siderfin," says Roger North, in his Life of Lord Keeper Guilford, " was a Somersetshire gentleman, and proved a very good lawyer, as the book (two volumes in folio) of Reports of his show. But he was not a better lawyer than a kind and good-natured friend, having very good quali- ties under a rustic behavior and more uncouth physiog- nomy." " The book," however, has received more than one sort of character. Being cited, Dolben, Justice, said : It is a book " fit to be burned ; being taken by him when a student, and unworthily done by them that printed it ; " ^ "a remarkable censure," says Mr. Heterick, " considering that Dolben was himself one of the Justices who ' allowed ' its publication," and not entirely accordant with what is said by the same Judge in another case as given to us in three distinct reports.^ Opin- ions to the same flattering effect are found in 4th Modern, 6, and in Comberbach, 377. Li the last-cited place, the follow- ing dialogue is reported : — Holt, C.J: " It was resolved in the case of Butler and Hodges, in this court, that no damages should be intended to be given for that which is void." Carthue : "I can gather no such matter from that case as 't is in Sid. 319." Holt: "Ay: many good cases are spoiled in Siderfln ; neither reported with that truth nor with that spirit which the case required. The ease of Opy and Thomasius is much abused ; scarce intelligible there." 1 1 Shower, 252. ' Symonds v. Cudmore, Carthew, 261; 4 Modem, 6, and 12 Id. 33. 296 THE COMMON-LAW EEPOETERS. So when the case of Wright v. Berle, 1 Siderfin, 223, was cited, he said ^ that that report of that case was no authority at all ; though when the case of Mathews v. Hopkins in the same book, 244, was cited, he said that it agreed with his own notes of the case. So in Ventris, 243, the case of Spigurnell, in-l Siderfin, 12, being cited, " the court," says Ventris, " were not satisfied with the opinion reported by Siderfin, and said he was then a young reporter." Mr. Burke, indeed, in his fine " Report from a Committee appointed to inspect the Lords' Journals," ^ spoke of Siderfin as " a reporter of much authority." He was showing the great enlargement which modern times made in the principles and rules of evidence. " Lord Mansfield," he says, when Keble and Siderfin were cited before him,^ on the point of re- leasing a witness, did not " controvert " either authority, though "he treated both of them with equal contempt;" his words being, said Mr. Burke, " We do not now sit here to take our rules of evidence from Siderfin and Keble." Mr. Burke, however, was a greater statesman than bibliographer.* How are we to reconcile these discordant opinions ? The 2d part of Siderfin is so called because it was printed after the 1st. In point of time the cases in the 2d part pre- cede those in the 1st. Those in the 1st part are A. D. 1660-70. Those in the 2d, A. D. 1657-59. These last were taken when Siderfin was a stadent, and doubtless when the 1st part was printed were not intended ever to be published. If they had been, they would have been printed at that same time with the 1st, and put in their proper place, in the beginning of that volume. The case cited before Dolben, J., 1 Comberbach, 333. utes to Lord Mansfield Mr. Gresley ' Works, vol. vii. p. 592, Boston, ascribes to Lord Kenyon. Equity 1889. Evidence, 300, Philadelphia edition » See 1 Blaokstone, 366. of 1837. * The remark which he attrib- SIDEEFIN, 297 when he said that the book was fit to be burned, was from the 2d part ; and to it we must confine his wide censure. He was one of the licensers of the 1st part, but not of the 2d. As to what is said by Holt, C. J., about Butler and Hodges, he appears* to have been led away by Carthew's remark, that he could not gather from Siderfin's Report what Holt stated from memory had been decided there ; whereas, I conceive that that Report, in a plain and explicit manner, accords with and confirms what Holt had stated had been decided in it. As to Opee v. Thomasius, it is certain that while there may have been much able argument at the Bar and many valuable dicta from the Bench, no judgment was ever given. ^ And it was nc^part of Siderfin's purpose in his first volume to report arguments in general. What is said in Ventris about Siderfin's report of Spigur- nell's Case does not necessarily show that Siderfin in any way misreported it. Both parts of Siderfin were published after his death : and as in so many of the old reporters, there are some cases not vdty intelligible ; some, too, perhaps, wrongly reported. But • I apprehend that on the whole, if we except the earlier cases, his reports, though concise, are of value. His report of Manby v. Scott is selected by Mr. Smith as a leading case ; and certainly, although the case is reported by several other reporters, Siderfin's compares well with the best. It would appear from passages in Siderfin ^ that we have n&t, in print, all his Reports. (Edns. : 1683, second part,- 1684 or 1689 ; and 2d, 1714, by Robert Dobyns, of Lincoln's Inn, with references by Edward Chilton and Robert Skinner ; the former known as an editor of Hobart.) 1 Symonds t». Cudmore, 4 Mod- " See pp. 39 (in the margin) and em, 6 ; Bannister's Bridgman, 613 ;- 465. 2 Chance on Powers, 275; 2 Sug- den on Powers (6th ed.), 377. THE RESTORATION. THE EESTORATIOlSr. BRIDGMAN, SIR ORLANDO. C. P. 12 Car. H.— 19 Cak. II. (1660-1667). Sir Oblando Bridgman was among the most eminent common lawyers of the period near the Restoration ; and though like Lane and Vaughan, and unlike Hale, " so severe a moraler " as to have declined practising under any Judges of the Usurpation's appointment,^ or to act otherwise than as a conveyancer and chamber counsel, " was even in his retirement," says Lord Holt,^ much devoted to his profession, and " had an account brought to him of all that passed in the courts." As the law in his time was in what may be called a transition state, — a state of passage from the old to the modern system, — and as the decisions of that epoch happen to be handed down to us by Latch, Carter, Keble, Siderfin, and other inaccurate reporters, it is much to be regretted that all the MSS. of the Chief Justice are not printed. The present volume — of his own decisions as Chief Justice of the Common Pleas, in which office he is conceded to have been very eminent — embraces, it will be seen, a term of but seven years. It is printed from a MS. of Mr. Hargrave, and first appeared in 1823, under the auspices of Mr. Bannister ; from whose name it is usually cited as 1 Campbell's Lives of the Lord Chancellors and Keepers, vol. iii. p. 274. * Pigot on Recoveries, 197. 302 THE COMMON-LAW EEPOETEES. " Bannister's Bridgman." No other recommendation will be needed of the volume than to know that Mr. Hargrave thought that the cases had been prepared for publication by Bridgman himself, and contemplated publishing the volume. Sir Matthew Hale ^ and Lord Holt '^ both refer to Bridgman's MS. as of superior authority ; and Mr. Fonblanque,^ who also had seen the cases in this volume before publication, speaks of them as far exceeding Carter's in copiousness, depth, and correctness. Lord Campbell, likewise, remarks,* that they undoubtedly show " a very learned, acute, and painstaking Judge." Bridgman took reports, also, in the King's Bench and Exchequer, in the time of Charles I. These have not been published ; and in addition to his own reports, published and unpublished, it would seem that he had a good collection of MS. reports in the interval between them, taken by other persons, as we may infer from the way in which they are cited by Holt, C. J.^ Few judicial characters have received more homage from contemporaries than Sir Orlando Bridgman. Lord Clarendon styles him " very eminent in the knowledge of the law ; " Lord Nottingham thought that he should not be mentioned but " with reverence and with veneration for his learning and integrity;" Lord Ellenborough, in modern times, pro- nounces him " a most eminent Judge, distinguished by the profundity of his learning and the extent of his industry ; " and one of his reporters assigns to him this highest compli- ment which a member of the profession could receive : " He always argued like a lawyer and a gentleman." ® We must add, however, that Burnet, Roger North, and other general 1 Pleas of the Crown, 303. Chancellors and Keepers, vol. iii. p- "^ Pigot on Recoveries, 197 ; 2 276. Lord Raymond, 1133. « Lord Raymond, 636; 12 Mod- ' Treatise on Equity, vol. ii. p. em, 443. 172 note. 8 Preface to Carter's Reports. * Campbell's Life of the Lord OKLANDO BRIDGMAN. 303 historians who eulogize his character as Chief Justice, record that, Hke Lord Littleton, he was greater as a common lawyer than in Chancery, where he held the Great Seal as Lord Keeper for a few years. Not many of his decisions as Lord Keeper have reached us, and these are but scantily reported. Lord Campbell, referring to the remarks of Burnet and North, observes of these few, that, so far as we can judge, the points which they decide seem to have been properly ruled. ^ I am not aware of the grounds on which Burnet and Roger North formed their opinions. It may have been because Bridgman had too true an idea of what equity is that he was supposed to have misunderstood it. It sometimes hap- pens that men are so far in advance of the time they live in, that their dimensions are badly seen by the common eye. The only evidence of his chancery capacity that I recall on the moment is a little dialogue reported in 1 Modern, 307, between him and his brethren, the Chief Justices of the King's Bench and Common Pleas, and Cliief Baron of the Exchequer, whom he had invited to assist him in a difficult case. It does no discredit to him as a Lord Keeper, and is interesting every way, by showing how far ahead he was even of such a man as Chief Justice Vaughan, in the de- partment of equity. The Chief Justice of the King's Bench had been citing precedents to his brethren ; and the dialogue thus goes on : — Vaughan, C. J. — "I wonder to hear of citing precedents in matters of equity ; for if there be equitj' in a case, that equity is an universal truth, and there can be no precedent in it. So that in any precedent that can be produced, if it be the same with this case, the reason and equity is the same in itself; and if the prece- dent be not the same case with this, it is not to be cited, being not to the purpose." Bridgman, Lord Keeper. — " Certainly, precedents are very neces- sary and useful to us ; for in them we may find the reasons of the ^ Campbell's Lives of the Lord Chancellors, vol. iii. p. 280. 304 THE COMMON-LAW KEPORTEES. equity to guide us ; and besides, the authority of those who made them is much to be regarded. We shall suppose thej^ did it upon great consideration, and weighing of the matter ; and it would be very strange and very ill if we should disturb and set aside what has been the course for a long series of time and ages." The Lord. Keeper's view prevailed, as the sequel shows ; for the court was ordered " to be attended with precedents." (Edns. : 8vo, 1823.) RAYMOND, SIR T. K. B., C. P., EX. 12 Car. II.— 36 Car. II. (1660-1684). Extending backward, with an interruption, to 1653. Sir Thomas Raymond was made a Sergeant of Law, Octo- ber 26th, 1677 ; a Baron of the Exchequer, May 5th, 1679 ; a Judge of the Common Pleas, February 7th, 1680 ; and of the King's Bench, on the 29th of April, following. He died in 1683. This reporter was the father of Lord Raymond, eminent likewise as a reporter. In Cole v. Hawkins,^ Ser- geant Salkeld, arguing, says that the case of Lee v. Raynes, at page 86 of this volume, is misreported by Raymond ; and he showed this by a MS. report of it by Chief Justice Kelyng, which he held in his hand, and in accordance with which the case is cited, 1 Keble, 799. (Edns. : 1st, fol. 1696 ; 2d, fol. 1743 ; 3d, 8vo, Dublin, ^793 ; 4th, Svo, London, 1803.) LEVINZ. K. B., C. P. 12 Cab. II.— 9 Wm. III. (1660-1697). Lord Hardwicke is reported to have said, that though Levinz was " a good lawyer, he was sometimes a very care- 1 10 Modern, 251. LEVINZ. 305 less reporter ; " i and Lord Parker,^ Chancellor, speaks of his having reported Leddington v. Kime ^ wrong in some points, though he was of counsel in it, — the best reason in tfie world, the Chancellor ought to have known, for his making the mistakes. So Chief Justice Willes,* referring to a par- ticular case in this volume, says that the opinion, as reported by Levinz, is so absurd that he can lay no weight on it, while Mr. Keble, though he seldom enlightens anything, yet lets his reader, in one place, into a knowledge which may possibly be a foundation of what the court went upon. However, the book, notwithstanding this censure, is frequently cited, and in Chancellor Kent's notice of judicial reports ^ is spoken of as " of authority." Lord Mansfield ® and Lord Kenyon '' speak of Levinz as a better reporter than Keble ; which, indeed, is not to say a great deal. In one instance, before Lord Holt, when a case cited from Levinz was opposed by a report of the same case by W. Jones, and the counsel, citing the latter book, sought to rest upon the superior reputation of it, Lord Holt said that the case was not well reported by Jones, but was reported exactly by Levinz, for that he. Holt, was counsel in the case.^ It appears by a record of Mr. Hargrave that among his collection is a MS. contemporaneous with Levinz, much more copious and in some respects different. Should Levinz ever be re-edited, no doubt he will be presented in a much improved form. In addition to Levinz's Reports there is a book (in folio, 1702) called Levinz's Entries ; and the curious prefer to make this volume a part of the series. The book is in Latin. 1 2 Vesey, 595. ^ 1 Commentaries, 486. 2 1 Peere Williams, 432 ; 10 Mod- « 5 Burrow, 27&1 ; 8 Pickering, ern, 403. 417. s 3 Levinz, 431. ' 3 Term, 17. < Willes, 245. * 2 Lord Raymond^ 885^ 2ft 306 THE COMMON-LAW KEPOETERS. Levinz was Treasurer of Gray's Inn in 1679, and succeeded Sir W. Jones as Attorney-General duiing the same year. " There is a gentleness in his opinions as Attorney-General," says Mr. G. Chalmers,^ " which does him high honor during an age of little scrupulosity." He was made Sergeant 29th November, 1681 ; and afterwards one of the Judges of the Common Pleas. In the worst times of one of the worst princes of the House of Stuart he was removed from office because, too inflexible in the cause of independence and right, he had resolutely opposed the King's dispensing power. Here is his own simple record, as found in closing his reports of cases in the second year of James the Second, the last that he gives us in that King's time : ^ — "Memorandum, that two days before the end of this Term, I received a supersedeas under the Great Seal, signifying the King's roj'al pleasure to discharge me from the oflBce of a Judge ; whereto I most humhly submit." He died January 29th, 1700-1, at Sergeant's Inn, in Fleet Street.^ Levinz was counsel of the Seven Bishops, a matter which has been recorded to his honor ; though Mr. Macaulay, the Whig historian, mentions* that he was induced to accept this place only by an intimation from the whole body of attorneys who employed him, that if he declined this brief he should never have another. Most lawyers who can recall their school-days will probably remember a certain "sum" in what is called "Arithmetical Progression," somewhat in this wise : — " A. agreed to buy a horse of B., giving him one penny for the first nail in the horse's shoe, 2d. for the second, 4d. for the third, and so on for every nail. Th# horse had eight nails in each shoe; and all four feet were shod. Bow much did A. have to pay for his horse?" 1 Opinions of Eminent Lawyers, ' 1 Lord Raymond, 622. vol. i. p. xxiii. * Chapters. » 3 Levinz, 431. LEVINZ. 307 Such is the "sum." When the young gentleman has brought the " answer " to this imaginary purchase, he is astounded by the thousands of pounds sterling that the rule of progression has disclosed ; but probably neither master nor pupil has ever dreamed that the arithmetic does but record an actual question, and the trial of a sharply con- tested suit at law, one that is reported in Levinz's Reports. It is the case of James v. Morgan, at Michaelmas Term, in the 15th of Charles II., at page 111 of our reporter's volume 1st. It there runs thus : — ^'Assumpsit, to pay for a horse a barlej'-corn a nail; doubling every nail ; and avers that there were thirty-two nails in the shoes of the horse, which being doubled every nail, came to Jive hundred quarters (about 4,000 bushels) of barley." The defendant, who had not studied his arithmetic, it ■would appear, until after his bargain was made, attempted, when be dijjcovered its results, to get off from the agreement. And the plea of non assumpsit being entered, the well-known question of the arithmetics came up in full form before the Lord Chief Justice of the King's Bench, impersonating, at Hereford, on the Circuit, the majesty of the law^s of England. The horse, it was proved, was worth in reality £8, and no more ; and the question therefore was, whether in a contract for the purchase of this beast, which the defendant had ex- pected to get for little or nothing, he should .be made to pay some dozens of times its value. Lord Chief Justice Hyde, fortunately for the defendant, took a very Mwarithmetical view of the case, and instead of the suit's ending with the same " Answer " that the " Arithmetic " does, it concluded with a verdict for £8, the value above mentioned of this highly honored brute. Among Levinz's cases are several illustrating the tenacity with which the gentlemen of the bar, now restored by the return of Charles the Second to their ancient dignity, deter- 308 THE COMMON-LAW REPORTERS. mined to maintain the hereditary requisition of their body for learned pleading and a liberal education. The cases some- times carry the matter to a point almost ridiculous. Here is one : ^ — Coleman v. Bard. [23 Car. II.] "Trover, inter alia de viginti mensiiris, without a,n Anglice, or specifying what measures : Et de viginti duodenis, Anglice gross, hamarum, Anglice Hooks ; not saj-ing what hooks. Moreover, duodenis being an adverb, which signifies twelve times, is here insensible ; but Duodenis Duodeeim is Latin for a gross, scilicet twelve times twelve ; and so it is in the Dictionary. And for these faults judgment was stayed u]3on motion of Levinz." A year or two later we have a still more minute illustration of the value of classical perfections.^ It is thus in the case of Hawkins v. Mills. [26 Car. II.] ' ' Error of judgment in Excester Court, because the award of the Venire Facias was ' Prcecept. est per Curiam quod venire fac. XII.' in figures. But being Roman figures, the court held it well enough: aliter if it had been thus, 12, in English figures (com- monly called in the United States Arabic figures)." In the next year we have the classical philology exhibiting itself again in ^}ie courts, and showing plainly either that the doctrine of idem sonans does not apply beyond proper names, or else that the barristers of the time of Charles the Second must have articulated vowel sounds in reading Latin, with a neatness and perfection absolutely exquisite, and worthy of the best days of the Roman stage. It was a point arising on Crowner's Quest Law ; the Crowner, as it appeared, in considering the case of a Mr. Parker, who had voluntarily drowned himself, not having, in his inquest, sufficiently 1 Page 11. 2 Page 102. LEVINZ. 309 observed the enormous difference which exists in the lan- guage of the law between Emergo and Immergo ; and the jury having determined, like Dogberry, " to let their writing and reading appear" only "when there was no need of such vanity." Here was the case : — The King v. Pakker. [27 Car. II.] "The Coroner's inquest, upon a 'View of the Body,' found that Parker feloniously threw himself into the river, &c., and in the said river ' seipsum Emergit,' and so killed and murdered himself" At the end of two years, and when no " view of the body " of any mortal man deceased was likely to be profitable, and a second inquest, therefore, could hardly be suggested, it was moved to quash the original inquisition, because it had found a no less absurdity than that Mr. Parker had drowned himself by getting out of a river instead of by getting into one. The counsel tried all kinds of ways to show his client's capacity for superintending the " Quest," and that the jury were per- fectly " senseless and fit men." The argument ah olendo is pathetically pressed. "What," the counsel asks, "should be done in this case ? for the party being dead and buried for two years, there could be no other view." He tlien argued, in legal style, that the averment that Mr. Parker had " killed and murdered himself,'''' cured such a mere bagatelle as the difference of sound between em and im: contending, proba- bly, for the identity to a common intent, and as evidenced in common reading, of the two words ; as also for the benignant regard with which, from immemorial time, courts had looked upon all proceedings of the Crowner's Quest. Conceding the Emergit, he might also have added that it would still not appear that after his ascension and now, Mr. Parker was alive. He had indeed emerged from the river ; but where 310 THE COMMON-LAW EEPOETEES. had he brought up? — a question of great importance upon such a discussion. It might have been that he concluded his emergement in the sea, to which place the river naturally- tended ; or, finally, he might have e-merged only because he was dead, and it was time for him to float. The E, however, was so well handled bj' the other side; all the organs of phonation — labial, lingual, dental, and in whatever other way distinguished — were so judiciously used by Mr. Parker's friends ; explosive vocality was no doubt, so terrifically sent resounding through the court-room, that the EM and the IM assumed enormous dimensions, and were made to appear like armed hosts, face to face in battle array. The " Aves se in mare mergunt et Emergunt," and the "Virtus depressa Emergit," of the purest prose of Cicero, were there, if needed, to drive the argument ; while the "Vasto Immergere ponto" of Virgil's sweeter verse might have served to clinch it. And, unfortunately, Mr. Parker had not only " killed and murdered himself," but had " so " killed and murdered himself ; that is to say, had killed and murdered himself by getting himself out of a river, instead of by putting himself into one. The difficulty was too great, even for seven justices to set right, and the counsel could neither get Mr. Parker into trouble, nor himself out of it. Thus, accordingly, speaks, in classically educated tones, — " The Court. Emerge is to arise OUT of the water, and not to drown himself IN the water : and the ' feloniouslj- threw himself into the river ' does not cure it ; for the going into the water does not make a felony, but the drowning himself in the water. And the conclusion, ' and so killed and murdered himself,' &c., signifies nothing, as being without the premises ; and to say that a man ' murdered ' himself, without saying how, is insufficient. "Inquest Quashed." We next have a case of personal interest to all learned fanciers of dogs, as well as to every lady who values her LEVINZ. 311 '''■(xenuine Otto of Roses," independently of the oftentimes worthless, though frequently pretty, little bottle which con- tains it. Here is this case : ^ — Chambers v. Waekhouse. " Trover, among other things, de sex catJJUs, quatuor caiJlllis, et una amphora Saporis. After verdict for the plaintiff, and entire damages, it was moved in arrest of judgment by Levinz, ttiat catTJlis signifies whelps, catllllis, little whelps, of any sort, either of dogs, bears, or other like beast. And non constat of what kind thej' here are ; and no property can be of whelps, (unless of dog- whelps.) Also the word ^saporis' signifies 'savour,' whereof no action lies. And the damages being entire, no judgment can be given." Here, apparently, was a fair case for objection even after verdict ; good ground, we should say, for arrest of any kind of judgment whatsoever. Levinz was right about his catlTlis ; " so it is in the Dictionary." Ainsworth supports him with his, in this day, as Stephens, and Littleton, and Cole, doubt- less did with theirs, in his own. Thus speaks Ainsworth to the point. " CatUlus — properly a little dog, a whelp ; but used for the young of all beasts, and perhaps of fishes. How- ever, Pliny useth it of Dolphins, 9, 8 ; Vipers, 10, 62 ; Drag- ons, 10, 72; Asps, 11, 74." Then as respected the("jar," how could a suit be maintained to recover a mere smell? Was not, however, a smell always a thing of essence ? And why in this case, if not inseparable from the jar, was it alleged at all? No recovery, therefore, could be had, except one which should include the " smell," as an inseparable incident and adjunct of the jar. The question was twice argued ; many cases, which Levinz gives us, being cited, as he tells, us, pro and con. Among those that were cited '•'■pro " — tliat is to say, for the plaintiff — were the cases of Grimes v. Stacks (Cro. Jac. 345) and 1 Vol. iii. p. 336. 312 THE COMMON-LAW liEPOETEES. Wadhurst v. Damme (id. 845), in which it was decided that trover lies of ^^ Mush-rats ," '■'■ Monkies," and '■'■Negroes,'^ "be- cause they are merchandise," — decisions quite in point to show that trover would lie for " young puppies," when young puppies were properly described ; but not tending at all to show what Latin word performed the difficult descriptive office. The sad desuetude, however, into which the courts had suffered their Latin to fall during the long reign of ignorance in the time of Cromwell seems to have worked its disad- vantages to classical literature in this special case, both as respects the matter of the "little whelps," and also as con- cerned the " savour." ^ The court, Levinz tells us, gave judgment for the plaintiff on the matter of " the whelps," for that it would '■'■intend them dog-whelps;" while as re- spected the " savour," they would " intend " still further, and consider their judgment as given for the jar alone, regarding the savour as a mere incident. The intendment of the court on the first point it is difficult to reconcile — we may, perhaps, take the freedom of remark- ing — with the admitted fact in natural history,^ that many animals produce as many " little whelps " at a litter as dogs do; while the other intendment, the one about the "smell," — and which flies in the face of the Horatian truth, — " Testa recens Quo serael est imbuta, diu servabit odorem," can, in fact, be reconciled with the legal principles only by a supposition which the Scriptures would almost dissuade a reverent man from making, that the savoring element had " lost its savour." 1 The case, indeed, it ought to whieh may account for the deci- be added, was not in the time of the sion. Stuarts, but in the revolutionary and ^ See Buff on, passim, ignorant era of the Prince of Orange, LEVINZ. 313 Levinz gives us also ^ a case of interest in these times and in this country, and shows one ground of the doubt, often expressed in the United States, — North as well as South, — as to the correctness of the memorable declarations of Lord Mansfield in the case of the negro Somerset,^ and since made immortal in Cowper's line, — " Slaves cannot breathe in England." It is the case of Butts v. Penny. "Trover for 100 negroes, and upon non culp., it was found by special verdict, that the negroes were infidels, and the subjects of an infidel prince, and are usually bought and sold in America as merchandise, by the custom of merchants, and that the plaintiff bought them, and was in possession of them until the defendant took them. And Thompson argued, there could be no property in the person of a man sufficient to maintain trover, and cited Co. Litt. 116, that no property could be in villains but by compact or con- quest. But the Court held, that negroes being usuall}- bought and sold among merchants, as merchandise, and also being infidels, there might be a property- in them sufBcient to maintain trover, and give judgment for the plaintiff, nisi causa, this term ; and at the end of tlie term, upon the praj-er of the Attorney-General to be heard as to this matter, day was given uutU next term." In contrast with this horrid and afflicting subject of negroes and negro slavery, Levinz presents us also with a case whose very title and subject stirs us up almost as with silver sounds. It is a suit brought by Sir William Juxon against Lord Byron, and involved the question of Lord Bja-on's right to tythes " in the manor of Rochdale in Lancashire." " Lord Byron ! " " The manor of Rochdale in Lancashire ! " Two hundred years have passed since this suit was a matter of living interest to any one. Yet how fresh are these names in this day, and wherever the English language is read ! They are 1 Page 201. = Lofft, 1. 314 THE COMMON-LAW EEPOETEES. the very words, and in fact — except the obituary date, and a record of liis effort to restore to Greece her " ancient free- dom and renown " — almost the only words, which the Ameri- can reads as he stands a pilgrim beside the poet's grave in the village church of Hucknall ; " The author of Childe Harold's Pilgrimage," alone, being added to them : " My manor or lordship of Rochdale in the said county of Lancas- ter," being moreover in the poet's will, the first subject of his disposition, and "My manor and estate of Newstead," being postponed to it. Byron, it is said, was prouder of his descent than of " having been the author of Childe Harold and Manfred." The Lord of Levinz's case was, I think, the first of his family who was ennobled, and he was one of the bravest adherents of Charles the First. I doubt if the poet ever saw this case, or even if his kinsman and counsel, Mr. Dallas, ever did. Byron himself would, in some one of the numerous records about the honor of his ancestry, have mentioned what Levinz does, and what I am happy to repeat, — that the Lord Byron of that day won his suit. (Edns. : Of the Reports, fol. Fr. 1702 ; 2d, 2 vols., fob 1722, Fr. and Eng. ; the translation by Salkeld. This edition ought to contain a print, by White, which is, in point of engraving, above mediocrity. It is also found sometimes in the Entries. 3d, 1793-7, 3 vols, small 8vo, in English alone. The translation of the cases in this edition is a reprint from Sergeant Salkeld's of 1772 ; that of the pleadings, which Salkeld gives in Latin only (as he found them in the Entries), is by Mr. Vickers, an English barrister, under whose super- vision the 3d volume of this 3d edition was published. The 8vo edition is neat and convenient, and good enough, I, suppose, for ordinary references. I prefer, however, the old folio of Sergeant Salkeld ; in which you have the reporter's original language con-columned with a translation, which may serve to explain, but not to displace it. You can thus see what the translator has been doing : whether, as is the LEVINZ. — KEBLE. 315 case with most of the old " doers into English," he has turned his master's sense into nonsense ; or whether, falHng into the sin of more intelligent translators, he has committed as grave a crime by turning nonsense into sense. There is a satisfac- tion in knowing that you read an original, no matter how imperfect, which you lose when forced to rely upon even the most faithful interpreter.) KEBLE. K. B. 13 Cah. II.— 31 Car. II. (1661-1679). Keble, like Siderfin, has had the happiness, until quite lately, perhaps, to unite all opinions. Willes, C. J., speaks of him^ as a "reporter who seldom enlightens anything." Mr. Justice Park burned his copy, thinking it not worth while to lumber his library with trash. Mr. Justice Ash- hurst thought that the bad character of the author was quite sustained by the intrinsic evidence of one of its reports.^ Lord Mansfield ^ called him " a bad reporter ; " and the Baron of Gredington, who, it is known, overruled most of his great predecessor's other judgments, dissented not in this.* His cases, generally speaking, are mere notes, very short, with no state of the case, nor anything which goes to make a full report. However, though so bad a reporter, Keble is styled by Burnet, J.,^ " a tolerable historian of the law ; " and by Lord Hardwicke, " though very far from being accurate, a pretty good register." ^ Inde'ed, the fact that Keble is but a Regis- ter must be constantly borne in mind. You must look into ^ Willes, 245. way's Cases, 100 note ; 6 Bingham, 2 4 Term, 646. 664. = 1 Douglas, 305. « 3 Wilson, 330. * 3 Term, 17; 4 Id. 649; Ridge- « Ridgeway's Cases, 100; Fortes- cue, 162. 316 THE COMMON-LAW EEPOETEKS. the Table of Cases to find the whole report, which is always broken up if the case extended over several days. He printed his notes just as he took them in court. They are thus often the materials for a Report, rather than a Report itself. Persons who are patient, and have learning and sagac- ity of their own to put the pieces together, may find Keble very useful. Possibly, also, Keble has a worse fame than he deserves. I have already noted (supra, page 805) a comparison by Chief Justice Willes, of one of his cases, with the same cases as reported by Levin z. In the same case that Lord Mansfield discredited him generally, he admitted that par- ticular inquiries confirmed the report ; and in another, when put aside by Sergeant Glynn, at the bar, as of no authority, the Earl adverted to the coincidence of his report with one of the same case by Freeman ; and the court gave judg- ment according to the precedent cited. The censures of Lord Kenyon and Sir William Ashhurst are still more open to the censurer. " In the case cited from 4 Term, 646 and 649," ivrites Mr. Heterick, of the Virginian bar, to me, "Lord Kenyon and Judge Ashhurst discredited Keble, among other grounds, because, in the case quoted at the bar from him, he referred to another case, Norden's Case, as having been decided at the preceding term; while neitlier he himself nor Levinz reports the case among the decisions of that term. It would appear, however, that though Keble and Levinz do not report the case as of the term to which Keble, in the case discredited, assigned it, }-et Thomas Jones, page 88, does ; and that Keble and Levinz also report it under the name of Norden v. Levit, as of the term but one before. (3 Keble, 778 ; 2 Levinz, 189.) The case is also reported by Freeman, 442. Lord Kenyon and Judge Ashhurst disliked the case quoted at the bar, from Keble, and discredited it through the reporter ; hut it was affirmed in the House of Lords, 6 Modern, 94." So, in a case decided since the third edition of the present Work appeared, Farrall v. Hilditch, 5 Common Bench, New KEBLE. 317 Series (94 English Common Law), 855, the Court of Com- mon Pleas, while admitting that Keble is of no high repute as an accurate reporter, and that the Bench would be slow to act on a case in that book if it were unsupported by others, yet finding that the case cited from this chronicler had countenance in cases reported in Leonard, Yelverton, and other reporters, and the reasons of the thing leaning that way, decided the case before them in accordance with the case reported by Keble ; and referring to the present Work in terms extremely courteous, remark, that it appears from my observations (which in truth, however, were Mr. Heterick's observations, and not mine) that more is to be said for the character of this reporter as " a tolerable historian of the law " than from the remarks made upon him from time to time might have been supposed. I may add, perhaps, that Keble's Reports help, often, to explain difficulties in contemporary Reports of better credit in general. Thus in the case where Willes, C. J., said that Keble seldom enlightened anything, he added : " Yet he let me into the knowledge of a matter which might possibly be the foundation of the opinion of the court," — a matter the omission of which in a report by Levinz made the decision appear, said the Chief Justice, " so absurd that he could lay no stress on it at all." Again, in 2'Lutwyche, 1226, it is said, in referring to the case of Smith v. Farrally, reported by Carter, 52, " See this case in 2 Keble, 29, 55, and 84 ; for, as it seems, some things are there said which are worthy of ob- servation, and which are not said in any other Report." ^ "It may be here remarked," says Mr. Heteriek, "that during the term covered by Keble's Reports the Court of King's Bench was not always iilled by able men. So that if the reporter was weak, the Bench was not always strong." 1 Vide le dit case in 2 Keble, 29, observable et queux ne sont dits in 55, and 84, car, comme il semble, aucun autre report, sunt ascun choses la dits queux sont 318 THE COMMON-LAW EEPOETEES. The cases are usually uninteresting every way. However, it is Keble who gives us the great and well-known cases of Manby v. Scott and Collingwood v. Pace, interesting on points of law. A few of his reports are interesting also for incident. In Walcot v. Tappin ^ we have an illustration of the acuteness of the courts of that day in circumventing a dishonorable effort to avoid payment of a wager, then lately lost by a Republican, to a Royalist. While Cromwell was still in power, or at any rate before Charles II. had got to his throne, one Tappin, it appears, had bet Walcot £20 against 20s., — " If Charles Stuart should be King of England within a twelvemonth ; " the doubt having obviously been whether Charles would be restored. Charles having got back to the throne within the twelvemonth, suit for the wager was brought ; and Scroggs, availing himself of the fiction of law that ignored the existence of Cromwell's twelve years of government, and made the restoration the twelfth year of Charles II. (the fiction being that he was King of Eng- land all the while), now moved " that this doth imply that he was not Icing at the time of the promise ; as promise to a married man that he be married within a month," &c. The court, however, loyal as they were, find an answer, and decide that the form of the wager does not deny that Charles was king all the while, but only raised the question as to whether he would continue to be king ; the intimation of the court being obviously that he might die, and so cease to be king ; and they accordingly gave judgment for the loyalist, who had been willing to venture even one against tw-enty in favor of the King's chance. Walsingham v. Combe ^ is a case of striking regard shown to an old and sick defendant. The reporter tells us that " the court being divided in opinion, and the defendant aged and sick, upon the prayer of Powis, they gave him judg- ment ni&i, not to be entered before the next term, unless 11 Keble, 56. » 2 Keble, 47. KEBLB. 319 Jie died in the mean time.'''' The defendant was so unfortu- nate as not to die, and at the next term ^ judgment was given for the plaintiff ; the court overlooking some bad pleading of which he had been guilty, " but admonishing the attorneys," says Keble, " that they do not hereby introduce barbarism.^' In The King v. Buckenham ^ there is an illustration of the severity with which the earlier courts protected their own dignity. The defendant, who had been convicted of striking one Hurlstone in Westminster Hall, being sentenced to im- prisonment during life, to forfeit his lands during life, and all his goods (absolutely as would appear), and " to have his right hand strook off in the palace yard." At page 562 of volume I. we have a speech from the noble historian of the Great Rebellion, now made Lord Chancellor and Earl of Clarendon, to Sir Robert Hyde, upon that person's being appointed, by Charles II., in October, 1663, Chief Justice of the King's Bench, in the place of Sir Robert Foster, then recently dead at an advanced age. The speech, though obviously a good deal mangled, is interesting as a historical record. In its injunctions to the new Chief Justice, we have a strong evidence of the unsettled state of the police of that day, of the neglect of duties into which the Inns of Court had fallen, and of the extent to which some of the court vices had introduced themselves with the Restoration, in advance of either court virtues or court advantages. The new Chief Justice, who was a nephew of Sir Nicholas Hyde, Chief Justice of the King's Bench, had previously been a Judge of the Common Pleas, appointed by the same king. The Chancellor tefts him, standing at the bar, that of the Judges of Charles I. he alone (Hyde) now remained, a sign that the civil troubles had been long ; that after this long-suffering of the law and lawyers, King Charles II. had thought it best to call men of the best reputation and learn- ing to renew the reverence which was always due, and had 1 2 Keble, 51. ' 1 Keble, 751. 320 THE COMMON-LAW EEPOETERS. formerly been paid to them both ; that accordingly, so soon as he heard of the death of the former Chief Justice, full of days and reputation, he had resolved on him (Hyde), the ancientest of the Judges now left, to fill this vacant place. The Chancellor then points out to him the great advantages which he (Hj'de) had enjoyed every way. " You are the son," he said, "of as eminent a lawyer as any in his days, — days which were the times of learned men. He gave you the advantage of being in his chamber. In addition to this, he was happy in his family, and left behind him handsome fortunes ; for, though you were among the youngest of twelve sons, he yet saw you promoted to the dignity of Sergeant, and left you enough to be able to live without the help of an older brother. Then your integrity will be displayed upon a field fit to exhibit it ; for here you come to sit among such persons as you desire. On all these accounts, both the King and kingdom expect great reformation in the activity and severity of tliis court." The Chancellor impresses upon him the necessity of courage, — "a quality," he says, " as neces- sary in a Judge as in a general ; of patience and self- control ; — angry Judges seldom giving good ordera ; " — of keeping up his law-learning and capacities, which, having brought him to this post of eminence, should now, least of all, desert him. He charges him to punish sturdy offenders, especiallj' robbers and burglars ; commending to him herein the example 4f his uncle. Sir Nicholas, who, it appears, had been a terror to these persons. He beseeches him to inquire into the general wickedness of duelling, and the provocations and grounds of them ; to fine and imprison fighters and the carriers of challenges, — "a discipline which, although they escape death, will make them dread this court more than, while engaging in such affairs, they did the day of judg- ment." He thanks God, in conclusion, that open conspira- cies have been avoided, and tells the Chief Justice " to take care that there be no conspiracies in doors ; " by which he KEBLE.- 321 means, apparently, within the bar. He therefore tells him to look after the Inns of Court, two of which, he says, have omitted reading this vacation, a matter which he bids him take care of and to reform. Sir Robert answers in becoming style. He had ever been of the opinion of the Wise Man, " not to seek to be a judge, nor to ask to sit in the seat of honor." Conscious of his own defects and small learning, which he says, somewhat oddly, had been lessened by ^'■plunders in the late times" — he could not but admire his Majesty's grace in advancing him to be a Judge. The favor of the Lord Chancellor, and the learning and experience of the " assistants " he is to meet with, makes him hope not to sink under the burden of his new office. But he will endeavor to show his duty in general practice, rather than in promises on the particular subjects mentioned by the Chancellor ; hoping only for pardon of any sins of infirmity, and asking none for those of wilful corrupt dealing. He mentions a fact interesting to us specially : " 7 attended Coke's time as a reporter here ; " and concludes with saying that " as he said when he was made Chief Justice, I say now, ' I will behave myself with all diligence and honesty.' " Sir Robert, unfortunately, did not long enjoy his new office. Keble ^ mentions that he " died suddenly, May 1, 1665 ; " about eighteen months after his appointment. An entry under the same date, that " Windham, J., being sick, he came not until Monday, April 17 (1665), and went off sick on Friday," may indicate, perhaps, to a medical reader, the first signs of the Great Plague which visited London a few weeks after. Keble does not mention the cause of Hyde's sudden death,^ nor of this intermittent sickness of Windham ; but records which he gives of September of the same year, and of the January following, show the terror which this pestilence with reason inspired. He tells us that on Hyde's 1 Vol. i. p. 861. Salisbury Cathedral, states that it " His monument, however, in was the plague. 21 322 THE COMMO'N-LAW EEPOETEES. death, Keeling, Puisne Judge, was made Chief Justice, and, being sworn at the Chancellor's lodging, came up privily to Oxford, to which place the court, by proclamation, had been adjourned, took his place on the 22d of November, 1665, in the Logic School there ; and in the same manner, upon the 24th of November, the Friday after, came up Moreton, the King's Sergeant, to be Puisne Judge ; " the business being only motions, to prevent any concourse of people, the sick- ness, by reason whereof this was removed, being spread into most countries," and seven thousand one hundred and sixty- five persons having died in London the week before. In the following term, though the plague had greatly decreased, such as had left their houses in Loudon, says Keble, were "much terrified ; " and on Saturday, February 3d, 1666, the Judges — Keeling, C. J., and Twisden, Windham, and More- ton, JJ. — sat at Windsor Castle, " having given strict orders that no records of the Pleas on Criminal side should be removed." Keble gives us no reports of anything done during the continuance of the plague. After so full an account as that which precedes, of both the character and the contents of these volumes, it may be worth while to record what little I ever heard or read of their author. Twenty years and more after I had published the first edition of this book I was wandering one pleasant morning among the ruins of Poestum, little dreaming, in delicious Italy, of my old friend Joseph Keble ; indeed, amidst such scenes as those about Salerno, Amalfi, and Poz- zoli, having almost forgotten that there -were any books extant besides Dante and Boccacio, or that there could be any law to govern the world, besides that of the " dolce far niente," that has been largely my own. Treading amidst these venerable and beautiful ruins, I saw beneath my feet some fragmentary leaves. They looked like those of an English work, and I stooped down to pick them up. They were wet and moulded. How long they had lain there I KEBLB. 323 could not tell. The titlepage was not among the few parts of the work that were left ; but I discovered, from other indications, that the book, when it was a book, had been called " Maunder's Biographical Treasury ; " strange work to find in-such a place! It had been stuffed, I suppose, into the travelling wallet of some British tourist, who, having used as many of its leaves as would light cigars enough to drive away malaria, had thrown away as useless the pages which I found. The day was lovely, and seating myself upon one of the broken columns of the temple of Ceres, I began to see what riches my " Treasury " contained, when, behold! beside the names of Wellington, and Nelson, and Burke, and Webster, and Washington, I stumbled upon that of my much-abused acquaintance of other lands, Joseph Keble, the Reporter ! Mr. Maunder presents him to us under aspects that I, perhaps, above other persons, and as having special charge of his fame, am bound to signalize. He speaks of him as an individual whose industry was so remarkable during his whole life, that some account of it is " absolutely due to his memory.''^ After giving his birth as having taken place about the year 1632, and his call to the bar (subsequently to having studied at Oxford) in 1658, the biographer informs us that three years afterwards he began to signalize himself by the constant regularity of his appear- ance at the Court of King's Bench, where, from that time to the day of his decease — a period of near half a century — he occupied liimself incessantly as a reporter of the cases which came before the court. " Nor was he less perse- vering," says Maunder, "while attending the chapel ; copies of upwards of four thousand sermons, delivered by various preachers in that place of worship, being found among his papers when he died, in 1710." In addition to the " Table to the Statutes" and "The Assistance to Justices of the Peace," both of which are possibly known to the profession by their titles, the biographer further informs us, that Keble 324 THE COMMON-LA"W KBPOETEES. found time to write and publish " Essays on Human Nature and Human Actions." ^ Tiie claim to industry, it must be admitted, is fully made out. Four thousand sermons ! " Great," indeed, must have been "the company of preachers." Marvelous the patience of the man who reported them ! Had our pious reporter attended chapel twice every Sunday for thirty-eight entire years, without missing a single day, he would still not have reached to this enormous score. Indeed, with the evidence that the three huge folios which he has left the bar gives us as to the way in which he occupied himself during six days of the week, it is almost incredible that he found time for anything but repose and saying his prayers on the seventh and only remaining one. It would be curious to see some of Keble's Reports of Sermons. It was the age of Ken, Taylor, and Barrow. One might judge how far his reports of ju- dicial decisions, in the absence of all manuscript, were worthy of attention, by seeing how far his reports of sermons agreed with the same discourses as since printed. Certainly it would be amusing, considering how little his half-century of incessant toil in courts has been esteemed by the profession to whom he gave it, — that his four thousand sermons have never been printed at all for anybody, and that everything else which he gave to the world has long since passed to oblivion, — if one happened to find among his piles of sermons anything of his contemporary Dr. Barrow's two noble discourses upon that virtue of Industry for which Keble himself has been presented to the world as so eminently conspicuous. " In- dustry," says the great master of Trinity College, in some passages,^ which, if he knew Keble, and had been a less good 1 The Biographical Treasury, a space, i. e. twenty-one lines to each. Dictionary of Universal Biography, To Leonardo de Vinci he gives 30th edition, tit. "Keble." Mr. ten! Maunder devotes to Michael Angelo ' Barrow's Sermons, London, and to Keble the same amount of 1849, pp. 331, 353, 354. KEBLE. 325 Christian than he was, one might think had been aimed at that septuagenarian's useless cart-load of various labors — " Industry does not consist merely in action, but the direc- tion of our mind to some good end, drawing after it our entire powers. By ' business,' in the text, ' be not slothful in business,' we may understand any object of our care and endeavor which is productive of some fruit or recompense answerable to them ; the which hath ' operse causam,' a need of labor, and ' operse pretium,' some effect worth our pain. There are many things about which men with great earnest- ness employ themselves called business, but not deserving that name. There is Kevoa-irovSia, a vain industry. ' Aliud agere,^ to be impertinently busy, doing that which conduceth to no good purpose, is, in some respects, worse than to do nothing. It is a throwing away of labor and care." Poor old Keble ! In his seventy-second year, at the close of his long life, and long and patient and useless labors, he might rather take consolation from another passage ^ in one of the same noble discourses, — a passage worthy of Barrow's heart, as the others were of his caustic wit and of his powerful mind : " He that aspireth after worthy things, and assayeth laudable designs, pursuing them steadily, with serious appli- cation of heart and resolute activity, will rarely fail of success : and if he should hap to fail in his design, yet he will not lose his credit ; for, having meant well and done his best, all will be ready to excuse, many to commend, him." Honor and peace, therefore, to the shade of good old " Keble the Industrious ! " It is worth noting that Keble the Eeporter was an ancestor of Keble the Poet, author of The Christian Year. Besides the reporter, Joseph Keble, there was another person, Richard Keble, who, with Whitelock and Lisle, was one of the commissioners of the Great Seal. (Edns. : In regard to a work equally distinguished for its 1 Barrow's Sermons, London, 1849, p. 341. 326 THE COMMON-LAW BEPOETEES. size and comparative worthlessness, it may be conjectured that a single edition records the history of its issues. This bears the date of 1685, and, when complete, is in three ponderous folios, sometimes distributed into four.^) FIRST OR J. KELYNG. K. B. (PLAC. COR.). 14: Car. H.— 22 Car. H. (1662-1669). Mr. Vinbr, a competent judge of the matter, in the 3d volume of his Abridgment, page 532, citing this book, calls Kelyng " agreatman; " and Sir Thomas Raymond, page 209, on recording his death, styles him " a learned, faithful, and resolute judge." It is said by Sir Michael Foster ^ that these Reports were published by Lord Holt, and the preface is said, by an Irish 1 On this last point, the size and number of the volumes, a matter ■which is connected with the tables to the work, the purchaser of Keble should be upon his guard. Each volume ought to have two tables, viz. : a Table of Cases and a Table of Matters; the first at the begin- ning, and the other at the end of the book. The last, that is, the Table of Matters, is, however, sometimes wanting. This is owing to the fact, that in consequence of the minute- ness with which the tables were pre- pared, they were not ready for the press as early as the Reports. In- deed, these latter had been printed before the tables could be made, so that the tables were printed after- wards by themselves, in a fourth and separate form. The zeal with which a new publication is sought took forth some copies of the Re- ports before the Table of Cases was printed; and in such cases, unless the owners of the imperfect sets afterwards added a fourth volume to their preceding three, the series, of course, was incomplete. Such copies of the book as were not bound until afterwards, and when the Tables of Matters were ready to be bound with them, usually have these three tables under the same cover with the volumes of the Reports to which they respectively belong; and in these cases the work is complete, though but in three volumes. But somewhere or other the Tables of Matters ought to be found, either in the volumes which contain the Re- ports, or in a fourth volume by themselves. 2 Reports, &c., 204. FIRST OK J. KELYNG. 827 Justice, to have been written by him.^ There is no doubt of the truth of either statement. Indeed, Holt reported the three cases at the end of the old editions of the volume, pp. 89-138. The Tolunie is spoken of by Mr. Russell, in his work on Crimes,^ as a book of high authority. It is a book, however, said the Justice above mentioned, which can never be referred to without reprobating the course which appears there to have been taken, — of Judges and Crown counsel meeting together to settle, revise, and rule beforehand the points of the trial. I have never read the volume thus spoken of, and know nothing about its merits ; but Lord Campbell, in his Life of Kelyng, who was one of the Chief Justices of the King's Bench, remarks as follows : ^ — " I ought to mention, among his other vanities, that he had an ambition to he an author ; and he compiled a folio volume of de- cisions in criminal causes, which are of no value whatever except to make us laugh at some of the silly egotisms with which thej' abound ; '' — a special sort of criticism, I should say, to be made by so voluminous an author as Lord Campbell, upon a book written by one of his predecessors and given to the public by another. Chief Justices, though not Lords, treat one another, whether dead or alive, more deferentially in our Democratic Republic, and record no jests about their brethren. Since, however. Lord Campbell has opened the door to all of us, we may insert the following amusing little passage about Kelyng, from 2d Modern, page 9, which the reporter of that volume gives us, with all gravity, among the Memoranda of the Term : — " Memoeandum. " Seventeen Serjeants being made on the 14th day of November (21 Charles II.), a day or two after, Serjeant Powis, the junior 1 Fitzgerald, J., in Mulcahy v. " Vol. ii. p. 244, 4th edition. The Queen, Irish Reports, 1 Com- ' Lives of the Chief Justices, vol. mon Law, 64. i- p- 496, Philadelphia. 328 THE COMMON-LAW KEPOETERS. of them all, coming to the King's Bench, Lord Chief Justice Kelyng told him that he had something to say to him, viz., that the rings which he and the rest of the sergeants had given, weighed but eighteen shillings a-piece, whereas Fortescue, in his book ' De Laudibus Legum Anglice,' says, ' The rings given to the Chief Justices and to the Chief Baron ought to weigh twenty shillings a-piece ; ' and that he spoke not this expecting a recompense, but that it might not be drawn into a precedent, and that the young gentlemen there might take notice of it." The volume is cited as First or J. "Kelyng, and must not be confounded with Second or W. Kelynge, mentioned further on. (Edns. : Fol.- 1708, and again, the titlepage alone being changed, 1739, 8vo, Dublin, 1789, with references and notes by Browne. Neither of these editions contains all the cases Sir John Kelyng collected and left in MS. A third edition, in 8vo, was published in 1873, which contains seventy new cases not in the -first edition. The additional cases, for the purpose of distinguishing them, are printed in red ink.) CARTER. C. P. 16 Car. H.— 28 Car. II. (1664-1676). With some cases in the time of C. J. Vaughan. This is but an inaccurate volume. When it was cited before Lord Holt, he is reported to have said, that " he did not know that Carter, nor would allow that report for any authority." ^ So Treby, C. J.,^ referring to a case in Carter, said that it was in point, " as far as the book is authority," — a matter which he plainly questioned. And though Lord ^ Comberbach, 442; 4 Common ^ Scattergood v. Edge, 12 Mod- Bench, 592 note. ern, 287. CABTEE. 329 Mansfield once relied ^ on a report of Carter's,^ as to what 0. J. Bridgman had said, yet, by reference since to Bridg- man's own MS., there appears to be nothing said by the Chief Justice of the sort attributed to him by Carter.^ Many of the cases in the old Reports, as we have already noticed, possess an interest independent of their value as precedents, and constantly let us into points of social, do- mestic, and other history, more or less interesting. Carter is undoubtedly one of the least valued of all the reporters ; yet he gives us a case,* somewhat suggestive, perhaps, and therefore interesting, in the history of the instruction of the deaf and dumb in England. The art of imparting instruction to the deaf mutes, — as by translation of the French name we now begin to call the " deaf and dumb " of our childhood, — it has been supposed, is a matter of but late date every- where, and of especially late date in England. A Historical Essay now before me speaks as follows : — " Efforts had been made to impart instruction to the mute in the latter part of the fifteenth century, by Agricola, of Heidelberg. He was followed by Pedro de Ponce in 1570, John Bonet in 1620, by Holder and Wallis, and Van Helmont, about 1659, by Amman in 1691, and by Kerger in 1704. But it was not until 1743 that Pereira demonstrated the practicability of educating the deaf mute. Heinicke and De I'Epee devoted all their energies to form a regular plan, and after years of assiduous application each produced a system ; and thus, about the year 1755, the two systems, one of Germanj', the other of France, were established. After having, with pious zeal, devoted the greater portion of his life to promote the welfare of the deaf and dumb, De I'Epee died in 1789, aged 77. His mantle fell upon his illustrious pupil, Sicard. By him the system of De I'Epee was greatly improved. During his long and checkered life, amid perils and misfortunes, his great object, the cause of the deaf mute, was kept steadily in view. He lived to witness the success of his labors, and departed in the eightieth j^ear of his age, » 1 W. Blaokstone, 166; S. C. 1 » 2 Fonblanque's Equity, 170 Eden, 230. note. ^ Geary v. Bearcroft. * Page 53. 330 THE COMMON-LAW BEPOETEES. on the 10th of May, 1822. The efforts of Heinicke, De I'Epee, and Sicard had aroused public attention in Europe, and schools were established in different places. In America, however, little was attempted until 1815." ^ The name of England, or of any Englishman, is not here mentioned ; and we might suppose that the rule which is laid down by Mr. Wackerly, a Reader of Lincoln's Inn, in June, 1626,2 that if a person is horn deaf and dumb he is neces- sarily non compos mentis, had been admitted by the courts, and always been a fixed conception and fact in English law and sociology. Carter, however, gives us two cases, one as far back as the year 1659 at least, — perhaps much earlier, — the other in the year 1666, of persons horn deaf and dumb, but who, as they grew up, had become sufficiently instructed to understand, in a general way at least, the tenure and nature of real property and the modes of alienating it, and where, in one case, if not in both, their alienations by fine were re- ceived and allowed by the courts of justice in those days. The reports as found in Carter run thus : — * Annual Report of the Board of being so deaf and dumb, made a Directors of the Pennsylvania Insti- charter of feoffment of the land tution for the Deaf and Dumb, for where," &c., the defendant, we are 1856, p. 5. told, demurred in law. He, it is 2 See Dyer, 56 a, Vaillant's plain, asserted that a man bom deaf edition, note 13. Mr. Wackerly 's and dumb, and so continuing all his position, so far as I can discover, life, might perfectly well make a wants other foundation in law as an good feoffment, and that this was absolute position, beyond such as it known judicially to-the court. This may get from short passages in Brae- early case of Dyer's, therefore, ton and Brooke. (See 4 Johnson's points in the same direction as those Chancery, 443, 444.) In the case that I cite further on in the list; of Young V. Sant, in Dyer, 56 a, that is to say, that persons 6orn deaf a case of trespass quare clausum fre- and dumb had then — as the court git, when to a plea of feoffment by would judicially notice — been suffi- the plaintiff's ancestor the plaintiff ciently educated to understand the replied that this ancestor, " from nature and effect of legal instru- the time of his birth until the day of ments, such as a Charter of FeofE- his death, was deaf and dumb, and ment. CARTER. 331 " Martha Elyot's Case. "Beidgman, C. J. — A woman, horn deaf and dumb, comes before me to levj a fine. She and her sisters have an house and land. An uncle hath maintained her, and taken great care of her, and he is to buy the house and land of them ; and he agrees to maintain her if she will pass her land for security. As for her in- telligence^ her sisters say she knows and understands the meaning of all this. I demanded what sign she would make for passing away her lands ; and, as it was interpreted to me, she put up her hands that way where the lands lay, and spread out her hands. It being a business of this nature, and for her own good, I thought fit to communicate it to you." The reporter does not tell us what the court in banc finally ordered,^ but goes directly on, mentioning another case, apparently stated by Bridgman to his brethren, and anterior even to the time when the one before them happened, — a case before Justice Warburton, the latest of whom of that name, according to Mr. Foss,^ sat between the years 1649 and 16^, in which term the fine was certainly taken, if not cer- tainly taken before ; this last not an improbability, since there was also a Justice Warburton who died in 1621 ; ^ who might have been the " Justice Warburton," nearly as well ^.s the one to whom I rather refer the fine. The report says : — "It was one Hill's Case. Hill was horn deaf and dumb, and he was brought before Judge Warburton to levy a fine. Judge Warburton would do nothing till he had examined him and found him intelligent ; and so he took the fine." While on this subject of the History of the Deaf and Dumb, as illustrated by British Law Reports, we may ad- vance a little furthei". 1 Chancellor Kent (4 Johnson's nation of her. I know not if the Chancery, 443), citing Elyot's Case Chancellor found elsewhere than in from Carter, 53, says that in it Carter a record of the final action of Bridgman, C. J., and the other the court in 6anc. Judges of the C. B., admitted a wo- ^ The Judges, vol. vi. p. 497. man to levy a fine after due exarai- * Id. 196. 332 THE COMMON-LAW EEPORTERS. About a century later, A. D. 1754, but yet only eleven years after, we are informed that Pereira first " demonstrated the practicability of educating the deaf mute." We have the case of a young woman born deaf and dumb, giving sensible answers in writing to Lord Hardwicke, and allowed accordingly by him to take absolute possession of her own estate, real and chattel, on coming of age.^ Here is the report, to the reader of modern Chancery Cases refreshing for its brevity : — "Dickinson v. Blisset, [20th Dec, 1754.] " A party horn deaf and dumb, attaining twenty-one, applies for possession of her real estate, and to have an assignment of her chattel estate; Lord Hardwicke, C, having put questions to the party in writing, and she having given sensible answers thereto in writing, the same was ordered." We may be sure that before such mea as Chief Justice Bridgman and Lord Chancellor Hardwicke would, in the case of young women especially, have allowed the one to deprive herself of her surest and apparently only means of support, by levying a fine of her real estate in favor of an uncle who had brought her up, her guardian, probably ; and where the court would have properly assumed the existence of influence, — the other, — have handed over to a woman in the same condition from nativity her chattels and real estate, — they must have been thoroughlj^ satisfied of the entire intelligence of the parties, and of their understanding perfectly well all they were doing, and the effects of it. Carter seems to signify to us in the first above cited case of Martha Elyot that the young woman " spread out her hands," beside " putting up her hands ; " and that this re- quired in some way to be " interpreted" to the Chief Justice. > Dickens, 2G8. CAETEE. 333 He does not, indeed, mention any action of the fingers, such as is now used by deaf mutes in expressing their thoughts or wishes. Yet it would appear plain that an interpreter pres- ent — one of her sisters probably — understood by the act of her hands that which even so intelligent a person as Chief Justice Bridgman, — one of the very first men of that or of any day, — of himself, did not understand. In itself, there- fore, the action of the hands, whatever it was, conveyed no meaning ; or, in other words, the woman and the interpreter conferred only by conventional signs. If this is a fair in- ference, there was some sort of alphabet between the girl and her sisters, or whoever else was the " interpreter ; " and we have evidence of a very considerably advanced state of education, at least as to the particular young lady. Miss Martha Elyot aforesaid. " Spreading out" the hands, it will be noted, is just the action of deaf mutes in this day, fol- lowed only by action of the fingers ; and nearly all Carter's reports of cases being deficient in fulness of particulars, we are fairly left to assume that which the mind naturallj' sug- gests as probable, from such facts and expressions as he does give us. The case of Hill, — where Judge Warburton actuallj"- took the fine of a man horn deaf and dumb, • — I have observed, was not later than 1659, and perhaps very much earlier. At all events, it was years before the time of the success of Pereira in 1743. The case before Lord Hardwicke is more strong. We are told that the young woman gave " sensible answers in writing." This would indicate a high degree of education, and one, I presume, greatly beyond which the latest efforts of the art do not go. There is a possibility, indeed, that the girl was educated abroad ; but as she had land, she was doubtless not an alien ; and there is nothing in the report which would suggest the idea that she was ever out of England. Her name, which from the title of the case seems to have been Dickinson, was British, purely. Some copies of Carter are illustrated with an exquisite 334 THE COMMOK-LAW EEPOETERS. print of Bridgman, by Faithorne, the same which is found in Dugdale's Origines, and which, on account of the agreeable- ness and dignity of the face, and the goodness of the en- graving, is one of the best, I think, of these old illustrative portraits. A brilliant impression of this print is really worth having, and even worth taking some pains to have. Carter was the author of the Lex Custumaria, and some other worthless books, now seldom heard of. (Edns.: Fol. 1688.) VAUGHAN. C. P. 17 Car. II.— 26 Car. II. (1665-1674). lyiKE most of the Reports about this epoch, Vaughan's come to us cToutre-tomhe. The cases are said to be of very unequal merit ; some, which are supposed to have been written out by the Chief Justice himself, being " good and methodical discourses," and giving " a true picture of his mind ; " others, " taken from loose notes, which he intended to have perfected, if he had lived," and being quite inaccu- rate. So, at least, says the Chief Justice Treby,^ whose authority, great on any point, would, in connection with language of Lord Hardwicke, in another place,^ be conclusive on this, were it not for an expression of significancy with which Mr. Hargrave transfers to his copy of Vaughan, from which I derive it, the censure left on record by the eminent Chief Justice. " Lord Chief Justice Treby," is the language, perhaps only casual, of the learned bibliographer, " thus ex- presses himself, in consequence of having to answer an objection from the case of Sheppard v. Gosnold." ^ I may add that 1 12 American Jurist, 61, quot- C. B. 1699, of which Mr. Hargrare ing C. J. Treby, as reported in the had a very full note, great case of Courtney v. Bower, ^ 2 Vesey, 281. ^ Vaughan, 159. VATJGHAN. 335 there is nothing in the preface to Vaughan which indicates in what light the reporter himself regarded his MSS. His son, by whom they were published, states that he deferred publishing them for some time, " having no particular direc- tion from the author to that purpose." Sir John Vaughan was born September 14th, 1603, at Trowscoed, in the county of Cardigan, the ancient seat of his family. He received an uncommonly regular and liberal education at Christ Church, Oxford, not only from tutors, but more particularly from the care of an uncle, then a fellow of All Soul's, Oxford,^ who, being a person of good learning and prudence, " omitted nothing," we are told, " that might cherish the hopes he entertained of his nephew, and improve him in all kinds of learning with which the University doth season youth." Such care has promise of its rewards, and, in 1621 Vaughan was admitted with honor to the Inner Temple. After being called in due time to the bar, he prac- tised chiefly in the Star Chamber, where he became eminent. He was sent M.P. for Cardigan in the Parliament of 1640, whence he had the honor to be excluded in the following year, for being a Cavalier, and siding, "as the law taught him," with his king. Throughout the Rebellion, indeed, he is said " to have thought more of what befitted a very lofty honor than of what may have been necessary for the times," and, like Bridgman and Lane, recalls to us, by his unyielding resistance to the demands of faction, the noble character of Cato, of whom Cicero tells us that, with the purest inten- tions, and consummate integrity, he sometimes injured the public interests by his unswerving adherence to abstract principle, and by giving his opinions more as if he were living in the republic of Plato, than among the rabble of Rome.^ 1 Preface to Vaughan. fide, nocet interdum Reipublicse. 2 " Nam Catonem nostrara non Dicit enim tanquam in Platonis tu amas plus quam ego. Sed tamen iroKiTeta, non tanquam in Romuli ille, Optimo animo utens, et summa fsece sententiam." (Epistolse ad At- 336 THE COMMON-LAW KEPOETEES, Still we must ever honor them ! Vaughan retired entirely from practice, declaring it unlawful to recognize any ju- dicial authority not derived from " a lawful prince." He thus lived, for twenty years, a sequestered life upon his estates, pursuing his professional studies, and maintaining, so far as the tumults of the times would allow, that ancient, native, genuine character — which Mr. Burke thought fit to be honored in an epitaph — of "a country gentleman." With the Restoration, he was again sent, in 1661, to Parliament, for his native shire, when his honesty ticum, Lib. 11. Epist. I.) This sen- timent is expressed with perhaps a dangerous eloquence, in another of the great orator's productions: "Neque enim inconstantis puto sententiam tanquam aliquod navi- gium atque cursum ex KeipublicsB tempestate moderai i. Ego vero hsec didici, hsec vidi, heec scripta legi: hsec de sapientissimis et clarissimis viris, et in hac republica et in aliis civitatibus monumenta nobis literse prodiderunt: non semper easdem sententias ab iisdem, sed quasoun- que Keipublicse status, inclinatio temporum, ratio concordise postula- ret, esse defendendas. Quod ego et faoio, Laterensis, et semper faciam; libertatemque quam in me requiris, quam ego neque demisi unquam neque demittam non in pertinacia sed in quadam moderatione positam putabo." (Oratio pro Cn. Plancio, xxxix.) As illustrated in the character of the great statesman of America, our own Webster, and as, perhaps, it may have been by the Roman states- man, this sentiment is that of the highest honor and wisdom, but is a dangerous one for political integ- rity less than Webster's to apply. " With elements of reason, definite, absolute, and emphatic, with prin- ciples settled, strenuous, deep, and unchangeable as his being, the wis- dom of Webster," said one well able to comprehend it, " is yet exqui- sitely practical. With subtlest sa^ gacity it apprehends every change in the circumstances in which it is to act, and can accommodate its action without loss of vigor or alteration of its general purpose. Its theories always ' lean and hearken ' to the actual. By a sympathy of the mind almost transcendent in its delicacy, its speculations are attracted into a parallelism with the logic of life and nature. . . . This practicalness and readiness are instinctive, not volun- tary and designed. They are united with the most decided preference for certain opinions, and the most ear- nest averseness for others. Kothing could be less like the system of wait- ing for events. Webster has never, in view of a change which he saw to be inevitable, held himself in re- serve and uncommitted." (H. B. Wallace, Character of Webster, Literary Criticisms.) VAUGHAN. 337 was better rewarded than honesty commonly was by Charles II. He was made, May 20th, 1668, Chief Justice of the Common Pleas, an office which he held for the residue of his life. It extended, unfortunately, but to the 10th De- cember, 1674. The author of the preface to the 1st volume of the Reports in Chancery^ speaks of the opinion of the late Lord Chief Justice Vaughan, delivered by him with his wonted assurance in the argument of the great case of Fry v. Porter. In con- nection with the style in which Vaughan speaks in his own Reports^ of a case, " as an illegal resolution grounded upon^ reasons not fit for a declamation, much less for a decision of law," it may suggest that the Chief Justice was somewhat lofty in his manner of delivering his opinions. As some offset to the nobility of the Bedfords, immortal- ized by Burke, and that of the Graftons, made not less mem- orable by Thurlow, it is refreshing to observe that the British Peerage has in its ranks the representatives of honest men, as well as of mistresses and of minions, of Villiers, and of Russell. The present Earl of Lisburne brings his descent immediately from Sir John Vaughan, the Chief Justice, our reporter. (Edns. : 1st, fol. 1677, by his son ; 2d, in 1706, with a fine print, by White, but unfortunately, in most cases, found upon paper a good deal stained. It is observed in 3 Modern, 77 (citing Carter, 89), that although the sole printing of law-books was granted after the Restoration to one Atkyns, "yet the Reports of Jones, Justice, and of my Lord Chief Justice Vaughan, were printed without the direction of the patentees.") 1 Edition of 1693, 8vo. * Page 101. 22 338 THE COMMON-LAW KEPOETEES. SAUNDERS. K. B. 18 Cak. IL— 25 Car. II. (1666-1673). " The most valuable and accurate Reports of their age ; " and this is the character which has been repeatedly given of them in modern times.^ To the same effect speaks Mr. Jus- tice Yates.^ Another Judge styles it " that excellent book." ^ And Chief Justice Willes, having quoted Saunders, thought it unnecessary to " mention any other authority after him." * But the highest tribute which this book and the science of pleading, as taught by it, has received, or can receive, has come to it from America. Daniel Webster, it is said, once translated the Reports of Saunders into English.^ The book which trained Webster's mind to its " prodigious powers of legal logic," or in which hh intellect found a dialectic har- mony, may well receive the homage of the world. Saunders gives us the records at length, and states in a concise and clear manner the objections and arguments of counsel and opinions of the Judges. As the reporter himself was well versed in special pleading, and was counsel in most of the cases he reports, the points discussed are given with 1 1 Kent's Commentaries, 485 ; marked: 'I sat down and made a and see London Law Magazine and translation of them into English, Review, voL ix. p. 338. and I have it yet, and it was in that 2 3 Burrow, 1730. way that I made myself familiarly * Lord Eldon, 2 Bosanquet & and accurately acquainted with the Puller, 23. language of pleading.' " (Remarks ^ AVilles, 479. of Reuben A. Chapman, Esquire, ' " It was a year or two since, before the Court of Common Pleas, that he spoke of having found the of Hampden County, Mass., October Reports of Saunders when he was a 25, 1852, on the occasion of Mr. student, accessible only in their orig- Webster's death, quoted in the New inal Latin, and without the notes York Daily Times of October 27, with which Sergeant Williams has 1852, from the Springfield Repub- since enriched them; and he re- lican.) SAXJNDEKS. 339 clearness, and with that truth to which a special pleader — whose habits sharpen the mind to a quick perception of legal distinction, and discipline it in a close adherence to logic — naturally and readily attains. The work has, since Webster copied it, been brought into special prominence by the notes of Serjeant Williams. They were written, the editor declares, as well with a view of in- citing the student to a diligent perusal of the pleadings, and giving him a knowledge not only of the excellence or defects of those before him, but of the grounds and reasons upon which the rules of special pleading and practice, were founded, and the variations which modern times had adopted from older forms ; as of affording to the more experienced a useful book upon the circuits, where many cannot be referred to. With these intentions, Williams digested into them the doc- trines and authorities relating to most kinds of practice and special pleading, and many of their general laws. Indeed, several of the notes are complete, though concise, treatises upon their respective subjects. They possess the highest authority, and more than "place the annotator on a level with the author." Tipdal, C. J., somewhere speaks of them as being " now esteemed a text-book of our law." "A sounder lawyer or more accurate special pleader," says Baron Vaughan, in speaking of Williams, " has rarely done honor to his pro- fession." ^ A note of his brother Williams had stated the law so " very accurately," that Lord Alvanley, C. J., " could not lay it down in better terms." ^ The " great ability " with which a note of the same Serjeant had collected "all the cases " on a difficult point, prevented Lord Kenyon from going through them again, or doing more than "refer generally " to -his labors.3 The judgment of the King's Bench in 1802, with Ellenborough, Grose, Lawrence, and Le Blanc, was thought 1 1 Crompton & Jervis, 9. ' 1 East, 428; and see Id. 95 2 3 Bosanquet & Puller, 178. note. 340 THE COMMON-LAW REPOKTEES. by Justice Lawrence ^ to derive support from a note of Wil- liams, collecting cases to the point with " great learning and ability." This praise of modest excellence has not been confined to men of one country or one style of thought. Mr. William Rawle, the elder, of Philadelphia, a lawyer of the Federal School of Washington,^ declared, in 1806, that " a body of notes so luminous, correct, and comprehensive had not, per- haps, appeared since Chief Justice Coke's Commentary on Littleton." Mr. Thomas Cooper, of Northumberland, a Jacobin exile from England to Pennsylvania, knew ^ " no reporter so well edited, or any law-book that has called forth more de- cided approbation from the persons best qualified to judge of its merits : " while the prince of Tory Lords, the paucilo- quently praising Eldon, who, as Attorney-General, had threat- ened Cooper with indictment,* went so far as to cite Mr. Williams's notes in the House of Peers, and to add : " Though one who had held no judicial situation could not regularly be mentioned as an authority, yet he might say, that to any one in a judicial situation it would be sufficiently flattering to have it said of him, that he was as good a common lawyer as Mr. Serjeant Williams ; for no man ever lived to whom the character of a great common lawyer more properly appUed." ^ Notwithstanding these reiterated eulogies, the reader who often consults these notes will probably think with Chancel- lor Kent, that, with all the praise justly due to the edition, it is liable to the objection of making one of the old reporters the vehicle of voluminous dissertation ; and that it had been better if Serjeant Williams had given his labors to the profes- 1 3 East, 5. ' Letter of March 20th, 1806, to * Letter of January 14th, 1806, Mr. P. Byrne, publisher. lb. to Mr. P. Byrne, publisher, Adver- * Encyclopaedia Americana, vol. tisement Sheet, in the end of East's xiv. tit. " Cooper, Thomas, M.D. & Pleas of the Crown, vol. ii., Phila- LL.D." delphia, 1806. ^ 3 Dqw, 15. SATJNDEKS. 341 sion in a separate and more systematized form.^ In regard to the cases of the original reporters, it may be observed that they too are rendered less interesting by so numerous diver- sions ; and although particular passages may be cleared by the notes, that the mind becomes " refrigerated " by these fre- quent interruptions, and the thoughts injuriously withdrawn from the principal subject before them. The reports of Saunders are often quite entertaining, from their frankness and simplicity. Veale v. Warner ^ is within this class. It was debt on a bond, conditioned for the per- formance of an award. On oyer of the condition the defend- ant pleaded that the arbitrators had made an award that the defendant should pay the plaintiff ,£3,169 16s. Sd., and give a general release to the plaintiff; but he did not show anj^thing to be done by the plainlifip, though in truth thej' had awarded that he should give a general release to the defendant. Saun- ders, for the defendant, objected that the plaintiff could not have judgment, because it appeared by the record that the award was void, being all to be performed by the defendant and nothing hy the plaintiff ; and that being thus a void award, it was not material whether the defendant had performed it or not. The report goes on : " And of such opinion was the whole court, clearly. But they would not give judgment for the defendant, because they conceived it was a trick in plead- ing ; but they gave the plaintiff leave to discontinue on pay- ment of costs. And Kelynge, Chief Justice, reprehended Saunders for pleading so subtlely on purpose to trick the plaintiff by omission of the other part of the award." The old reporter, however, takes care of his reputation, and adds in his justification : " But it was a case of the greatest hardship on the defendant ; for the bond of submission was only in the penalty of £2,000, and the arbitrators had awarded him to pay £3,100, when in truth there was nothing at all ^ 1 Commentai-ies, 486. Such a work we now have in the beautiful Treatise of Serjeant Stephen. ^ 1 Saunders, 327. 342 THE COMMON-LAW KEPOETEES. due to the plaintiff, but he was indebted to the defendant." And he adds, that " afterwards the defendant exhibited an English bill in the Exchequer, disclosing bad practice of the plaintiff with the arbitrators, and had relief against the bond: " and so," he concludes, " this matter was at rest." The truth of the matter probably was, that except by his " plead- ing so subtlely," Saunders had no other way of immediately avoiding the action on the bond ; since it would seem, as well by his not pleading as by more direct authorities, that in an action on an award a defendant cannot plead collusion of the arbitrators in avoidance of it. He notes, with the interest of a party who would let nothing escape him, that Winnington and Sympson were of counsel with the plaintiff, but that " they did not see the defect of the pleading of their part until it was objected in court by the other side." In Birk v. Tippetts^ he notes that " Twisden, Justice, in- terrupted Saunders, and said to him, ' "What makes you labor so ? Xhe court is of your opinion, and the matter clear.' " In Hayman v. Gerrard^ he records as a remarkable circumstance that the court said that the replication in the case was weU conducted and as it ought to be ; whereas, in his (Saunders') view, it was " bad," — a view which subsequent courts have apparently adopted in preference to that of the court.^ (Edns. : These Reports were first published with the records in Latin and the arguments in French, folio, 2 vols. 1686 ; a second and superior edition in 1722, English, 8vo. Ser- jeant Williams's edition appeared first in 1799, and has been more than once republished, both in England and the United States. In 1829 it was itself edited by his son Mr. Edward Vaughan Williams and Mr. Patteson, afterwards one of the Justices B. R., and in 1845 by the son alone. In this edition the son added a good deal in bulk to the paternal labors, his object having been to make the notes keep pace with the 1 1 Saunders, 33 b. =1 Saunders, 103. » Meredith v. Alleyn, Carthew, 116. SAUNDERS. — SECOND OR T. JONES. 343 movements of reform wMch have marked the legislature and courts since the accession of William IV. So considerable, indeed, with the progress of reform had these become, that in 1871 Mr. Williams, now Sir Edward Vaughan Williams, him- self justly spoken of by Keating, J., as " a very great author- ity," ^ gave the whole work a new shape, omitting as useless for precedents at the present day the pleadings given at large in Saunders, and substituting, for the reporter's original cases, abridged forms of them, to which the notes of Serjeant Wil- liams would still be applicable. The notes of Sir E. V. Wil- liams bring the new matter down to 1871. The new edition is in 2 vols. 8vo.) SECOND OR SIR THOMAS JONES. K. B., C. P. 19 Car. II.— 1 .Tac. II. (1667-1685). This book, which is in French, is usually cited as 2d Jones, and occasionally, in the old books, as " Ch. Justice Jones," to distinguish it from William Jones's Reports, some- times cited as 1st Jones. It is a work, I believe, of very reputable authority.^ I have seen, in the British Museum, a MS. translation of it, by Mr. Hargrave, quite elaborate (pp. 524), with syllabuses, references, &c. By a note of Mr. Har- grave, on one of the fly-leaves, it appeared that Mr. CuUen contemplated a new edition of the reporter, and that this MS. had been lent to him in furtherance of his design, — a design, however, which was never accomplished. Of the author's personal history I have but few records. These, however, are interesting. He was made a Judge of the King's Bench in the 28th of Charles 11.,^ but was removed by James II. in 1687, in consequence of his opinion against 1 La'v^.Reports, 9 Common Pleas, 95. 2 8 Leigh, 562. ' 1 Ventris, 295. 344 THE COMMON-LAW EEPOETEES. the King's dispensing power.^ Though he had always been a strong maintainer of the royal rights, he opposed, with noble fidelity to the law, this illegal pretension of the Crown. We have the record of a conversation between him and James II., in the royal closet, which will remain to his enduring honor. The King told him that he must give up either his opinion or his place. " For my place," answered Jones, " I care but lit- tle. I am old and worn out in the service of the Crown, but I am mortified to find that your Majesty thinks me capable of giving a judgment which none but an ignorant or a dishonest man could give." " I am determined," replied the King, " to have twelve Judges who shall all be of my mind." " Your Majesty," answered Sir Thomas, " may have twelve Judges of your mind, but hardly twelve lawyers." ^ The following little scene occurs in the Proceedings in Parliament, A. D. 1689, upon the case of Jay v. Topham.^ Jay, it appears, had brought a suit in the King's Bench against Topham, Sergeant of the House of Commons, for certain acts done by order of the House. Topham pleaded the privilege of Parliament, which, on demurrer, the court overruled. Sir Francis Pem- berton, who was Chief Justice, and Jones, one of the puisnds, were accordingly cited before the House. (Sir Thomas Jones brought in.) Mr. Speaker. " Sir Thomas Jones, the occasion the House has sent for you is this : they have been acquainted, that in the time of King Charles II., in the 34th 3-ear of his reign, there was an action brought by one Jay, against Mr. Topham, that then was, and now is, Sergeant of the House of Commons ; to which he pleaded, that what he did was by order of the House, and this he 1 The first day of this Term " Macaulay's History of England, (Easter, 2d James H.), Sir Thomas chapter viii. Jones, Chief Justice of the. Common » 12 Howell's State Trials, 822. Pleas, had his quietus. (3 Modern, See Stockdale v. Hansard, 9 Adol- 99.) phus & Ellis, 133; S. C. 2 Periy & Davison, 126. SECOND OE T. JONES. — VENTRIS. 345 pleaded to the jurisdiction of the Court of King's Bench, at that time. They desire to Icnow if you gave the judgment, and upon what reason ? " Sir Thomas Jonks. " 'Tis so long ago, I do not remember it ; it is above seven j'ears ago ; and I had not notice at all of the cause I was commanded to attend j-ou upon. Whether I did give anj* such judgment, or no, it will appear bj' the record itself." Mr. Speaker. " We have examined the officers, and they give us an account that Sir Francis Pemberton was Chief Justice, and you another Judge then." Sir Thomas Jones. " I was a Judge of the court at that time, but I cannot certainly say we did give judgment to overrule the plea. I hope, if we did, it was according to law." Mr. Speaker. " Well, sir, you may withdraw if you please." (Sir Thomas Jones withdraws.) The case goes on, however, finally to inform us the House decided that the court had broken the privilege of the House, and that the Chief Justice and Jones vs^ere accordingly " taken into custody, and lay there till there came a prorogation." (Edns. : Fol. Fr. 1695 ; 2d, fol. Fr. and Eng. 1729.) VENTRIS, PAKT I. K. B. 20 Car. II.— 36 Car. II. (1668-1684). VENTRIS, PART II. C. P., CH. 21 Car. II.— 3 Wm. III. (1669-1691). " Ventbis," says Mr. Heterick, is " often quoted, and gen- erally considered a book of fair authority. I have found but few of the cases censured. In 2 Atkyns, 796, the report of one of them is said by Lord Hard wi eke to be ' very imper- fect.' In 1 Burrow, 244, Mr. Justice Denison says that 346 THE COMMON-LAW BEPOETEES. another is a mistake, and adds, ' The reporter was then a young man.' ' The mistake,' however, I take it," continues Mr. Heterick, " is in giving the state of the case, three words being somehow left out, not in his report of the judgment." In 4 Neville & Manning, 807 (30 Eng. Com. Law Rep. 419), Lord Denman doubts one of his cases. The reporter died between Hilary Term 2 & 3 William & Mary and the Easter Term following.^ At the end of 2d Ventris are about fifty cases in Chancery, generally short notes. They are not often cited, though they appear to have been edited with some care in 1726. (Edns. : Fol. 1696 ; 2d, 1701 ; 3d, with references, by Ser- jeant Richardson, 1716 ; and 4th, with additional references, in 1726.) POLLEXFEN. K. B., G. P., EX., AND OH. 21 Car. II. — 1 Jac. II. (1669-1685), with some Cases anterior to 21 Car. II. PoLLBXFEN was a lawyer of extensive practice, and seems to have been engaged in most of the important cases in the latter part of the reign of Charles II., and in that of James II. He was one of the counsel of the Seven Bishops, and inveighed manfully against the King's dispensing power. In 1688 he was elected to Parliament for Exeter, and on the success of the Whigs, in that year, appointed Attorney-General ; an office from which he was soon after promoted to the Chief Justiceship of the Common Pleas. The impressions of these Reports are very incorrect ; and chasms are found in the pages, viz. from 173 to 176 ; 181 to 184 ; 649 and 652 are mis- paged, and 189 is repeated. The circumstance is less impor- tant than it would be, did the reporter always record the judgments of the court, as well as his own arguments. 1 Carthew, 178. POLLEXFEN, — MODEKN. 347 The learned author Vhom we so often quote calls the book " a respectable authority ; " though he remarks, that " a con- siderable part of the discussions and decisions which it records ceases to excite much attention, or to be very applicable to the new and varied course of human affairs." ^ (Edns. : Fol. 1702 ; the year is sometimes printed in Arabic, and sometimes in Roman numerals ; and it is not always the same.) BLACKERBY. I MAY as well insert here as anywhere else the name which I here give. It is entitled " Cases in Law ; Wherein Justices of the Peace have Jurisdiction," &c. It is printed as the Second Part of the Justice of the Peace's Compan- ion. It is sometimes cited as if it were a regular volume of Reports, on which account I put it in this volume. It is, however, only an alphabetical digest of cases already in print, though it includes many from early times.^ (Edns. : 1st, 24mo, London, 1717 ; 2d, 12mo, London, 1729.) MODERN. K. B., C. P., EX., AND CH. 21 Car. II.— 4 Geo. II. (1669-1732). Any reference made within the last fifty years to Modern Reports is probably meant to be made to the book technically 1 1 Kent, Coinnientaries, 487. Leach's, it is referred to, p. 178, 2 "Blackerby's Cases, 217," is and I believe in other places. "2 referred to in The Queen v. Foxby (6 Blackerby'.s Justice, ' ' and "2 Leach's Modern, 11, in the margin) Black." are referred to also by Mr. as reporting S.C; also, Id. 212, The Viner. See his Abridgment, vol. Queen v. Middlemore; and in Pick- xix. p. 358, pi. 4, in the margin ; Id. ering's edition, though not in p. 366, pi. 6, also in the margin. 348 THE COMMON-LAW EEPOETERS. cited as Leach's Modern, a work in twelve uniform 8vo volumes, labelled Modern Reports, which was published in London in 1793-96 ; or to a work of similar size and division, published at Dublin in 1794, — concerning both of which more is said hereafter. And as Modern Reports — which might be con- jectured from a name so susceptible of contraction or en- largement — has somewhat of a history, I proceed at once to rescue it, so far as I can, from the oblivion to which its want of general interest has naturally, and as some might think not unworthily, consigned it. Modern Reports, as originally known, were confined to four folio volumes or parts, as volumes in old times appear to have been usually called, answering, in essential divisions and contents, to the first four of Leach's and the Dublin Modern ; the 4th volume bearing on its title the limitary designation of the Fourth and Last Part. Of these four parts the first appeared in 1682 ; the second, in 1698 ; the third, in 1700 ; the fourth, in 1703. In 1711, under the auspices of the well-known W. N.,^ came forth another " last " volume, a folio, fifth Modern ; in a note to the preface of which it was stated that the former volume, entitled the " Last," had been so styled by mistake. Here, how- ever. Modern Reports, as formerly known, finally deter- mined. In 1713 appeared, in folio again, a volume entitled Modern Cases (not Reports), being essentially the volume now making 6th Modern Reports. In 1716, another, very thin volume. Modern Cases, by Thomas Farresley, which is now reproduced (by Mr, Leach, with great additions) in 7th Modern Reports. In 1730, another book, containing two dis- tinct parts, in fact, though always bound in one volume, Mod- ern Cases in Law and Equity, which were separated into distinct volumes b}' Leach and the Dublin publishers, and make accordingly in their 8vo form (in Leach's, with addi- tions to the 9th) 8th and 9th Modern Reports. Here ceased 1 William Nelson, of whom see infra. MODEEK. 349 everything bearing, as an original title, the designation of Modern. In 1736 was published The Cases temp. Maccles- field, now reappearing as the 10th of Modern Reports ; in 1737, Reports temp. Queen Anne, now made 11th Modern (by Mr. Leach, in a form hereinafter stated) ; and finally, in 1738, Cases in the King's Bench, ,temp. King William III., now closing Modern Reports, as its 12 th and concluding volume. Thus the reader will perceive that, as originally published, there were no more than five volumes of Modern Reports ; and " this," says Mr. Green, " led to a mode of citation formerly very different from that now customary. Comyns, in his Digest, cites 1st, 2d, 3d, 4th, 5th, Mod., but 6th Mod. he cites as Mod. Cases ; 8th Mod., as 2d Mod. Cases, and 9th Mod. he cites as Eq. Cases ; while I do not remember that he ever cites 7th, 10th, 11th, or 12th Mod. at all. Other writers about the same time cite 6th Modern by the name of Mod. Cases ; 7th Modern, by the name of FarreSley ; 10th Modern, by the name of Lucas or Macclesfield; 11th Modern, by the name of Reports temp. Queen Anne ; and 12th Modern, by the name of Cases in B. R., with the addition sometimes of temp. Wm. III." ' Let us now trace, so far as we can, the history of the exten- sion of old Modern, and state also the editions of it as a series ; of the separate volumes, whether singly published or as parts of any old series. I have stated the editions further on, in noticing the volumes singly. I. As to the Extension. — AU the twelve volumes in folio already mentioned having appeared consecutively, having had, I presume, a good deal of resemblance in the respect of size, type, binding, and mechanical exterior, and being, moreover, all truly included within the designation of Modern Re- ports, as loosely used, carried within their original appearance the germ of that nomenclatural development which has since been unfolded. Accordingly, as early as 1724 I find Modern 350 THE COMMON-LAW BEPOKTEES. Reports advertised ^ as in six volumes, coming down to the 3d year of Queen Anne, with complete tables to the whole. Whether or not the profession did not like this extension of name I do not discover ; but in a subsequent advertisement, of 1782,2 the books appear again, but in the old and reduced dimension, being announced as in five volumes, and as coming down but to the 12th of King William III. This, however, would appear to have been an unsuccessful attempt to control the vulgar by the technical citation ; for in 1741 ^ they are again advertised as in six volumes, and as coming down to the former stopping-place of 3d of Queen Anne. In 1757 the name was extended to seven volumes, by Danby Pickering, Esq., who republished in a series the five volumes of old Modern, the Modern Cases, and Farresley. Soon after this, — perhaps before,* — the whole of the twelve volumes had come to be occasionally cited in common parlance as Modern ; but this did not take an acknowledged form till 1794. In that year the whole twelve volumes were reprinted at Dublin, in an octavo size, for the first time, with a uniform title to each volume, in the following words : " Modern Reports, or Select Cases, adjudged in the Courts of King's Bench, Chancery, Common Pleas, and Exchequer, since the Restoration of his Majesty King Charles II., to the end of the reign of King Wil- liam III. In twelve volumes. The fifth edition." With that felicity for which Ireland is immortal, this edition, under the title which brings it no lower than WiUiam III., is made to contain the " Cases temp. Queen Anne," — a blun- der which, if not accounted for by the nature of Bulls, may 1 Catalogue at the end of Hobart's Modern, after which " Lucas " fol- Keports, 5th edition, 1724. lows; the word being put there ap- ' Catalogue at the end of Shaw's parently by Sir James Burrow, as if Justice, 2d edition, 1732. the work were better known to ' Catalogue at the end of Lilly's some readers by that name. How- Conveyancer, dated Nov. 9, 1741. ever, Lord Mansfield refers to it on * Sir Fletcher Norton, arguing the next page as " 10 Mod." in 1756 (1 Burrow, 152), cites 10 MODERN IN A SEEIES. 351 be discovered from the mode in which the volumes of old Modern happened first to be published. The last volume of the series, which comes but to the end of the reign of William, appeared originally (1738) after all the rest, including those of the time of Queen Anne ; and the Irish printers, naturally supposing that no cases which it contained were later than they possibly could be, looked but to the last of the series for the latest of its cases. Finally, between 1793 and 1796, at London, came forth Leach's Modern, in twelve volumes, 8vo, which, with the ex- ception of the 11th volume, is now the standard edition of the Modern Reports. With the Dublin edition it is also called the Mfth?- The character of this publication is treated more at large below, in speaking of II. Editions of Modern, in a series. — The various volumes of Modern appeared originally at different times, as stated in noticing them singly, and appear to have been reprinted as the market called for them. The first time I find anything like a uniform edition of them is in the catalogue of 1741, already quoted, where Modern Reports, in six volumes, are ad- vertised as being the 4th edition. I take it, that this fact of the edition cannot be correctly stated. Of several of the volumes, three editions had undoubtedly been printed prior to this time, at irregular intervals ; and this so-called fourth edition con- sisted, I assume, of nothing more than a new and uniform titlepage, prefixed to the first six volumes in place of their former and individual title. The designation of a Fourth Edition was probably adopted, because, if any uniform edi- tion was to be affirmed for the whole six volumes, it was just as true to say that the edition was the fourth, as to say that it was the first, second, or third. The various volumes, * Prior to the Union, the English of it may be seen in the present iu- and Irish booksellers do not appear stance, and also iu the publication to have paid much courtesy to each of Comyns's Reports, other. An illustration of the want 352 THE COMMON-LAW BEPOKTEBS. owing to the irregular way in which they had appeared originally, could not be reduced to any common editional term.^ However this may be, in 1757, sixteen years after this so- called fourth edition, there was published an edition undoubt- edly new, and again styled but the fourth. It is the edition of which I have already spoken as by Danby Pickering ; re- vised and corrected, it is said, " with many thousands of new," and, it may be added, for the most part very impertinent, " references." In 1769 appeared a fresh edition of the books now em- braced by 8th, 9th, 10th, and 12th Modern ; the second of each, unless, perhaps, it was the third of vol. 10th. In 1794 came out at Dublin, in a small 8vo form, what next appeared, and is called the '5th edition. I have already mentioned it, in tracing the extension of Modern, as being the first form in which the title of Modern Reports was given in a regular and systematic way to the whole twelve volumes now so known ; and in which all names of authors, and all distinctions between 'the volumes, except as parts of a series, were merged and lost. There is no general preface or adver- tisement to the edition, but I gather that it is printed from the folios of 1757, 1769, and 1781, with the addition of new references (printed from those casually made, I presume, by gentlemen of the bar who were in the practice of making MS. entries in their copies), and no other differences whatever. The references seem to come down to 3d Term. Between the years 1793 and 1796, appeared at London, Leach's Mod- ern, in twelve volumes 8vo. This is now the standard edition of these Reports, and had the advantage, which I presume this Irish one wanted, of a professional editor. Mr. Leach 1 " Four years after the fourth ' lately printed ' as the third edi- edition is advertised," says Mr. tion." (See Catalogue at the end of Heterick, "I find the books adver- Lilly's Practical Register, London, tised in five volumes among books 1745.) MODERN IN A SERIES. 353 was a reputable English barrister, the editor of Shower and Croke. To the Modern Reports, however, his services were much more considerable than to either of the reporters last named. He corrected the abstracts ; so defective, in some cases, as to require entirely new ones. He gave at the com- mencement of each term the names of the Judges, Solicitors, and Attorneys-General ; modernized the references, chang- ing 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, and 12th Modern. He added many notes and references to the same cases elsewhere. To the 7th, 9th, and 11th volumes he made large supple- mentary 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, which were continuously narrated in one case through all their history. To the first seven volumes and to the 11th he added new Indexes, and in the other volumes corrected the old ones. The volumes of Leach's Modern, as those of the Dublin edition, answer in division to the volumes of the folio series ; though, as I have already said, and as it will be seen in the remarks upon the separate volumes fur- ther on, great additions have been made in Leach's Modern to the best editions of certain volumes of the old series. It is -to be regretted that Mr. Leach's 11th Modern (Reports temp. Queen Anne), with great additions and improvements in some respects, is much inferior in others, which I have stated below, to the folio of 1781, reprinted in the Dublin 8vo of 1794. Chief Baron Pollock, in our own time, when 10th Modem was cited before him,^ observed to counsel : " You may find authority in the Modern Reports for many propositions that 1 14 Meeson & AVelsby, 122. 23 354 THE COMMON-LAW KEPOETBHS. are not law ; " an observation undoubtedly true of all the editions of Modern, as it would be of any series of Reports running over such a long term of time, and with reporters who published in most cases anonymously. Other persons speak of " Modern Reports " as of a series essentially uni- form. Blackburn, J., in Regina v. AUen,^ says : " The Mod- ern Reports are a very loose compilation ; " and Best,^ " The book called The Modern Reports is not of very high authority." As will be seen further on, these remarks have different degrees of truth as applied to different volumes. The truth is, that there is a great variety of merit both in dif- ferent volumes of Modern as a series, and in cases in the same volumes of Modern. Certain cases are well taken ; others appear to be mere notes, sometimes scarce intelligible, and sometimes, though clear enough, not trustworthy. The syllabuses (especially in the older editions) are meagre, and do not find concord in the case as reported. I suppose that all this arose from many or most of the volumes being projects of the booksellers, who got or who published, as others got and brought to them, MS. "cases from the libraries of deceased lawyers, little inquiry being made as to the history or merits of the reports ; and those which were reasonably good, being, when insufficient by themselves to make a printed volume, eked out by other reports which could be the most easily got, and sometimes much the reverse of good. In giving, further on, notices, more extended than I have seen elsewhere, of the Modern Reports, I have frequently cited the name of the gentleman to whom the third edition of this book was inscribed, and the privilege of whose acquaintance I rate as among the agreeable incidents of its publication. Very few men in America — few men even in England — are so accurately acquainted with the bibliography of the Reports. In the interchange of a long correspondence, I have seldom 1 8 .Jurist, New Series, 231. ^ On Evidence, 745, 4th edition. MODERN IN A SERIES. 355 had occasion to receive his criticisms without finding them to be just. Of the value of those upon several volumes of Mod- ern, — differing in some respects from opinions commonly re- ceived, — my own knowledge of the works does not enable me to give a judgment. I shall be surprised, however, if, in cases where Mr. Green differs from the sentiments expressed by others, his will not be found well considered. An extract from a private letter, written in 1845, and not designed, of course, for the printer's use, will tell, in language whose un- affected interest I could not improve, that my correspondent is not within the class elsewhere complained of, " that talk of the truth, which have never sounded the depths from whence it springeth." ^ " My father," says Mr. Green, In transmitting some remarks upon Modern, "was a Judge of the Virginia Court of Appeals when I studied law. At that time the State had no library, though she has now two verj' good ones ; and he was obliged to keep most of his books at Richmond, the capital, for his own use there. His family, which was numerous (while his circumstances were not opu- lent), resided in Culpeper County, where I now live; and here I studied law for three years and a half ^ith such of his books as I could get. Among them are three odd volumes of Modern, the 1st, 2d, and 12th, and I read them through ; and the copies are now in the possession of Mr. Humphries, of Madison, with many of the margins filled, and almost all of them to some extent furnished with my annotations ; for from the beginning I studied with my pen always by me, and wrote mj notes in the margin of the printed books, instead of using a commonplace. And to this day I am in- dignant to hear 2d and 12th Modern abused or depreciated. I feel a gratitude to the unknown authors of them, and consider that my success in life, which has been considerable, is owing in a great measure to them. My library now contains full four thousand volumes ; more than half of them are law books, and most of them are the best editions that are extant ; but to this day I am fond of examining the better volumes of Modern. The 3d, 4th, 5th, and 7th Modern are but so so ; 8th and 11th Modern are execrable ; but ^ See supra, Preliminary Remarks, § 20. 356 THE COMMON-LAW KEPOETEES. 1st, 2d, 6th, 9th, 10th, and 12th Modern deserve a place in the better class of the old Reporters, especially 2d, 6th, and 12th."* (1.) Vol. I.— K. B., C. P., 21 Car. H.— 30 Car. TL. (1669-1678). Colquit's Reports. Containing aUo the case of Fry v. Porter, in Chancery. The authorship of this volume is not clearly discovered. Bridgman states that the author is said to be Anthony Col- quit, by whose name it is sometimes cited. Mr. Jared Sparks, quoting Thoresby's History of Leeds,^ attributes the author- ship to Joseph Washington, a collateral ancestor of the Gen- eral ; ^ while Mr. Nelson,^ the editor of 5th Modern, seems to 1 Alas! that I must add in this fourth edition, that since what I said of him in the third, this able, truly learned, and amiable man has departed this life. He died July 19, 1880. A just tribute to his worth is found in some remarks by William A. Maury, LL.D., formerly of the Bar of Richmond, Virginia, now of that of Washington, D. C, read before a meeting of the Bench and Bar of Virginia, held at Rich- mond, in November, 1880, and whose proceedings are reported in the Virginia Law Journal of Jan- nary, 1881. 2 Page 97. 8 Sparks's Life of General Wash- ington, Appendix, p. 542. "Joseph Washington, an eminent lawyer of Gray's Inn, Thoresby says, is to be remembered among the authors. He wrote the first volume of Modern Reports ; Observations upon the Ecclesiastical Jurisdiction of the Kings of England, published in 1689; Abridgment of the Statutes to 1687, published in 1689 ; a trans- lation of part of Lucian's Dialogues; and other works. He was buried in the Bencher's vault of the Inner Temple." I may add that Joseph Washington was the son of Robert Washington, for some time a mer- chant of Rotterdam. In England he occasionally resided at Car House, near Doncaster. He was a great friend of Lord Somers. Toland says that he was the translator of Mil- ton's Defensio pro Populo Angli- oano, in reply to Salmasius. (Life of Milton, p. 84.) The translator's name is not prefixed to the first edi- tion, but the publisher states, in an advertisement, that the person who took the pains to translate it, did it partly for his own private entertain- ment and partly to gratify one or two of his friends, without any de- sign of making it public. This edi- tion was printed in the year 1692. Joseph Washington died not long See infra, tit. " 5th Modern." 1st modern, ok oolquit. 357 claim for himself all the merit which the publication confers. Mr. Green speaks of the book as a performance by no means discreditable to the author. This volume gives us a report of Sir Robert Hyde's opinion in the case of Manby v. Scott, — a case which makes a figure in the curiosities of the Reports, and deserves some notice here. Here is this pretty well-known case : — Lady Scott, wife of Sir Edward Scott, left her husband against his will, and after a time made a demand of cohabitation with him again ; but he refused to receive her. During the time that she was absent from her husband, he prohibited several people from supply- ing her with goods or wares of any kind ; declaring to them that if they did so he would not paj' for them. Among the persons whom he thus specially prohibited from supplying his wife was the plaintiff, Manby, who nevertheless did sell to the said lady silks and velvet to the amount of £40, for which this suit was brought. The case, as well from the rank of the parties as because matrimonial quarrels are generally interesting to people of fashion, and for the additional reason, no doubt, that the wives of that day were really and in conscience desirous to know whether, like good daughters of Eve, they could enjoy themselves, volente, nolente marito, became an affair of great public interest. Lady Scott's " silks and velvet to the amount of £40," got finally into the Exchequer Chamber, before all the Judges of England ; and what between these twelve rev- erend persons on the one hand, and Lady Clacket, Mrs. Can- dor, Mrs. Sneerwell, and Sir Benjamin Backbite, and Mr. after; that is to say, on the 26th In 1st Institutes (Hargrave and February, 1693. Warton, however, Butler's edition, 134 a, notes 1 and speaks of this translation as being 2), the reader will find a reference made by Richard Washington, of to Mr. Washington's Observations the Middle Temple. I apprehend on Ecclesiastical Jurisdiction. Na- that this is a mistake. The trans- hum Tate, who with Brady trans- lation was probably by Joseph, lated the Psalter into verse, wrote whom we have named, the same that an elegy on him in 1694. Wash- is usually printed with Milton's ington edited one edition of Keil- prose works. wey. See supra, p. 121. 358 THE COMMON-LAW EEFOETEES. Snake, of the West end, on the other, the kingdom itself was almost rent in twain. The arcana, penetralia, and sacra pri- vata of the captivating Lady Scott's toilet-room were handled in the regular brutal way of English business, and the " silks and velvet of the said lady to the amount of ^640, for which this suit was brought," were set on in a manner which recalls nothing so much as the harpy-like style in which the nuns of the Sepolti Vivi unrobe some beautiful girl, their newly re- ceived sister, in the presence of a huge congregation ; pluck- ing and pulling the diamonds from her hair, slashing off, with huge shears, her beautiful locks, and flinging to the wind her gorgeous attire, at the moment when, entering on the better life, the world recedes and disappears, when heaven opens on her eyes, and her ears with sounds seraphic ring. This dis- tinction only existed against the English beauty, that poor Lady Scott, though disrobed of her worldly splendor, was on her way to no such cloistral haven. The suit occupied the great and humble alike. " This case," says one of the Judges, " is the meanest that ever received resolution in this place ; but as the same is now handled, it is of as great consequence to all the King^s people of this realm as any case can possibly he." We can readily conceive that among such a set of women as Sir Peter Lely has left us portraits of at Hampton Court, and Mrs. Aiken has described in her " Beauties of the Court of Charles II.," the resolution of the question whether they or their husbands should regulate their dressing-room, was a matter which agitated them far more deeply than whether England or France should hold the keys of Calais. In the case before us. Lady Scott's counsel appears to have considered that the wife is always an agent for the husband in matters of her own dress, — a department in which it was assumed that no gentleman could interfere, with either decency or spirit. The opinion of Mr. Justice Sir Robert Hyde, which was that of a majority of the court, is in 1st Modern, p. 124. 1st modern, ok colquit. 359 It gives us some curious information as to the fashions of the day, and shows us the parts of London — " Paternoster Row," &c. — in which a lady of ton made her purchases two hundred years ago, and before the Crescent, and Regent, and Bond Street, and St. James's had supplanted the old " city." Ladies in 1663, when the case was decided, " took up " laces at " the Exchange," and they resorted to Hyde Park, not to display their elegant equipages and driving costumes, and to receive and return graceful salutations, but '•'■to score at gleeh.'" Semps^ers were apparently as well known in the exquisite confection of a lady's dress, as sempsitresses are in ours ; and men-milliners — " perfumed," no doubt, in that day as in Shakspeare's — had not yet made an unconditional surrender in the matter of ladies' bonnetry to the fair fingers and more exalted sensibilities of the gentler sex. Brussels and MechUn lace, as we now call it, — but which at that time, in connection with the now departed nationality of the Low Countries, was denominated " Flanders lace," — appears in 1663 as in 1863, to have entirely carried the day against the English fabrics of Honneton. " Pointe handkerchiefs " — the " pointes d'Alen^on," and " pointes de Venise," no doubt — were as attractive to the beauties of Charles the Second's day as they have since been to the belles of Fifth Avenue ; and a high idea of their elegance is indirectly given by Mr. Justice Hyde in the price of £40 which he mentions as the cost of a "point handkerchief" alone. We can hardly wonder that the grave Justice, who, by the way, /or a grave Justice, appears to have been more than sufficiently well versed in the agree- able mysteries of a rakish lady's toilette, expresses as he does in one part of his opinion, the good old-fashioned orthodox wi^ of all his heart, that the " flesh-flies " of London should have some check put upon them, so as not to " suck up and devour by their illegal tricks," the estates of so many honest English husbands. After announcing, with some solemnity, that he means to 360 THE COMMON-LAW EEPORTEES. deliver his opinion plainly and freely, according as he con- ceives the law to be, " without favoring the one or courting the other sex" and that he means rather to answer two of his brethren " who have argued so copiously for the woman's right," than to argue the whole case de novo, the venerable champion of marital orthodoxy proceeds as follows : — " If the contract or bargain of the wife, made without the allow- ance of the husband, shall bind him upon pretence of necessary apparel, it will be in the povyer of the wife, who, by the law of God and of the land, is put under the power of the husband, and is bound to live in subjection unto him, to rule over her husband and to undo him maugre his head; and it shall not be in the power of the husband to prevent it. The wife shall be her own carver, and judge of the fitness of her apparel, of the time when it is necessary for her to have new clothes, and as often as she pleaseth, without asking the advice or allowance of her husband. And is such power suitable to the judgment of the Almighty, inflicted on woman for being first in the transgression, — ' Thy desire shall be to thy husband, and he shall rule over thee ? ' Will wives depend on the kindness and favors of their husbands, or be observant towards them, as they ought to be, if such a power be put in their hands ? "Admit that the wife wants necessary apparel, — woollen and linen, — and thereupon she goes into Pater Noster Eow, to a mer- cer, and takes up stuff, and makes a contract for necessary clothes ; thence goes into Cheapside, and takes up linen there in like man- ner ; and also goes into a third street, and fits herself with ribbons and other necessaries suitable to her occasions and her husband's degree. This done, she goes away, disposes of the commodities to furnish herself with money to go abroad to Hyde Park to score at gleek or the like. Next morning the good woman goes abroad unto some other part of London, makes her necessity and want of apparel known, and takes more wares upon trust, as she had done the day before. After the same manner she goes to a third and fourth place, and makes new contracts for fresh wares ; none of these tradesmen knowing or imagining she was formerly furnished by the other, and each of them seeing and believing her to have great need of the commodities sold her. Shall not the husband be chargeable and liable to pay every one of these, if the contract of the wife doth bind him? ... It is said by my brother Twisden, 'Although the 1st modeen, oe colquit. 361 wife depart from her husband, yet she continues his wife, and she ought not to starve.' If a woman be of so haughty a stomach that she will choose to starve rather than submit and be reconciled to her husband, let her take her own choice. . . . If a woman who can have no goods of her own to live on, will depart from her husband against his will, and will not submit herself to him, let her live on charity, or starve in the name of God! . . . It is objected that the jury is to judge what is fit for the wife's degree ; that they are trusted with the reasonableness of the price ; and are to examine the value, and also the necessity of the things or apparel. Alas, poor man ! What a judicature is set up here to decide the private difference be- tween husband and wife ! The wife will have a velvet gown and a satin petticoat, and the husband thinks mohair or farendon for a gown, and watered tabby for a petticoat, is as fashionable and fitter for his quality. The husband says that a plain lawn gorget of ten shillings pleaseth him and suits best with his condition ; the wife will have a Flanders lace, or point handkerchief of £40, and takes it up at the Exchange. A jury of mercers, silkmen, semps 2 Crompton & Meeson, 40-124; 665 ; S. C. Ridgeway's Hardwioke, 4 Clark & Finnelly, 761. 126. 2 Middleton t . Crofts, 2 Atkyns, LORD BAYMOND. 403 When Orby v. Hales, page 3, was cited, Lord Kenyon ob- served,^ " that this was a note of Mr. Place, whose authority was equal to-that of Lord Raymond ; that he was reputed to be the author of "Watson's Clergyman's Law, and was con- sidered as a lawyer of great eminence." Mr. Justice Grose observed : ^ "It is said to be a note taken by Mr. Place, whose notes, in general, are very accurate." After the death of Holt, — very many of whose judgments he gives us, — and indeed for some time before it, I^ord Ray- mond seems to have relaxed in his assiduity as a reporter. Up to the event spoken of we have 1308 pages ; after it, only about 200. The 3d volume contains the pleadings at large, published by Wilson ; and these, serving as they do to measure, illustrate, and control the Reports, afford a commentary from which the reader may often derive more accurate ideas than from the text itself. Lord Raymond — the son of Sir Thomas Raymond, one of the Justices of the King's Bench, and a reporter already mentioned — was born 1672, called to the bar in 1694, and appointed Solicitor-General in May, 1710 ; Attorney-General in October, 1714; a Judge of the King's Bench in January, 1723 ; and Chief Justice, February 28, 1724. On the Earl of Macclesfield's recession, he was appointed, January 7, 1724, with Sir Joseph Jekyl and Sir Geoffry Gilbert, a com- missioner of the Great Seal, and January 21, 1730-31, raised to the peerage. He died March 19, 1733, in the 61st year of his age. With the death of his son, in 1753, — himself a man of showy parts, — the peerage became extinct. He is included by Horace Walpole, who appears to have been on terms of intimacy with his son,^ among the Royal and Noble Authors, though no mention is made of anything that he wrote except his Reports. I 8 Term, 430 note. ^ Page 432. » Letter to Horace Mann, May 26, 1742. 404 THE COMMON-LA'W EEPOKTERS. In our account of Levinz (^supra, page 306), we mention the well-known " sum " with which arithmeticians puzzle their scholars about the nails in the horse's shoe. A. agrees to buy a horse of B., giving him one penny for the first nail, 2d. for the second, 4cZ. for the third, and so on for each nail. The horse having eight nails in each shoe, and being shod "all round," the question is, How much he costs, — a ques- tion answered by figures that represent a marvellous sum of money. It appears, as we have shown from Levinz, that this "sum" did but record an actual lawsuit of that day, the time of Charles II. Singular to say, our " sum " is found again breaking out as a lawsuit in even a more malignant form, a few years after- wards ; and has a no less grave historiographer, this time, than a Lord Chief Justice of the King's Bench himself, our reporter, the Right Honourable Robert, Lord Raymond. It was in the case of Thornborow v. Whitacre (Lord Raymond, 1164), which was heard before the assembled Judges in the year 1705-6. The defendant, Whitacre, in consideration of Thornborow's giving him 2s. 6d. in hand, and agreeing to give £4 7s. Gd. when he had performed his agreement, promised to deliver to Thornborow two grains of rje on Monday, the 29th of March then coming, four grains on the following Monday, eight grains on the next Monday after that, and so on, doubling every successive Monday for a year. As this involved a du- plication for no less than fifty-one times, the bargain was a worse affair than the one of the horse-shoes. And the con- tract being express and clear, there was nothing left for the defendant but to run the chance of a demurrer. Serjeant Salkeld, the well-known reporter, was counsel to the unfor- tunate contractor, and to what straits the learned Serjeant felt himself reduced may be inferred from his printed argu- ment, — an essay worthy of the best days of the schoolmen. The reporter delivers himself as follows : — LOED RAYMOND. ' 405 " Me. Salkeld, to maintain the demurrer, said, that the agree- ment appeared upon the face of it to be impossible ; the rye to be dehvered amounting to such a quantity, as all the rye in the world was not so much ; and being impossible was void, and the defendant not bound to perform it. He said that there were three sorts of im- possibilities : impossibilitas legis, such are all immoral actions, as to murder, J. S., &c. Secondly, impossibilitas rei, such as are all natural impossibilities, which cannot be done from the nature of the thing. Thirdly, impossibilitas facti, viz. such an impossibility, as though there is nothing in the nature of it impossible to be done, yet it is impossible for a man to do, as to touch the heavens, or go to Rome in a day. And a covenant or condition to do any of these impossibilities is void. And he mentioned the case in Litt. (section 129), that though relief be by law to be paid immediatelj' upon the death of the tenant, yet if the relief be a rose or a bushel of roses, if the tenant die in winter, the lord shall not distrain for his relief, tin the season that roses come ; because the law takes notice that roses cannot be kept, but otherwise of wheat, &c., which may." Such a hard-headed Englishman as Holt did not quite understand Salkeld's learned discussion on the nature and effect of "impossibilities," plain and wise as his distinctions were. " There is a contract" seems to have been the great common-law Chief Justice's idea of the case, and the sum- ming up of both law and gospel in the matter. Accordingly, the reporter gives us the opinions as follows : — "Holt, C. J. — Suppose A., for money paid him byB., will undertake to do an impossible thing, shall not an action lie against him for not performing it ? as in case of a bond with such an im- possible condition, the bond is single. So where a man will, for a valuable consideration, undertake to do an impossible thing, though it cannot be performed, yet he shall answer damages. And as to the impossibility, the court said it was only impossible with respect to the defendant's ability, which was not such an impossibility as would make the contract void. And he said that impossibilitas rei ti were aU one." Powell, J., was plainly of the same opinion. Indeed, he seems to have been personally set against the unfortunate defendant. 406 THE COMMON-LAW EBPOETERS. " He said, ' That though the contract was a foolish one, yet it would hold in law, and that the defendant O0GHT to pay something for his FOLLY.' " This "something," if the contract did "hold in law," being necessarily the value in damages of such a quantity of rye " as all the rye in the world was not so much." The defendant, Mr. Whitacre, was obviously in what Americans call a very tight place. With such opinions as those just now expressed on the part of the learned Judges, — and especially with that of Mr. Justice, Sir John Powell, that he " ought to pay something for his folly,'^ — it was hard to see how the defendant could fail to have judgment given against him ; a judgment of course that he should pay for all the rye that he owed under the contract, that is to say, as we have observed, " such a quantity as all the rye in the world was not so much.'' Undoubtedly the entry of such a judg- ment as the court — assuming, as it did, that the contract, though " foolish," would jet hold in law — was about to give would have put all parties into an awkward predicament. The Sheriff, who was reponsible iov its execution, — that is to say, for delivering the value of more rye than there was in the whole world, — was, perhaps, the worst off : though it was bad enough, too, for the Assessors, who were to cypher the matter out, and tell how many grains were due on the. duplication for fifty-two times ; as also for the jury, who were to say, under oath, what was the actual value in money on the London Corn Exchange of all the rye in the whole world, and of ever so much besides added to it. The reporter mentions that, doubled fifty-two times, there would be five hundred and twenty-four millions two hundred and eighty- eight thousand quarters, or four billions one hundred and ninety-four millions three hundred and four bushels of rye due to Mr. Thornborow. But after this he seems to have got to what Sir Thomas Browne would call an "O Altitudo ! " and what number of grains he would be entitled to it rather LORD RAYMOND. 407 passed, it would appear, even Lord Chief Justice Raymond, the reporter's powers of " figuration " exactly to say. Most fortunately for all parties, as Lord Raymond tells us, upon this state of the argument, the case of .Tames v. Morgan — the suit, to wit, that I have first above mentioned as re- ported in Levinz — "was remembered ; " which, he says, "was an agreement to pay for a horse a barleycorn a nail, for every nail in the horse's shoes, and double every nail, which came to 500 quarters of barley. And at a trial before Hyde, Chief Justice, the jury gave the plaintiff the value of the horse in damages, and he had his judgment." Serjeant Salkeld's demurrer was accordingly overruled, but the plaintiff, not- withstanding this, did not get damages for more rye than the whole world contained. Here is the opinion as given in Modern (vol. vi. p. 305) : — " Let the parties go to trial " (says Holt, C. J., thus fortunately helped out of the difficulty by old Levinz), " and though this would amount to a vast quantity, yet the jury will consider of the folly of the defendant, and give but reasonable damages." " The counsel for the defendant," concludes Lord Ray- mond, "perceiving the opinion of the court to be against his client, offered the plaintiff his half-crown and his cost, which was accepted of, and so no judgment was given in the case." Thus leaving to the world the comfortable assurance that the answer to this famous " sum," which people seem so much disposed to turn into a contract to their own great peril, is not identical in arithmetic and at law. (Edns. : 1st, 1743 ; 2d, 1765 ; 3d, by Serjeant Wilson, 1775 ; and 4th, in 1790, by Bayley (afterwards a Judge of the King's Bench), in 3 vols. 8vo, and much superior to the prior editions.^ It was also edited, A.D. 1832, by Gale, and, I may add, very well edited. The first three editions are in folio.) 1 4 Clark & Finnelly, 776. 408 THE COMMON-LAW KEPOBTEES. FORTESCUE. K. B., C. P., EX., AND CH. 7 Wm. III.— 11 Geo. II. (1695-1738). Sir John Foktbscue, at different times a Baron of the Exchequer, and Judge of the Common Pleas and King's Bench, was the author of these Reports. He derived con- siderable estates in Ireland from his maternal grandfather, Henry Aland,i or perhaps his wife's father,^ and hence is called sometimes Justice Fortescue,^ sometimes Justice For- tescue Aland,* and sometimes, I believe, though I cannot now say where. Justice Aland. His paternal ancestry was illustrious ; and various evidences would indicate that he was rather more willing to take the estates of his Irish relative than the name. In all the places, at least where I find him writing his own name, I find it John Forteseue A.,® Justice Fortescue A.,^ Forteseue A. ; ^ and in these Reports, though the preface is signed J. F. A.., the title sets them forth as by John, Lord Fortescue. He appears to have been a man of elegant and gentlemanlike tastes and pursuits, with as much and not more forcible parts than became a lord author ; and to have had a pardonable " apprehension of gentry and no- bleness," especially of that of the Fortescues. The beautiful edition of Fortescue de Laudibus which appeared in 1741, prefaced with an elaborate treatise which may not improperly be called De Laudibus Fortescue, was issued, it is probable, under his supervision. The whole family of Fortescue — 1 See the case of Mr. Justice * Lord Raymond, 1433; Fortes- Fortescue Aland v. Aland Mason, cue, 438. Lord Raymond, 1433. 6 Allowance to Raymond; West's ' It is stated in The Edinburgh Cases temp. Hardwicke, 507. Review, No. ccxcviii., A. D. 1877, « Fortescue, 41, 67, 92, 94,96, that Henry Aland was the father of &c. Baron Fortescue's wife. ' Fortescue, 437, * Lord Raymond, 1435; 8 Mod- em, 8; Strange, 688, 802. FOKTBSCtTB. 409 their names, alliances, titles, estates, and recovered honors — are illustrated with a zeal and accuracy worthy of a king at arms. Both in this book and in the Reports the main work is prefaced by the same diploma from the University of Ox- ford to John, Lord Fortescue, the subject of our notice, to neither of which works does it seem to be in the least rela- tive. Fortescue was born March, 1670 ; appointed Solicitor- General December 16, 1715, and on the 8th January, 1717, a Baron of the Exchequer. He was transferred. May 15, 1718, from the Exchequer to the Court of King's Bench, and his commission as a Judge of this Court having expired, he was appointed, January 23, 1729, to the Common Pleas, on the bench of which court he remained untU. June, 1746. Resigning his office at this time, he was advanced contempo- raneously to the Peerage of Ireland b}' the title of Baron Fortescue, of Credan, the name of a headland on the eastern shore of Waterford harbor, which formed part of his wife's estate. He did not live long, however, to enjoy his honor, as he died at the close of the same year in which he received it.^ The barony descended to an only son, who never mar- ried, and the Irish estates passed to Lord Fortescue of Castle Hill, whose descendants are said still to hold them. The family of the Fortescues, if we may judge from the portraits which have come down to us, were distinguished by the prominence of that feature of the face which Gilbert Stuart the artist is said to have pronounced the one most potential in it, — the nose. In the case of the particular subject of our notice, Baron Fortescue, of Credan, it was especially pronounced; resembling, if we may believe such Whig authority as The Edinburgh Review, on a matter touching the appearance of any one in the " long-lived race of Honored Fortescue," " the trunk of an elephant." That ' See a particular history of this graphical Dictionary, London, 1798, reporter in The New General Bio- vol. i. p. 173. 410 THE COMMON-LAW BEPOETEES. Review records^ that on one occasion he remarked from the bench to the counsel who was pleading : " Brother , you are handling this case in a very lame manner." " Oh no, my Lord," was the reply, " have patience with me, and I will make it as plain as the nose on your Lordship's face." Besides these Reports and the book De Laudibus, Sir John Fortescue A. published another work of his illustrious ances- tor Sir John, the Chief Justice. The English title of the book, which had never been published before, is "The Difference between an Absolute and Limited Monarchy." It is preceded by some remarks and a preface ; the latter of which seems to have been inappropriately transferred to the Reports very nearly as it stood in the other book. In consequence of the Reports and his Irish peerage, Horace Walpole gives Fortescue a place among the Royal and Noble Authors. Fortescue's Reports are obviously prepared with more than usual pains, particularly some in the first part of the book. Justice Fortescue A., however, generally strikes you as the prominent person in the judicial cast, his opinions having apparently been written out with more care than those of his brethren. The work is distinguished by elabo- rateness, and more, perhaps, by the solicitudes of taste than by any power of thought. It was published about eighteen months after Lord Fortescue's death, but no doubt had been previously prepared by him. At least two of his cases are found in nearly the same words in other reporters.^ The only judicial opinion of Lord Fortescue which ever made a deep impression on the American side of the Atlantic is one not contained, I think, in this volume of Reports, — one in fact for which we are indebted to a clerical production, called the " Journal of the Reverend Francis Willes, Vicar of » No. ccxcviii., p. 330, A. D. 1877. '^ See Fortescue, 298, and 2 Strange, 912; Fortescue, 58, and Fitz- gibbon, 7. FOETESCUE. 411 P$estbury, in Gloucestershire." ^ The case was one involv- ing the difficult question of domicile, and is thus reported : — "A man's bed stood so that he lodged in two parishes at once. The question was where his settlement should be. Mr. Justice Fortescue said, where his head lay, as being the more noble part." There was another Justice Fortescue, generally distin- guished as Justice William Fortescue. He was a man of more weight and abilities than John, and was for some time a Judge of the Common Pleas, and afterwards Master of the RoUs. It is this Fortescue, not John, as stated in some of the biographical dictionaries, who is so often mentioned by Pope, with whom, as well as with Gay and with Horace Walpole, he was on terms of great intimacy. Pope inscribes his 2d Satire to him, and refers to him in those lines : — " Tim'roua by nature, of the rich in awe, I come to counsel learned in the law." Judge William Fortescue is supposed to have assisted Pope, or Dr. Arbuthnot, perhaps, in the burlesque report of Stradling v. Stiles ; ^ for which reason, of course, he is en- titled to a place among the reporters, though he reported also some less entertaining cases, which Mr. Durnford refers to in his preface to Willes. He was made Master of the Rolls in 1741, and so continued till his death, in 1749. The same disposition which I have noted as belonging, a century and a half ago, to the Baron Fortescue, of Credan, to do honor to an illustrious ancestry, has descended very gracefully to our own day. The present Lord Clermont (who bears the family name of Thomas Fortescue) printed at London, in 1869, though unfortunately only "for private distribution," a " History of the House of Fortescue in all its Branches ; " and collected, arranged, and printed in the same way the works of Sir John Fortescue, the founder, as 1 See Law Magazine and Law " Cooper's Keports temp. Lord Review, vol. xi. p. 275. Cotteuham, Appendix, 590, 591. 412 THE COMMON-LAW KEPOETEES. in some senses he may be called, of the family fame, the Chief Justice and Chancellor of King Henry the Sixth. These publications are made the base on which the Edin- burgh Review made, in 1877, an interesting account of the illustrious House of which we speak. (Edns. : Fol., 1748.) COMYNS. K. B., C. P., EX., CH., AND DELEG. 7 Wm. III.— 14 Geo. II. (1695-1741). CoMYNS was considered by his contemporaries. Lord Ken- yon tells us, as the most able lawyer in Westminster Hall.^ His Digest has a higher reputation than his Reports. These were posthumously published, but appear to have been twice edited with some care. (Edns. : The 1st, in folio, 1744, with a portrait, by Vertue ; the 2d, Dublin, 1791, with references, by MacNally; the 3d (or 2d English), by Rose, in 2 vols. 8vo, 1792. All these editions are in English, though Comyns wrote the greater part of his Reports in French.) BOTT'S SETTLEMENT CASES. 7 Wm. ni.— 47 Geo. III. (1761-1827). These are earliest and latest dates of cases reported, from MSS. in my edition, the 6th, A.D. 1827. In Mr. Bott's own later edition, I believe that there are none so early or so late. 1 3 Term, 64. COLLES. — BROWN. 413 COLLES. HOUSE OF LORDS. 9 Wm. III.— 13 Anne (1697-1714). This is a supplement to Brown's Cases in Parliament; and according to Bridgman, " appears to be very accurately taken." i (Edns. : 1789, 8vo, Dublin.) BROWN. HOUSE OF LORDS. 1 Anne— 41 Geo. III. (1702-1801). The idea of making the higher branch of the legislative body a court of judicature in last resort seems to be peculiar, among European nations, to the British people. It has been adopted, with modifications, in a few State governments of the United States of America, but not with good success. In the Federal system it' is wholly avoided. In Great Brit- ain, as the thing operates in practice, it is probable that final judgment, in questions even of civil right, could be nowhere so well reposed. " The House of Lords," said the great states- man of America, Alexander Hamilton, in that Convention which, in 1787, gave to the United States its present Consti- tution, "is a most noble institution. Having nothing to hope for by a change, and a sufficient interest by means of their property in being faithful to the national interest, they form a permanent barrier against every pernicious innova- tion, whether attempted on the part of the Crown or of the Commons." ^ A still more eloquent tribute to this feature of the British Constitution is given by one of the most thoroughly democratic of all the writers of France, 1 Legal Bibliography, 77. = The Papers of James Madison, p. 886, . 414 THE COMMON-LA"W EEPOETEBS. Jean Jacques Rousseau,^ who, ceasing here to be the most pernicious of sophists, takes rank with the most eloquent of philosophers : — " Si vous connaisez la noblesse d'Angleterre, vous savez qu'elle est la plus eclairee, la mieux instruite, la plus sage, et la plus brave de rEurope. . . . Nous ne sommes pas les esclaves du prince mais ses amis ; ni les tyrans du peuple mais ses chefs. Garants de la liberte, soutiens de la patrie, et appuis du trone, nous formons un invincible equilibre entre le peuple et le roi. Notre premier devoir est envers la nation ; le second envers celui qui la gouverne ; ce n'est pas sa volonte mais son droit que nous consultons. Ministres supremes des lois dans la chambre des pairs, quelquefois meme legislateurs, nous rendons ^galement jus- tice au peuple et au roi, et nous ne souffrons point que personne disc ' Dieu et mon ipee,' mais seulement ' Dieu et mon droit.' " Brown's Cases in Parliament, properly so called, do not come down to the present century by many years, the author having died before his work was completed. The work was continued by Mr. Tomlins. (Edns. : One edition of Brown in 7 vols. 8vo, was published in 1784, in which the cases are arranged chronologically. In 1803 Tomlins gave us a 2d edition, in 8 vols. 8vo, in which the cases are arranged alphabetically, according to subjects. On account of this different sort of arrangement, readers are constantly confused in searching for cases to which they are referred. A person having one edition will make a reference which, in it, will be perhaps in the first volume, and will not hold good to a reader who has the other, where it may happen to fall in the last.) ^ La nouveUe Heloise, I. Partie, Lettre LXII. PBACTICAL KEGISTER, C. P. 415 PBACTICAL REGISTEB OF THE COMMON PLEAS. 3 Anne— 15 Geo. II. (1704-1742). This work must be distinguished from the Practical Reg- ister in Chancery. Indeed, as there are several books bearing the name of Practical Registers, I give the title of the present work. It is, I believe, " Practical Register of the Common Pleas, containing Select Cases in Points of Practice in that Court, in the reigns of Queen Anne, Geo. I. and Geo. II." It is sometimes cited as Richardson's P. R. C. P. ; sometimes (rarely) as Thornton & Hay's Practical Register ; but com- monly as " Practical Register of the C. P.," without any author's name. Books of Practice are hardly considered in the nature of strict authority, though they are occasionally cited where no more dignified Reports can be found. ^ Their value depends, of course, greatly upon their measure of correctness in rela- tion ; but when known to possess accuracy in this particular, deserve considerable respect. " The great authority with me," says Bridgman, C. J.,^ "is constant practice, if I am well informed." Indeed, an attentive observer of the ques- tions which arise in all our courts upon motion or rule day, and who notes how lynx-like the professional eye becomes to discover anything wrong in the mechanics of Justice, will be satisfied that no irregularity in that department can become chronic. Rochefoucauld observes,^ with that wisdom wherein Satan made him wise above his fellows, " On pent etre plus fin qu'un autre, mais non pas plus fin que tous les autres" — a sentiment which his brother devil, Talleyrand, stole or repro- duced when he said : '■'■ H y a quelqu'un qui a plus d'Ssprit que personne: c'est tout le monde ; "* and which Madame de Stael 1 2 Atkyns, 22; Mitford's Plead- » Maximes, 416. ing, 7 note. * The Quarterly Keview, vol. " Carter, 15. bcsxiv. p. 77. 416 THE COMMON-LAW REPORTERS. presented with all her sprightliness, without perhaps remem- bering either, in her declaration, " Le 'public est un Jiomme cfSsprit quoiqu'il se compose tant de d'etres stupides." ^ The big, broad eye of the profession seldom either slumbers or sleeps. Practice is law solidified into fact. It is even more than that custom, which is the common law itself; for it is settled, and is allowed to be settled, not by the silent acquiescence of the common world, but only after the storm of interests and the conflict of intellect. It is monumental evidence, pre- senting those outward and visible signs which the founders of creeds have left as the best memorials of their life and doctrines, — the course of external observance, performed in undisputed recognition of fact, and testifying to it with a clearness and fixity which makes evidence of the highest order .^ The Practical Register of the Common Pleas is, however, a regular book of Reports, and of nothing else ; for the most part upon points of practice, but not confined to them. I infer from the mode in which this book is cited in a modern English reporter that it is one of some rarity.* COOKE. C. P. 5 Anne— 20 Geo. n. (1708-1747). These decisions, which are upon points of practice, and are cited not unfrequently in the Reports of Sir William Blackstone and in Wilson, enjoy a good reputation. Serjeant Jephson, in citing a case reported in this volume, says : " See the case at length ; for it seems well reported by that very able chief prothonotary of the C. B." * A new edition of the book has recently appeared, printed from a copy of the 1 Reflexions sur le Suicide, a ^4 Meeson & Welsby, 408. Londres, 1813, p. 17. « 3 Wilson, 184. 2 10 Clark & Finnelly, 685. COOKE. — GILBERT. 417 original work formerly belonging to Mr. Justice Nares, and enriched with notes by himself and Chief Justice Eyre.^ It forms one of the series of Stevens & Haynes' reprints of early English Reports, and, like the other volumes of the series, is a truly elegant book. The editor is Mr. Thomas Townsend Bucknill, of the Inner Temple. (Edns. : 1742 ; 2d ed. 1747 ; and 3d ed. 1872, 8vo.) ROBERTSON'S APPEAL CASES. (1707-1727.) Published once and only time, A. D. 1807. SESSIONS CASES. K. B. 9 Anne— 21 Geo. II. (1710-1748). An indifferent book, or worse. (Edns. : 1st, 1750-4 ; 2d, 1760, 2 vols. &vo ; 3d, 1878, in one vol. small 4to.) GILBERT, CASES IN LAW AND EQUITY. 12 Anne— 1 Geo. I. (1713-1715). The title of this book is : " Cases in Law and Equity, argued, determined, and adjudged in the King's Bench and Chancery, in the 12th and 18th years of Queen Anne, during the time of Lord Chief Justice Parker ; with two treatises, the one on the action of debt, the other on the Constitution of England." » See Crossley v. Shaw, 2 W. Blaekstone, 1088. 27 418 THE COMMON-LAW REPORTERS. I have set forth the title of this work in order to distin- guish it from another Gilbert's Reports, more exclusively in Chancery, and mentioned hereafter, in proper place, among the Chancery reporters. The present work does not, I be- lieve, contain a single case in Chancery ; in which respect, if I am correct, its title is false. Mr. Viner^ said that out of the many books ascribed to Gilbert, he could not find that one had been published by the consent, of any person entitled to give it. The present volume, I presume, forms no exception to his experience. "There are one or two cases," says Mr. Lofft,^ "so well reported as not to be unworthy of him ; but in general they are loose notes very badly edited." I know not to what cases Mr. Lofft refers, but two of Gilbert's cases ^ are stated to come " ex rel. MagWi P. Tf.," — " initials," says Mr. Heterick, " which I doubt not denote Mr. Peere Williams ; especially as I find a third case which is given in Gilbert almost ver- batim by Peere Williams also, Williams's statement only being omitted in Gilbert.* (Edns. : 1st, 8vo, 1760 ; 2d, " revised and corrected, with many additional notes and references," 8vo, Dublin, 1792.) CASES OF SETTLEMENT. Pages 1-132, cases from 1710-1727, reported from MSS. The rest of the volume, besides Indices, consists of an Ap- pendix (added after the first edition), containing (pp. 133- 298) cases earlier, and a few later, all taken from printed books, and (pp. 299-417) abstracts of statutes. (Edns. : 1729, 1732, 1742.) ^ Preface to Viner's Abridgment. Cases in Law and Equity, 299, ^ Preface to Lofft's Gilbert on and Muston v. Yeatman, Id. 305. Evidence. * Myles v. Williams, Gilbert, ^ Ryder v. Broadbent, Gilbert, Cases in Law and Equity, 318 ; S. C. 1 Peere Williams, 248. BXJNBURY. 419 BUNBURY. EX. 12 Anne— 15 Geo. II. (1713-1742). LoKD Mansfield, in a case where he differed from a nisi prius decision reported in these cases, characterized them as very loose notes, never designed by Mr. Bunbury for publi- cation.^ And Sir Thomas Plumer, having this remark per- haps in his mind, postponed his final decision in a cause before him to look into a case quoted from Bunbury, ob- serving of the volume, that it is " certainlj^ of no great authority." ^ It is true that the book was published posthumously ; but it was edited by Serjeant Wilson, who was Bunbury's son- in-law, and whose capacity for the editorial duty cannot be doubted. It is possible, as Mr. Bunbury enjoyed the rank of Postman of the Court of Exchequer, and was engaged at that bar exclusively for at least thk'ty years, that too high expectations were had of his notes. They are short, and therefore must often be unsatisfactory ; but as Serjeant Wilson tells us that the printed volume contains such cases only as the author took in court with his own hand, and are settled and corrected by himself from his notes, it is possible that Lord Mansfield's expression ought not to be taken too extensively. He meant nothing further, I suppose, than that the cases being stated but shortly, were not the most satis- factory sort to be quoted as precedents. And this view of mine, expressed in an earlier edition of this book, has received confirmation, I am happy to see, in some remarks of Baron Piatt and Baron Parke, published since the edition to which I refer appeared.^ ' 5 Burrow, 2658, and see Regina kyns, 43, 50, 5 Wendell, 578, and V. Edwards, 9 Exchequer, 43, 51-53 ; 1 Roper on Husband and Wife, S. C. 24 English Law and Equity, 449. 444-447. See also 5 Wendell, 578. = In 9 Exchequer, 51-53, Bar- " 2 Maddock, 140, or American ons Piatt and Parke speak as fol- editionof 1829, 419; and seel At- lows: "The authority of the note 420 THE COMMON-LA'W BEPOETEES. (Edns. : Fol., London, 1755 ; Dublin, 1756, fol. ; and 2d, revised and corrected with the addition of many references, 1793, 8vo. It is a curious incident, brought to my observar tion by Mr. Sheridan Read, of the Paris (Illinois) Bar, that in the London edition of Bunbury, at the end of the preface, the name of the editor, " George Wilson," is written, not printed. Mr. Read supposes that the signature is an auto- graph.) STRANG-E. K. B., C. P., CH., AND EX. 2 Geo. I.— 22 Geo. II. (1716-1749). Chief Justice Willes, who would be likely to know, speaks of Strange as " a faithful reporter," i and this idea is confirmed by Chancellor Kent.^ But Sir Michael Foster, in Bunbury," says the former, in character which Lord Mansfield is reply to counsel who had cited Lord represented to have done." And Mansfield's dictum, " cannot be got since the expression of Lord Mans- rid of in the manner attempted ; for field had been alluded to, the Baron although Lord Mansfield, in the thought it right thus to bring before case of Tinkler v. Pool (.5 Burrow, the court the character given to 2658), cast some imputation on Bun- these very notes by the learned bury's notes, the learned Serjeant Serjeant who had the responsibility who edited them gives them a very of publishing them; " Ae himself different character, and it may -be hearing as high a character as any doubted whether the observations member of the bar." The case in attributed to Lord Mansfield were which these remarks of the Barons not the result of some hasty expres- of the Exchequer are found — a sions on his part before he was fully case depending "wholly on prece- aware of the value of the notes." dents and authority "— was de- And after quoting the account of cided, it may be weU to add, in them as given by Serjeant Wilson, accordance with the precedent cited he proceeds: "These notes having from Bunbury. been collected and published under ^ 2 Wilson, 38. such circumstances and by persons * 1 Commentaries, 488, and see of such experience and learning, it the remark of Spencer, J., 6 John- certainly appears to me rather a son, 399. Lord Hardwicke, refer- rash proceeding to give them the ring to an argument of his own, STBANGB. 421 referring to one case in particular, " cannot help saying, that the circumstances omitted in the report are too material, and enter too far into the true merits of the case, to have been dropped by a gentleman of Sir John Strange's abilities and known candor, if he had not been over-studious of brevity." ^ Sir James Burrow notes the sanie thing where a case cited from Strange had perplexed the bar and court,^ — Mr. Dun- ning saying that it was " ill reported ; " Lord Mansfield, that it was " unintelligible ; " while Dennison, J., defended it as " rightly taken." Sir James, in a marginal note, adds : " If it is rightly taken, I am sure it is not fully taken. At least I know that my own note of it employs twice as many pages as his does lines." A new edition of Strange's Reports was published by Mr. Nolan, in 1795 ; who says, that it has been his " first object to clear up those few passages in which the author, from his conciseness, is liable to the imputation of obscurity, and to mark those still fewer places, in which he seems to have fallen into errors." Yet even of Strange, thus revised, Sir Anthony Hart is made to say, that it is not "a book we can place much confidence in."^ Sir Anthony Hart is a respectable authority ; but the modern equity law- yers distinguish cases so much by filling up, by touches, shading, and miniature finish, that perhaps the Vice-Chancel- lor would be thought fastidious by a common lawyer, who would look for nothing beyond a good outline sketch, or a well-conceived study. There is a volume in existence called " Select Cases on Evidence ; " or sometimes " 8vo Strange." * It is now but while a young man at the bar, men- ' Reports, &c., 294. See also tions that Strange borrowed his 2 Burrow, 1072, per Lord Mansfield. papers to transcribe ; so that what- ^ 3 Burrow, 1428. ever faults the argument contained ' 1 Simons, 432. were not the reporter's, but his own . *■ Cited by Buller, arguendo, Cow- (Lord Campbell's Lives of the per, 287. Lord Chancellors and Keepers, vol. V. p. 16.) 422 THE COMMON-LAW KEPOETEES. rarely to be seen. A stop was put to the sale of the work on account of its interference with Strange's Reports, from which many cases in it are taken. Sir John Strange was a fellow-student with Philip Yorke, afterwards Lord Hardwicke, with whom he appears to have maintained through life a delightful intercourse. He was made Solicitor-General in 1736, on the promotion of Sir Dudley Ryder ; Recorder of London, in 1739 ; and Master of the Rolls, January, 1750. He died in May, 1754. The Duke of Newcastle, in a letter to Lord Hardwicke, referring to his death, speaks of him as a person whom he " honored and loved extremely, for his many excellent public qualities, and most amiable private ones." " I scarce know any man," he continues, " with whom I had so little acquaintance, that I should more regret." ^ In Strange's Reports there are certain of Lord Hardwicke's arguments at the bar, and some of his opinions, during the short time in which he was Chief Justice of the King's Bench. We have Lord Hardwicke's authority, that in one case he gave Strange a note of his argument, and it is probable, from the intimacy which prevailed between Sir John and Lord Hardwicke, that the Chief Justice may himself have occa- sionally corrected some of the reports of his judgments? These cases of Hardwicke, while Chief Justice, occupy 118 pages; that is to say, from page 953 to page* 1071. Mr. Het- erick remarks of them that " but few formal judgments are reported, and that they do not appear to have been taken with great care, nor to show any extraordinary correctness." (Edns. : 1st, by the reporter's son, in 1755, 2 vols, fol., with a very fine engraving, which, when found upon undam- aged paper, quite reconciles you to retaining the folio edition ; 2d, with additional references, in 1782, 2 vols. 8vo ; and 3d, the edition of Nolan, already alluded to, 2 vols. 8vo, 1795. ^ Harris's Life of Hardwicke, ' Harris's Life of Hardwicke, vol. vol. iii. p. 11. i. p. 351. STRANGE. — LILLY. — BARNAEDISTON. 423 There is also a less correct edition of Strange, iu 2 vols. 8vo, 1782, but of 'an inferior size, and double paging.) LILLY. CASES OF ASSIZE. The author of this book was John Lilly, author of the Practical Conveyancer. There is no evidence that he de- signed it for the press. It was published after his death, by William Nelson, a sort of Ned Purdon of the law, whose labors, 1 believe, are about as much esteemed as those of booksellers' hacks in general.^ There are but seven cases in the whole book. And as the English bookbinders of that day had not all learned the elegant art, now so generally known to bibliopegists, of filling up a book, when too thin to stand, with fly-leaves front and back, the deficiency iu the case of Lilly was eked out with a long, rambling, and non- sensical preface, which occupies a large part of the volume. The book is now scarce, probably because it was always worthless. (Edns. : FoL, 1719.) BARNARDISTON. K. B. 12 Geo. I.— 8 Geo. II. (1726-1735). Not to be confounded with Barnardiston's Chancery Cases. Barnardiston was a careless dog, and his Reports, as well as 1 Nelson is known as the author last resembles that to 5 Modern) ; of a small volume of Chancery Re- by an Abridgment of the Law, in ports, The Rights of the Clergy, two folios, and, I believe, by a The Office and Authority of a small anonymous work, cited as The Justice, The Lex Testamentaria Old Law of Evidence, — a book more and Lex Maneriorum, The prefaces creditable to him, says Mr. Green, to Lilly, 5 Modern, the Cases temp, than his other performances. Finch, and Cunningham (which 424 THE COMMON-LAW KEPOETEKS. of Chancery Cases as in the King's Bench, were for a long time but little esteemed.' The former book Lord Mansfield absolutely forbade to be cited ; " for it would only be mis- leading students to put them upon reading it." He said it was marvellous, however, to those who knew the Serjeant and his manner of taking notes, that he should so often stumble upon what was right ; but yet, that there was not one case in his book which was so throughout.^ Douglas, likewise, calls the King's Bench Reports of still less authority than 10 Modern ; ^ and Lord Kenyon spoke of the author as " a bad reporter." * Quite recently, in the Court of Common Pleas of New York, Woodruff, J., criticised this book with some want of respect.^ In regard to the Chancery Cases, when Mr. Preston cited a case from them, Lord Lyndhurst exclaimed, " Barnardiston, Mr. Preston ! I fear that is a book of no great authority ; I recollect, in my younger days, it was said of Barnardiston, that he was accustomed to slumber over his note-book, and the wags in the rear took the opportunity of scribbhng non- sense in it." And Judge Mason, of New York, admitting that a case cited from them " fully bears out the position contended for," refused to follow it, because the case was " not only unsupported by any other English authority, but is also in opposition to the principles of the English de- cisions." ^ But there are opinions in favor of all the volumes. On the occasion just mentioned, where Judge Mason refused to ^ 1 Douglas, 333 note. Anne before Barnardiston began ' 2 Burrow, 1142, in the margin, his Reports. Moreover, Fortescue, -' 2 Douglas, 689 note. " It may 145, and 10 Modern, 190, report the be remarked, however," says Mr. case as Barnardiston states it." Heteriok, in commenting on this * 1 East, 642 note; and see 8 observation of Douglas, " that the Term, 48. case in Barnardiston which elicited * 7 E. Delafield Smith, 519. it is there only stated, and perhaps ^ Sanford's Superior Court, New by counsel; for it was a case tempore York, 677-688. BAENAEDISTON. 425 follow the Chancery Reporter, he in part observed what was true,^ that Chancellor Bland, of Maryland, with Lord Mans- field's censure of the book full before his eyes, thought that Barnardiston's Report seemed " to be according to the reason of the thing ; " that the Chancellor was much inclined to believe that the very case objected to had been mainly in- strumental in establishing the rule of the Maryland Chan- cery ; and that however the case might be looked on in England, it would have to be " admitted as right through- out " in Maryland. So, when Lord Lyndhurst reproved Mr. Preston, Mr. Preston is reported to have replied : " There are some cases, my Lord, in Barnardiston, which, in my ex- perience (and having had frequent occasion to compare that reporter's cases with the same cases elsewhere), I have found to be the only sensible and intelligent reports ; and I trust I shall show your Lordship that it may be said of Barnardiston, 'non omnibus dormio.'" [Qu. Anglice, "I 've got one eye open."] On another oecasion,^ Lord Eldon said, " I am old enough to remember Lord Mansfield, who practised under Lord Hardwicke, by whom all these cases were decided, state his opinion of these Reports (Chancery Cases), for he knew the man. I take the liberty of saying, that in that book there are reports of very great authority." On a third. Lord Manners remarked : " Although Barnardiston is not con- sidered a very correct reporter, yet some of his cases are very accurately reported." * On a fourth. Sir W. Grant, when 1 3 Bland's Chancery, 162. quoted) before Lord Hardwicke, ^ 1 Bligh, New Series, 538. I and Mr. Barnardiston was at the have noted in another part of the bar at the same time, although after- book (supra, " Preliminary Re- wards, when Mr. Murray had be- marks," § 19 note) a somewhat come Lord Mansfield, when Mr. more dramatic report of Lord Barnardiston's Reports were cited, Eldon 's remarks, given in 1 Dow, his Lordship used to say, 'Barnard — New Series, 11, where the Earl is what you call him.' In that book, made to say, "Lord Mansfield, however, my Lords, there are some then Mr. Murray, argued that case reports of great value." (a case which Lord Eldon had ^ 2 Ball & Beatty, 386. 426 THE COMMON-LAW KEPOBTEES. Solicitor-General, observed,^ " that though those Reports are not approved of, they are generally, in substance, pretty cor- rectly stated," and that two MS. notes of the case which he cited agreed in substance with the report of Barnardis- ton. Mr. Wilson, in quoting a case from the same work, said that he had compared the case with the Register's book, and found it " very accurate." ^ In a yet additional case, Sir R. P. Arden, Master of the Rolls, influenced by the bad reputation of the author, had looked into the Register's book, where he found that the case was reported essentially in the same way as by Barnardiston.^ Chief Baron Alexander praised him highly.* And in regard to the Common-Law Reports it is to be noted, that in one of the cases, where Lord Kenyon adverted to the unauthoritative character, in general, of the volume, he yet remarked that Barnardiston's report agreed with one by Strange,* and decided accordingly. In a case still additional, when Mr. Agar cited a case out of 3 Barnardiston, Lord Erskine, C, allowed the case cited as " a precise authority ; " ^ and in one superadded to all. Best, C. J., referring to a case in Atkyns, speaks of it^ as better reported in Barnardiston. And to go yet further, to the well-head of the condemnation, it is worth recording that, when the volume was first assailed, and Mr. Dunning, being forbidden to cite it, was obliged to have recourse to a MS. note, no difference is stated to have been shown or suggested between that note and the case as found in the printed Re- ports.^ The judgment of Lord Mansfield may therefore be con- sidered as now largely corrected. (Edns. : The King's Bench Reports are in 2 vols, fol., 1744.) 1 4 Vesey, Jr. 488 note. « 8 Term, 48. ^ 4 Term, 57 note. « 13 Vesey, 322. ' 2 Brown's Chancery Cases, 86. ' 4 Bingham, 284. * Gresly's Equity Evidence, 301 " 2 Burrow, 1142. See supra, note. " Preliminary Remarks," § 27. FITZGIBBON. 427 FITZGIBBON. K. B., C. P., EX., AND CH. 1 Geo. II.— 6 Geo. II. (1728-1733). LoBD Hardwicke, referring to this book, adds : " Which I do not care to rely on, as it is of no authority, though this and some other cases are well reported, this particularly finely, for I have a MS. note of it." ^ The volume was also called in Andrews, the reporter,^ " a book of small author- ity ; " though it is worth observing that the personal recol- lection by Sir John Strange of the case quoted confirmed the report in Fitzgibbon, and that the court decided the case in accordance with it. Chief Baron Parker, too, though he said that " the cases in this book are very incorrectly re- ported,"^ yet spoke of two cases which he was citing as authentic and as having been communicated by Mr. D' Anvers to the publisher, to make the book sell better. And Mr. Green, while speaking of " the general ill repute of the book," remarks upon the testimony in favor of a particular report.* Both the credit and the discredit which has attached to the book is explained by the following note made by Sir James Burrow,^ in his copy of Fitzgibbon : — "This book was published the very next Term after it ends, viz. Michaelmas Term, 5th Geo. 11., and was then produced in 1 1 Kenyon, 71 ; and see 1 Vesey, Fitzgibbon was condemned, comes 10 ; 3 Atkyns, 610; also Id. 806. to Andrews ex relatione alterius, and ^ Andrews, 75. The King v. the person who reported it should Mann, which is the case that An- perhaps have said the case cited drews states to have been cited from from Fitzgibbon. Fitzgibbon, though reported in Bun- * West's Cases temp. Hard- bury, 164, and in Strange, 749, wicke, 509. quite at large, is not reported in * Wythe, edition of 1852, Ap- Fitzgibbon. However, The King w. pendix, p. 369, note 30. Mann is cited by Sir John Strange ' Dublin University Magazine for in Fitzgibbon, 291, in Miles v. December, 1847, vol. xxx. p. 671 Keyes. The case in Andrews, where and note. 428 THE COMMON-LAW EEPOKTERS. court, when it was treated with the utmost contempt, both by the Bench and Bar. The author of it was an Irish student, who was called to the bar in either Trinity or Michaelmas Term, 5th Geo. II. , and the current report was, that the scheme of publishing this book was to satisfy Walthoe, the bookseller, either for chamber- rent, or money advanced towards the charges of the author's call to the bar. Lord Raymond spoke of it at the sittings a few days after with a good deal of resentment, and threatened that he would take care to see Walthoe punished for the publication of it. But nothing came of it. Mr. Fitzgibbon went to Ireland immediately on being called. I think Lord Eaymond called this performance a libel upon the Bar and the Bench, and said that it had made the Judges, and particularly himself, to talk nonsense by wholesale. But I have examined all the King's Bench Cases in it very care- fully, and have compared them with my own notes, and find him to have made the Judges talk almost verbatim what I took down myself from then- own mouths. There are, indeed, errors in it ; but upon the whole the cases seem to be clearly stated, the argu- ments of different counsel at difierent times clearlj-, forcibly, and j'et briefly represented, and the sense of the court truly delivered. In short, there does not appear to me any want of accuracy, per- spicuity, or judgment. However, after all, nothing can excuse such a hasty unlicensed publication of the performances of a private note-taker without authority or revisal." Fitzgibbon, though but little known either in England or America, except by his Reports, was a man, I believe, of some accomplishment and mark. He was educated in one of the French universities, where in that day he did not unlearn some excessive devotion to the Roman Cathohc religion, with which he had been imbued by Irish parents at home. On his return to Ireland from England, where as a student he had resided for five years and published his Re- ports, he applied, in 1733, for a call to the Irish Bar. His admission was violently opposed by a Protestant faction of King's Inn, who having, probably, no better ground to oppose* him, contended that the publication of his Reports was a direct contempt against the Judges of England, and one which deserved punishment from their brethren in Ireland. riTZGIBBON. 429 The opposition to him was not successful. He was admitted to the bar, where he afterwards took a dignified and success- ful position.^ His name is better known, however, to history, through that of his descendants. His son was John Fitzgibbon, the first Earl of Clare, the trusted friend and supporter of William Pitt, through all the crises of the great premier's administration, and for several years distinguished for the learning, ability^ and power with which he discharged his official duties in times of popular furj^ and commotion as Lord Chancellor of Ireland ; " the wise and indomitable counsellor," says one of his biographers, with eloquence and truth worthy to be graven in an epitaph, " who, almost alone, advanced to meet the enemies of the Constitution in the gate ; and amid weakness, defection, and obloquy the most dispiriting, by his vigor and firmness maintained the cause of British rule, and preserved his country from the horrors of anarchy and revolution." One of Fitzgibbon's daughters married Mr. Jeffreys, the opulent proprietor of Blarney Castle,^ and is immortalized in song as, — " Lady Jeffreys who owns this station, Like Alexander or like Helen fair, There is no commander throughout the nation. In emulation can with her compare." The name of the reporter's grandson, the second Lord Clare, will be vividly remembered by the readers of Byron : his " earliest and dearest friend," " the only (male) human being," as he records, for whom he ever felt " anything that deserves the name of friendship." During Byron's sojourn at Pisa, Lord Clare crossed the Alps from Geneva to see him, " As I have always loved him," writes Byron, " since ' Duhigg's History of The King's ^ Shiel's Memoirs of the Irish Inn, 283. Bar, vol. i. p. 67 note, New York, 1854. 430 THE COMMON-LAW KEPOETBES. I was thirteen, at Harrow, better than any male thing in the world, I need hardly say what a melancholy pleasure it was to see him for a day only ; for he was obliged to resume his journey immediately." The delights of the interview, and tlie feelings which overpowered the gifted poet at their sepa- ration, have been recorded by the Contessa Guiccioli, in that beautiful language which it would be profanation to translate : — " La venuta pure di Lord Glare fu per lui un epoca di grande felicita. Egli amava sommamenie Lord Clare; egli era cosi felice inquel breve tempo che passo presso di lui a Livorno, e il giomo in cui si separarono fu un giomo di grande tiistezza per Lord Byron. ' lo ho il pressentimento che non lo vedro piu,' diceva egli ; e i suoi ocehi si riempirano di lacrime : e in questo stato I'ho veduto per varii settimanie doppo la partenza di Lord Clare, ogni qual volta il discorso cadeva sopra di codestoil suo amico." ^ I observe that the name of the reporter as given on the titlepage is Fitzgibbons. The true name, I believe, is Fitz- gibbon. He died in 1780. (Edns. : Fol., 1732.) LEACH. K.B. (CROWN SIDE.) 3 Geo. H.— 55 Geo. IH. (1730-1815). (Theeb are editions in 1789, 1792, 1800, and perhaps in other years ; the best and most complete is in 2 vols. Svo, 1815.) 1 Moore's Life of Lord Byron, vol. v. pp. 340, 362, vol. vi. p. 8, Murray, London, 1832. SECOND OK "W. KELYNGE. 431 SECOND OR W. KELYNGE. 4 Gbo. 11.-9 Geo. II. (1731-X736). Thus cited to distinguish it from Kelyn^'s Crown Cases, which is cited as 1st or J. Kelyn^. The volume contains a few Reports of Equity Cases. The tables of the names of cases are awkwardly distributed throughout the body of the volume. " As this book," says Mr. Green, " is nowhere mentioned in Viner, I think it not improbable that it is the book alluded to by him in the following passage : ^ — " ' Among those unlicensed books there is one so very trifling, and consequently so high an affront to the great name, the initial letters whereof are so disrepeetfuUy prefixed to it, especially in the Eepertorium Juridicum, that he (Mr. Viner) has left it to perish for the benefit of the public' " Judge Pendleton, of the Virginia Court of Appeals, has written in his copy " Hardw.," to denote the great name mentioned, and W. Kelynge is sometimes cited as " Hardw." ^ " If it be the book referred to by Mr. Viner," continues my learned friend, " I have a better opinion of it than he, — cer- tainly it is not one of the best ; but it is as good as some that Mr. Viner has abridged, such as Comberbach and 8th Modern." (Edns. : The first in 1740, without the author's name. In the 2d, fol., 1764, there was added, according to the title- page, about seventy additional cases. This edition was re- printed in 1873, 8vo, by Messrs. Stevens & Haynes.) 1 Advertisement following the ningham's Cases tempore Hard- Table of Cases in volume 19 of wicke were in print when Mr. Abridgment, folio edition. Viner wrote this Advertisement, no ' See infra, Chancery Reporters, 'one of them can be the book re- tit " W. Kelynge." As neither ferred to by him. Annally's, Ridgeway's, nor Cun- 432 THE COMMON-LAW EEPORTEES. BARNES. CASES OF PRACTICE. 5 Geo. H.— 34 Geo. U. (1732-1760). Sir Francis Bullee, in a case where he subverted a decision as reported in this book, spoke of Barnes as a writer " who has indeed, in general, reported the practice of the court with accuracy," but whose assertion in the particular case " is unsupported by authority, and contradicted by reason." ^ Mr. Justice Heath, on another oceasion,^ went farther, and said that the case cited from Barnes had been overruled, and that, indeed, " many cases reported in that volume are not law." The " Lahore "-ons Chief Justice Abbott, whose copy of Barnes I remember to have seen in the library of Christ Church, Oxford, with the marks of care- ful reading, in a third instance, even indulged in something like a flight of wit, a thing very unusual for him. Mr. Manning had moved for a rule absolute in the first instance, vouching a case from Barnes as authority. The Chief Justice, without much ceremony, refused the rule, saying, " You may find rules absolute in Barnes for anything." * In- our own country we find Mr. Williams, of the New York Bar, styling Barnes " an authority of httle weight ; " and remarking that " his cases are so contradictory that they destroy each other." Chancellor Kent does not appear to have entirely responded to so general a censure ; but the question before the court being one of practice, he simply says, neither affirming nor denying the position of Mr. Williams, that the cases cited from Barnes are good as historical evidence to prove the point of practice in issue.* And on a question as to the character of the reporter, it is worth noting that Chief Justice Willes, where he differed in opinion from Barnes's work, always said "that the court 1 1 Bosanquet & Puller, 833. » 3 Bosanquet & Puller, 245. 8 1 Chitty's Reports, 233. * 2 Johnson's Chancery, 96. BASNES. — BUEKOW'S SETTLEMENT CASES. 433 and not Barnes was mistaken." ^ Our late lamented Penn- sylvania Chief Justice," Gibson, who, I know, in his earlier life, gave more attention to bibliography than is usual with men of his commanding force of mind, says in one place,^ " Barnes is good authority, I believe, for points of practice, though for little besides," — a criticism which, on happening afterwards to observe that the book contains nothing but cases of practice, he justly remarked, " was not very discrimi- nating." ^ (Edns.: 1754, 2 vols. 8vo; reprinted with a Supplement in 1756 ; again in 4to, 1772 ; and in 1790, in 8vo. The earlier editions are, of course, less complete than the last. The paging of the 4to and 8vo editions of Barnes does not agree. An edition purporting to be the 2d, " revised and corrected," appeared in Ireland in 1788.) BURROWS SETTLEMENT CASES. 6 & 7 Geo. IL— 16 Geo. III. (1733-1776). (Edns. : 1st, ; 2d, ; 3d, 4to, 1786.) ^ Richardson's Prao. C. P., 5th ing to discover his error. "It was edition, 88 note. one of my blunders," he said pleas- ^ 1 Watts, 490. antly; " I suppose that I had heard ' This most amiable and engag- thus, and so I said it." Few per- ing person, whose fine understand- sons, I suspect, in so long, laborious, ing and various accomplishments and difficult a judicial term as his, of mind were equalled only by his — a constant and severe service of magnaminity and goodness of na- forty years, — have made fewer tore, was much amused on happen- blunders than he. 28 434 THE COMMON-LAW BEPOETEES. '^' '^ BtlDGEWAY'S HARDWICKE. K. B., CH. 7 Geo. n.— 11 Geo. II. (1733-1737). This volume, under the title of "Cases during the Time of Lord Hardwicke," was printed in 1794, from a manuscript of some reputation, though the author of it is not known. In addition to the common-law cases reported in it, the book contains about an equal number of cases in Chancery, decided between the years 1744 and 1746. See Chancery Reporters, post, same title. The friend to whom the third edition of this work is in- scribed thus writes to me in regard to the Cases at Law which are reported in this book: — "I am satisfied that all the cases at law in Ridge way's Hard- wicke are printed from the same MS., or a copy of it, from which Mr. Leach has printed the cases during the same term of time, in his additions to 7th Modern.' Thus you will observe, 1st, that all the cases in the former are given in the latter, except three ; ^ the first two of which Mr. Leach may have left out as not worth reporting, and the last because it is so well reported in other books. 2d. All the cases in 7th Modern, during the term of time traversed by Ridgewaj-, are in the latter, except the few mentioned in the note at the bottom of this page,' and which Ridgeway may have left out, for reasons similar to those just mentioned with regard to Leach. 3d. The cases follow one another, in both books, in exactly the same sequence ; and 4th, the Reports of S. C, in both books, are so literally alike, that it is impossible they could have been reported by different hands, — the differences being merely verbal, and not near so great as the aifferences which Mr. Leach has felt himself authorized to make in books already printed, which he undertook to edit." * 1 From page 169 to page 230. 169 ; Moy v. Osborne, Id. 191 ; " The King v. Rainsford, Ridge- Webb .,. Dwight, Id. 191; Cook v. way's Hardwicke, 59; Low's Ex'rs Vivian, Id. 203; Tryon v. Carter, V. Brown, Id. 81; and Middleton v. Id. 231; Hallet v. Lawton, Id. 238. Crofts, Id. 109. • Thus the 2d case in Ridgeway's ' The Kings. Taylor, 7 Modem, Hardwicke (p. 2, Mayor of Lon- EIDGEWAY S HARDWICKB. — CUNNINGHAM. 435 Ridgeway's Hardwicke was printed at Dublin. Some copies of it bear the London imprint, but the titlepage alone, I believe, was changed. CUNNINGHAM. K. B. 7 Geo. II.— 9 Geo. II. (1734-1736). Several of the cases in this volume are reprinted almost verbatim in the work which follows, as they also are, with more or less variation, in Ridgeway, and the part of 7th Modern which contains cases in the King's Bench. " It is obvious," says Mr. Green, who informs me of this fact, " that all four books come from some copy of the same MS." A note in the preface to the book announces that a second part is in press, and would be published immediately. No such part ever appeared. "This second part," says Mr. Heterick, don V. Tench), which presents as great a variation from 7th Modem as any one reported by the two, differs from it only in stating seria- tim the objections made by counsel, and then giving the opinion of the court upon the whole of them, at the end of the case; while in 7th Modern, at page 173, the court is made to answer each objection as made, and before the counsel pro- ceed to make another. Now, after reading these two reports, in Ridge- way and 7th Modern, turn to the 1st, 2d, 4th, and particularly the 7th case in Leach's edition of 8th Mod- ern, and compare the reports of these cases, as there given, with the reports as found in the two former editions of the same book, and you will see that Mr. Leach has made greater alterations, and sometimes on the same point, with books in print. So again at pages 21 and 46 of Mr. Leach's edition of the same book, 8th Modern, we have Lord Coningsby's case as two sepp,rate cases (No. 10 and No. 30), while in the two former editions the whole is reported as one. In the old editions, after giving us the first part of the case, in nearly the same words as Mr. Leach gives us his case No. 10, the report proceeds thus: "There was another cause in the Exchequer, in Trinity Term following, between the same persons, only in that cause the noble Lord was defendant, and by a rule of court, made on a Thurs- day in the said term, it was or- dered," &c. ; in Mr. Leach's edition this latter part is made a new case, detached, and put in another part of the book. 436 THE COMMON-LAW EEPOETEES. " probably contained the residue of the cases in that ' large manuscript volume ' referred to in the preface to Ridgeway's Hardwicke, from which the Ridgeway cases were published, and to which it is plain that several publishers had access." The work was published anonymously ; the author was Timothy Cunningham, a member of the Society of Gray's Inn, A. D. 1767. (Edns. : Fol., 1766 ; 2d, 1770 ; and 3d, 1871, 8vo.i This last edition is one of the beautiful reprints by Stevens & Haynes, already spoken of by me, of which Bellewe's Cases temp. Richard II., Cooke, and the Choyce Cases in Chancery, form companions. It is laboriously, and I presume well, edited by Thomas Townsend BuckniU, Esq., of the Middle Temple, the editor also of Cooke.) ANNALY'S HARDWICKE. K. B. 7 Geo. II.— 11 Geo. II. (1733-1737). This book, under the name of " Cases in the Time of Lord Hardwicke," was mentioned in 1776, by Dr. Calvert, in the Duchess of Kingston's Case,^ as " a book lately published, which," said he, " I am told is good authority, and the cases well and correctly taken." In the same case,^ the Attorney- General, Thurlow, spoke of it by the name of " Lord An- naly ; " * and it is frequently mentioned in the course of the argument with respect. It has received commendation from 1 An introductory chapter, en- and afterwards to the time of the titled " A proposal for rendering author. See 1 Hill's New York the Laws of England clear and cer- Reports, 396 and note, tain," gives the volume a degree of " 20 Howell's State Trials, 424. peculiar interest, independent of " 20 Howell's State Trials, 454. the value of many of the cases. A * John Gore, Esq., barrister-at- history is given of English report- law, became Chief Justice of the ers, beginning with the reporters of King's Bench in Ireland, and was the Year Books from 1 Edward III. made a peer of that kingdom, 1766, to 12 Henry VIII., near 200 years, as Baron Annaly. He was chosen annaly's hakdwicke. 437 one of Lord Hardwicke's biographers as presenting a very sufficient evidence of the extent of this great man's learning, and of the acuteness of his intellect ; though it is remarked that the arrangement and style is bad.^ The authorship of a book, which is so much more credit- able than many for which authorship has been claimed, has been a matter of some inquiry, but rests, I believe, quite unknown. Mr. Vernon, the editor of Andrews, states, in 1791, that he had examined the subject, but admits that he had not been able to discover by whom the cases were taken or compiled. He could only ascertain that Mr. Harward, barrister-at-law, and one of the persons to whom the author- ship has been ascribed, gave the MS., about the year 1768, to Mrs. Elizabeth Lynch, bookseller, in Dublin, and that Lord Annaly, to whom Mr. Harward had given a copy of the MS., had given the same lady an index which he had prepared for his own use ; but neither of those persons was the author, nor otherwise concerned in the publication than as just men- tioned. In addition to the name given at the head of this section, the work is known as Rep. temp. Hard. ; Cas. temp. Hard, by Lee ; ^ or Lee's Cas. temp. Hard.^ In this work, as in the two preceding, we have a record of the Chief Justiceship, at common law, of the Earl of Hard- wicke, afterwards so eminent as Chancellor. It has passed into common remark, that minds even of the highest order have not always manifested themselves with equal distinction in all departments of the same science, and it would be inter- esting to know what illustration of the sentiment is derived from the career of "a man so splendid as Lord Hardwicke. Lord Campbell* observes, that " he did not make his name Speaker of the House of Lords, and ^ Wilkinson on Replevin, 114. died in 1783, when the peerage be- ' Wilkinson on Replevin, 5. came extinct. (Burke.) * Lives of the Lord Chancellors 1 London Law Magazine, quoted and Keepers, vol. v. p. 33. in The American Jurist for April, 1841, vol. XXV. p. 17. 438 THE COMMON-LAW EEPOETEES. very distinguished by any considerable improvements in the system ^hich he here administered ; and subsequently exhib- ited greater powers when he had to expatiate in a new field." Opposed to this opinion is a sentiment said to have been ex- pressed by Lord Thurlow, that he thought the Earl of Hard- wicke more able as Chief Justice than as Chancellor ; ^ but I am not aware that Lord Thurlow in any one of the mani- fold times in which he had occasion to consider Lord Hard- wicke's equity decisions, anywhere recorded such a judgment. The volume contains some cases by Lord Chief Justice, Sir William Lee, and two equity cases by Lord Hardwicke. It must be distinguished from another book called " Cases temp. Hardwicke," and published in 1828, by Mr. West, from Lord Hardwicke's MSS., and which contains Chancery Cases from 1736 to 1739. (Edns. : Dublin, 8vo, 1769 ; Lond., foL, 1770 ; Lend., 8vo, 1815, by Thomas Lee.) WILLES. C. P., ES. CH., HOUSE OF LORDS. 8 Geo. II.— 33 Geo. II. (1737-1760). These Reports, though posthumous, are admitted to be highly authoritative. They appear to have been prepared by the Chief Justice himself, and were carefully revised by Mr. Durnford, their reputable editor.^ Willes and Wilson are probably the most authoritative Reports of the reign of George 11.^ While a student at All Saints, Oxford, the author, in 1714, published a pamphlet called " The Present Constitution and the Protestant Succession Vindicated," for which labor of loyalty and letters he was sent, in 1718, into Scotland, to * Lives of the Lord Chancellors ' 1 Bligh, New Series, 194. and Keepers, vol. v. p. 33 note. « 1 Kent's Commentaries, 488. WILLES. — ANDREWS. 439 assist in carrying on prosecutions against the " rebels." He was made Attorney-General in December, 1733, succeeding Sir Philip Yorke, then made Chief Justice of the King's Bench, and in January, 1737, Chief Justice of the Common Pleas. He died in 1761. Though a student of Oxford, and clearly devoted to conservative authority, he gives in his reported cases a fine illustration of judicial integrity and candor. Welles, an attorney of the Common Pleas, had been engaged in a disturbance at Oxford. Mr. Trahern, a proctor of the University, arrested him, and committed him to the jail of that place. The proctor being now sued, the University in- terposed, pleading in great form its time-honored privileges. Many cases were cited to show that the University alone had rightful cognizance of the suit. The matter, however, went off on another point. The Lord Chief Justice says : ^ — " I need not give my opinion of these cases, nor say how far I agree with them, till the matter comes judicially before us. But whenever it does, though I shall be as tender of the privileges of the University of Oxford as any man living, having the greatest veneration for that learned bodj', 3-et I hope I shall always, as far as I can b^' law, endeavor to support the common law of the land, and that excellent method of trial by juries upon which all our lives, liberties, and properties depend ; and that I shall endeavor, as far as I can, to prevent the encroachment of any jurisdiction whatever that proceeds by any other law and another method of trial." (Edns. : Fol., 1799 ; also in 8vo, 1800 ; and in the same form, in this country, 1802.) ANDREWS. K. B. 11 Geo. n.— 13 Geo. II. (1738-1740). Many of the cases contained in these Reports are ex rela- tione alterius, and are reported by Strange, and some in Cases 1 Willes, 240. 440 THE COMMON-LAW BEPOETEES. temp. Hardwicke. Andrews, however, says -Mr. Marvin,* has usually given a fuller and more satisfactory report than is found in other books embracing the same term, and his volume is affirmed to be " accurate, judicious, and satisfac- tory." Mr. Rayner, likewise, in his Readings on the Statutes, speaks of it " as very much esteemed by the profession in general."^ (Edns. : Fol., 1754 ; 2d, by Mr. G. W. Vernon, much im- proved, and with some additional cases, in an Appendix. Dublin, 1791.) . FOSTER. K. B. (CROWN SIDE). 16 Geo. II.— 1 Geo. III. (1743-1761). " As Mansfield wise, and as old 'Easier just! " Is a compliment of Churchill ; rather ambiguous, and iUus trating the pregnancy of language, as much as the full bu'th of grace. The integrity and fearlessness of Foster were cer- tainly invulnerable ; and Thurlow, referring to his judicial con- duct in a trial where one of the royal princesses was convicted, spoke of him as that " one English Judge whom nothing can tempt or frighten, — ready and able to hold up the laws of his country as a great shield of the rights of the people."* He was a man of fair ability ; of great knowledge in crimi- nal law ; a little obstinate, and sometimes, possibly, more subtle than sagacious ; "just, perhaps, rather than ' wise.' " The 1st edition of his Reports was printed at Oxford, with a beauty and correctness which drew forth Lord Hardwicke's admiration.* Besides the Reports, there is added in the vol- ume some discourses on certain branches of Crown Law. Their authority is high.^ A pirated reprhit of the book came 1 Legal Bibliography, tit. " An- * Dodson's Life of Foster, 47. drews." ^ Commonwealtli v. Roby, 12 ' Page 96. Pickering, 509 ; Commonwealth v. » Dodson's Life of Foster, 88. York, 9 Metcalf, 111, 132. FOSTEE. 441 out soon after in Ireland ; and at a later date, Foster's nephew, Michael Dodson, twice re-edited it, in the last in- stance, with an Appendix, containing some matters which, by the advice of Lord Mansfield and Lord Hardwicke,^ Fos- ter had himself suppressed. Among them was a dissenting opinion in Midwinter v. Sims. In an affectionate and charac- teristic letter to Foster, Lord Mansfield had spoken of it iu terms which illustrate its value, and, to some extent, the author's character also. " I very much wish," says the Earl, " that you would not enter your protest with posteritj' against the unanimous opinion of the other Judges, &c. If the determination was contrary to former authorities, there is no hurt in it. . . . The authorities which you cite prove strongly your position ; but they seem to be founded in subtle nicety and very literal interpretation, not upon the large principles which you lay down, — the doing justice to the public and adapting the punishment to the degree of guilt. . . . The construction of the majority is agreeable to justice ; and there- fore, suppose it wrong upon artificial reasonings of law, I think it better to leave the matter where it is. It is not dignus vindice nodus." Michael Foster was born in Wiltshire, December 16th, 1689 ; matriculated at Oxford, May 7th, 1705 ; and admitted to the Middle Temple, May 23d, 1707. He was more distin- guished by judgment than by eloquence^ and had not much success in London as an advocate. He afterwards removed to Bristol, of which city, in August, 1735, he was chosen Re- corder. He appears to have been a low churchman in relig- ion, and, in 1735, having previously taken some part against the more orthodox side, he published an attack of Bishop Gibson's Codex. The field was one, it is probable, in which he was net a match for the Bishop of London. On the 22d of April, 1745, at the recommendation of Lord Hardwioke, he was appointed to a judgeship of the King's Bench, having 1 Dodson's Life of Foster, 32 and 43. 442 THE COMMON-LAW REPOBTEES. been previously knighted. He died in office on the 7th November, 1763. (Edns. : 1st, folio, 1764, and Dublin, piratically, ; 2d, by Dodson, 8vo, in 1776 ; 3d, 8vo, with an Appendix, by the same person, 1796.) PARKER. EX. 16 Geo. II.— 7 Geo. III. (1743-1767). The cases embraced within the term just indicated were prepared by Sir Thomas Parker himself. But besides these, the volume contains, in an Appendix, some cases from 1678 to 1718. These, Sir Thomas says, were carefully transcribed from authentic MSS. The book is one of very good authority. (Edns. : Fol., 1776 ; 8vo, 1791.) WILSON. K. B., C. P., AND CH. Part I. — K. B. 16 Geo. II.— 27 Geo. II. (1743-1754). Parts II. and III. — G. P. 26 Geo. 11—15 Geo. IU. (1753-1775). In the first volume of Wilson are to be found twenty-eight Chancery cases, shortly reported, but clearly enough. Wilson's Reports embrace the time when Wilmot, C. J., was on the bench, and give us his judgments. They contain also cases in the time of Chief Justices Willes and De Grey. Being " very accurate repositories " of the decisions they report,^ they are of course interesting and authoritative. Some of Wilmot's decisions (from 1757-70) are foupd in a 1 1 Kent's Commentaries, 488. (1 Douglas, 42), where, on a case Chancellor Kent's estimate of Wil- being cited from Wilson, he said son's Reports, I believe, is just; "that the printed account (Wil- notwithstanding what appears to son's) of the case shows the danger have dropped from Lord Mansfield of inaccurate Reports." WILSON. — W. BLACKSTONE. 443 4to volume, called "Wilmot's Notes, published in 1802, and which contains decisions and opinions in the House of Lords, King's Bench, Common Pleas, and Exchequer Chamber. On a fly-leaf in a copy of Wilson's Reports, in the possession of Mr. F. F. Heard, of the Boston Bar, is the following manuscript note: — " The author of these Reports was one of his Majesty's counsel, and was well known to all the bench and the bar as one of the soundest and most learned lawyers, as well as one of the most hon- orable and well informed men at the English Bar. He was the son of a Mr. Wilson, who, having acquired a competent fortune in the "West Indies, returned to his own countrj^, and devoted the last thirty years of a long life to philosophy and literature. Vide Butler's Life, p. 442." (Edns. : There have been four editions of Wilson's Re- ports : 1770 and 1775 (in each case three parts being bound in 2 vols, folio) ; the 3d and best, in 3 vols. 8vo, 1779 ; a 4th, ^ublin, 1792.) W. BLACKSTONE. K. B., C. P., AND CH. 20 Geo. II.— 20 Geo. III. (1746-1780). Although these Reports were ordered by Sir William Blackstone's last will to be published, it has been generally thought that they were notes pour servir, rather than the completed Reports, which, had the elegant commentator's life been spared, would have been given to the profession. It is certain that while there has been no question as to the genuineness of the Reports, they have not been held in that estimation which the name of Sir Wm. Blackstone had a right to confer. "The Reports of Sir Wm. Blackstone," says Mr. Justice Lewis,! of New York, " though the production of an able 1 1 Johnson's Cases, 45. 444 THE COMMON-LAW BEPOETEES. Judge, are not of the highest authority. They are posthu- mous works, edited by his executor, who does not appear to have been a lawyer, and who has given them to the world without their having undergone the last revision intended by the author." Indeed, the bad reputation of Blackstone's Re- ports seems to have got even into France ; for, in speaking of them, Dupin ^ remarks : " Ses reports ne Jouissent pas de la mdme estime que ses autres ouvrages, et passent pour itre tres- inexacts." Lord Mansfield, in fact, said that they were " not very accurate ; " ^ and such, for many years, was the idolatry paid to everything which fell from the Earl's lips, that this dictum was enough to give them disrepute for at least a gen- eration afterwards. Of late, however, these Reports have been well re-edited, and appear to have been more esteemed. Indeed, it is worth noting that the report of the case of Bur- gess V. Wheate, which inspired Lord Mansfield's observation as to Blackstone's want of accuracy, was not taken by Sir William at all, but, as is stated in the preface to some editions of his Commentaries, was copied by him from one of Mr. Fazakerly. Indeed, on another occasion,^ Lord Mansfield relied on a case in Sir Wm. Blackstone's Reports as being a very correct report as compared even with a report of the same case by Serjeant Wilson. It cannot, indeed, be doubted that, so far as he did go. Sir Wm. Blackstone could not have been a bad reporter. The matter of Sir Wm. Blackstone's accuracy is the less important, as most of the cases in the King's Bench are reported in Burrow, and most of those in the Common Pleas by Wilson, — two of the best of all the English reporters. (Edns. : FoL, 2 vols. 1780; 8vo, 2 vols. 1781. The im- proved edition of Sir William Blackstone's Reports, just now referred to, is one by Mr. Elsley, and was published in 1828, 2 vols. 8vo.) ^ Profession d'Avooat, vol. ii. p. ^1 Douglas, 93 note. 375. 8 1 Douglas, 42. SAYER. — KBNYON. 445 SAYER. 25 Geo. U.—BO Geo. II. (1751-1756). " But an inaccurate reporter." ^ (Edns. : Fol., 1775 ; 8vo, Dublin, 1790.) KENYON. 26 Geo. H.— 1 Geo. ni. (1753-1760). These Reports, though posthumous, are from the genuine MSS. of Lord Kenyon, and having been printed by the con- sent of his successor in the title, were probably supposed to detract nothing from the first Lord's reputation. But there is no evidence that the Chief Justice himself ever designed them for the press ; and, like all reports published long after the time when the cases reported in them were decided, they are not much quoted. The only account I find of the work is by Mr. Townsend, the Recorder of Macclesfield .^ Speaking of Lord Kenyon's early professional life and of his intercourse with Mr. Dunning, he says that Kenyon's diligence often supplied Dunning with " cases for which he might otherwise have searched in vain, and furnished him, when immersed in business, with sound opinions." Mr. Dunning " in turn sup- plied memoranda of the arguments he had urged in banc, and the admirable judgments of Lord Mansfield. These our young lawyer carefully noted in his commonplace book, and contrived to amass a large collection of MSS., which were in general more full and complete than the Reports of Strange and Salkeld, and even Burrow, and to which he often re- ferred with satisfaction in his decisions on the bench." How- 1 1 Sugden on Vendors, 80. ' Lives of Twelve Judges, vol. i. p. 38. 446 THE COMMON-LAW EEPORTEES. ever made, the authority of Kenyon's MSS., even during his lifetime, was very considerable in Westminster Hall. In Doe V. Fonnerau,! after a case had been argued twice and decided, the Court of King's Bench, on the authority of a MS. of his, ordered it to be again argued, and reversed the former deci- sion. The work is in two volumes. 3d Kenyon is bound with vol. 2, separately paged and indexed. There is no title- page. It is called " Part II." in the index. In 9th Simons, 447, there is a reference to 3d Kenyon. The work was edited by Mr. Hanmer. (Edns. : 8vo, 1819-25.) ■WILMOT'S NOTES. 31 Geo. II.— 10 Geo. IH. (1757-1770). (Edns. : 4to, 1802. With a portrait engraved by Heath, but not in the best style of his burin.) BURROW. K. B. 30 Geo. H —12 Geo. III. (1756-1772). The Reports of Sir James Burrow make an epoch in the history of reporting. He made his Reports for the purpose of publishing them, but the system of term reporting not yet being established, he was not driven by the impatience of the bar to send them forth before he was satisfied with the form of them. There had been a few good reporters before him ; such were Plowden, Saunders, &c. But he, more than any man, seems to have perceived as a canon of the subject, — one indispensable, and never to be neglected or departed from, — 1 2 Douglas, 487. BTJEROW. 447 that every report, in the form in which it comes out at last for the bar, should be preceded by a Statement of the Case, and that that statement should be made by the reporter him- self, and be in a form separated from the opinion of the court ; that arguments, governed in their form of presentation by the contents of the opinion, should, as a general thing, follow, and that the opinion should come forth as opinion or judg- ment ON the case, without more restatement of facts or more recapitulation of argument than is indispensable to show to what the court is directing its observations ; in other words, that the reporter holds a high and responsible office, — one requiring to be filled by a lawyer who is not only attentive and careful, but one also learned and intelligent, capable of measuring the court and the bar, and that he is not a mere note-taker, copyist, or reader of proof. Sir James Burrow, as he tells us himself in the preface to his Reports, did not write short-hand. The opinions, the same preface shows, were not written by the court, nor ever printed in the exact form in which they were delivered. It is equally plain that they were not revised by the court. Sir James makes his " merits to consist in the correctness of the states of the case " and his report of the judgment. These are his own exclusively. But he nowhere professes to follow verbatim the opinions as delivered, and it is plain from the preface that the Earl of Mansfield left it to him to put his Lordship's opinions into the form that was requisite to make them the proper component of a report ; that is, to strike out unnecessary statement of fact and unnecessary pres- entation of counsel's argument, — statement and presentation very proper to have been in the opinion as delivered from the bench, months, perhaps, after the case had been brought up and argued, and when a considerable restatement of fact and representation of argument were necessary to show what the Earl was speaking about; but unnecessary, and therefore improper, to be stated or presented in the same 448 THE COMMON-LAW BEPOETEES. way when the reporter has, in the page or pages immediately- preceding, already presented them with, probably, more ful- ness and precision.^ The Reports of Burrow, therefore, give us in each suit three divisions: 1st. The case or statement of the facts, — whether the facts be in pais, or a statute, will, deed, or what not. 2d. Arguments of counsel on that case. 3d. The opinion or judgment of the court upon it ; — each of the parts being separate and pure, the statement or " case " being pure fact, the argument of counsel argument merely, the opinion of the court opinion simply on the case, with answer, perhaps, more or less full to the argument decided against, and an announcement of the judgment. This makes a full, formal, and correct report, and such as properly in- structs and enlightens the bar. And this is the form which Sir James generally adopts. But his own statement of the case at the beginning of the report, in a full, sequent, and unargumentative manner, — this sort of manner being one which a court, when it is left to state the case, rarely adopts in any perfection, — and which, if the case be a long, com- plicated, and difficult one to decide, and marked by incidents at all exciting, it becomes impossible for the Judge, who must make the judgment appear right, to attain to — that part of the report is what Sir James never fails to present for him- self ; and if he presented no report of argument at the bar at all, nor of any other part of the opinion than the judgment, we should have, in a majority of cases, an intelligible report. But presenting as he does, in the best manner but in his own way, arguments of counsel and the opinion of the court, that is to say, the grounds or reasons of the judgment, he gives us reports which make the perfection of the art.^ It ' See the Preface, pp. viii, ix, x. only that the case and judgment 2 "Let me, once for all," he and the outlines of the grounds or says, "caution the reader. . . . reasons of the decision are right." I pledge my credit and character (Page x of Preface.) BUEEOW. 449 is unnecessary to say that in reports thus made the court will, when it is in error, be shown by the mere statement of the case, as well as by the arguments, to have been so, which it never is shown to have been when the Judge who delivers the erroneous opinion has the stating of the case and the presentation of the argument against him wholly to himself. Burrow's Reports, therefore, may, in their department, fairly be called "works of art," — the reporter's work, the arguments of counsel upon it, and the superior labors of the court commenting and deciding upon both ; his statement of facts, the contest of the bar upon their effect, and the court's more valuable opinion upon all, being con-elates, not repetitions ; and the whole report — case, arguments, and opinion — going out to the bar separate in form as distinct in nature, each from the other ; each complete in itself, but having, one with all, exact and reciprocal adaptation, and pre- senting so a full, harmonious, but never redundant whole. ^ If the Court of King's Bench during the last years of the reign of George II. and the first of George III. were fortunate in their reporter, equally fortunate was the re- porter in his court. Beside the great Earl, there sat there in Burrow's time Sir Michael Foster, " one of the best crown lawyers," said Lord Kenyon, " who ever sat in West- minster Hall ; " 2 Sir John Eardley Wilmot, afterwards Chief Justice of the Common Pleas ; Sir Joseph Yates, Sir William Blackstone, Sir William Henry Ashhurst ; Lord Mansfield at 1 I took leave to express, in The dence, of February, 1865, vol. xviii. Legal Intelligencer, a local journal page 292; the London Jurist; and of Philadelphia, my opinions, in an the Solicitors' Journal. They were anonymous way, many years ago, copied also in the Upper Canada Law on what may be called " the prin- Journal, vol. x. p. 317, and vol. i. ciples of law reporting." I was New Series, pp. 92, 177. I have h^PPJi years afterwards, to see expressed them also, briefly, in the them copied and commended in preface to my Reports in the Su- three English Law Journals, one The preme Court of the United States. Law Magazine and Law Review, ' 1 Espinasse, 145. or. Quarterly Journal of Jurispru- 29 450 THE COMMON-LAW EEPOETEES. the head of all, and so completely the head of his court, that, during his long term of thirty years or more, the dignity of the tribunal was scarcely ever impaired by the expression of a difference of view between its members. Burrow's influence on the style of reporting, remained in England for many years. The Reports of Cowper, Douglas, Durnford & East^ — these last sometimes called The Term Reports — are on the same plan, more condensed and not so elaborate, but not less essentially good ; indeed, by some persons preferred, as less scholastic, technical, and particular. Much the same general sort of merit may be attributed to the successors of these last, — East, Maule & Selwyn, Barnewall & Alderson, and others. Of later times, by a departure from Sir James's plan, and referring the reader to the " opinion of the court " for the case, a slovenly style has frequently been exhibited. The result has been : — 1st. That there is no full, orderly, sequent, and unargu- mentative statement, nor indeed any statement whatever, at the beginning of the case. 2d. That the arguments of counsel being thus " in the air," — arguments on nothing stated, — are unintelligible, and soon come to be suppressed. 3d. That the opinion becomes the whole report, — a report seldom a good one, often very bad; its value as a report diminishing in the exact ratio of its excellence as an opinion or judgment. Of course, if the opinion given by the court is a written one, there should not be the least variation whatever between it as delivered and as reported, — so far as the opinion is truly opinion, and is not statement of the case or report of argu- ment. But when the Judge turns himself into reporter, and undertakes to perform the duties of that person, it is then 1 "Burrow, Douglas, Cooper, in England." (Lord Campbell, Durnford & East. The very best Lives of the Chief Justices, vol. ii. law Reports that have ever appeared p. 405, 5th ed.) BUREO-W. 451 that that person should, in presenting his report, relegate the Judge to his proper place, and confine the Judge's work to the judicial duty alone. Burrow was born in 1701, appointed Master of the Crown Office in 1724, holding the office till his death, a term of fifty-eight years. In addition to its emoluments, the office was valuable to him as reporter, by giving to him access to all the records of the court, civil as well as criminal, and a place immediately before and under the bench, where he heard, with particular advantage all that came from bar or court. He published, A.D. 1763, as we learn from Dr. Austin AUibone's invaluable Dictionary of Authors, " Anecdotes and Observations relating to Cromwell and his Family," 4to, and some other works. He died in 1782. Lord Campbell, Chief Justice of the Queen's Bench, is reported, in the English Law and Equity Reports,' to have said, in referring to a dictum reported by Burrow in Rex v. Wilkes,^ as uttered by Lord Mansfield, with which dictum the Queen's Bench did not agree : — "As Lord Mansfield himself has said, Sir James Burrows's [Burrow's] Reports were not alwaj's accurate." Lord Campbell is not presented as giving his authority for what Lord Mansfield had thus said. And as no such state- ment by the latter is known to me, I presume that Lord Campbell is more accurately reported in Ellis & Blackburn, where,^ referring to the dictum as given by Burrow, his Lord- ship is made to say : — " I may say of that, as Lord Mansfield himself said, when speak- ing of Sir W. Blackstone, that what is reported is not always ac- curate, and I very much doubt if Lord Mansfield ever did say what is contrary to all that is to be found in all the books." (Edns. : The editions of Burrow, I believe, are numerous. The best English one is the 5th, by the late Serjeant Hill, 1 Vol. XXX. p. 368, Eegina v. ' Vol iv. pp. 2527, 2551. Newton. » Vol. iv. p. 869. 452 THE COMMON-LAW BEPOETEES. 5 vols. 8vo, 1812. A good American edition was published in the same number of vols., at Philadelphia, in 1808 ; also an abridgment, in 2 vols., at New York, at a later day.) LOFFT. 12 Geo. IH.— 14 Geo. in. (1772-1774). Capel Lopft came down to our own day, dying so late as 1824. He was born in 1751, and called to the bar in 1775. He is known in several kinds of literature as well as in law. He published a great number of theological, political, poetical, astronomical, and other works, of which Dr. Allibone gives us a list. His name is found among the annotators of Shakspeare and Milton. "Almost all his works," however, says Dr. Allibone, speaking of those de- scribed above, " are now forgotten." His fame as a reporter is not higher than his fame in litera- ture, his Reports being confessedly a book of bad reputation.^ In the great case of Smith v. Earl of Jersey,^ Park, J., said in the House of Lords, when Lofft was cited, that, with- out forming any judgment of his own as to the merits of the book, he could only say, that in a professional life of forty years he had never heard it cited three times, and this not- withstanding the fact that the volume embraced a portion of Lord Mansfield's judicial life not covered by any other re- porter. Lofft's term was, however, a short one, — two years. He is the only reporter who repdrts the case of the negro Somerset, where it was decided that slaves cannot exist in England. Dr. Allibone therefore justly remarks that his work "is not without value." (Edns. : Fol., 1776 ; 8vo, 1790.) ^ Cooper's Bankrupt Law of America, pref. vii note; Bridgman's Legal Bibliography, 205. ^ 2 Broderip & Bingham, 536. CO WPEfi. — DOUGLAS. 453 COWPER. 14 Geo. III.— 18 Geo. III. (1774-1778). " A VERY accurate and valuable collection." ^ (Edns. : London, foL, 1783 ; 2d, 2 vols. 8vo, 1800 ; 3d, 2 vols. 8vo, Boston, 1809 ; 4th, New York, 2 vols, (in one) 8vo, 1833, by J. P. Hall.) DOUGLAS. ELECTION CASES. 15Ge6. III. (1775). Sylvester Douglas, afterwards the Eight Honorable Lord Glenbervie, the well-known author of the " Reports " in the King's Bench,^ was the authoi: of these volumes also, four in number. They are declared by Mr. Hargrave to be " a collection of excellent Reports on the law of parliamentary elections." (Edns. : 4 vols. 8vo ; 2d, 1802, 4 vols. 8vo.) ' See Allibone's Dictionary of pable ignorance, that without any Authors. authority on the subject one should In the 1st edition of Haywood's presume a blunder in reporting it. (North Carolina) Reports (vol. i. A note to the 2d edition, edited by p. 4), Judge Williams is made to Judge Battle, informs us that he say, that he never knew a case in has it from good authority that the Cowper received as law in this remark was never made use of. country. The remark, if ever it ^ See infra. was made, would betray such pal- THE CHANCERY REPORTERS. THE OHANCEBY REPORTEKS. It is scarcely necessary to remind the professional reader that a considerable number of Chancery decisions are found among the volumes generally classed with the Common-Law Reports. Thus, the Modern Reports, Ventris, Salkeld, For- tescue, Comyns, Fitzgibbon, Strange, Kelynge, Ridgeway, Blackstone, Kenyon, and other reporters prior to the reign of George III., all occasionally record cases in Equity ; just as, on the other hand, Peere Williams and other Chancery reporters sometimes preserve a note of decisions at Law. Gases in the Exchequer, also, and those in the Ecclesi- astical Courts, were formerly thrown in with the reports of decisions in the other courts. CHANCERY CALENDARS. ElCHARD II.— ElIZ- (13— TO 16—.) The title of this work is : " Calendars of the Proceedings in Gbancery in the Reign of Queen Elizabeth, to which are prefixed Examples of earlier Proceedings in that Court, namely, from the Reign of Richard II. to that of Queen Elizabeth, inclusive, from originals in the Tower. Printed by command of His Majesty King George IV., in pursuance of an Address of the House of Commons," &c., &c. 458 THE CHANCBEY KEPOETEES. I have already alluded in several places,^ as I also do specially in an Appendix, to the unpublished Reports which yet exist in different collections in England, and to the valuable services of the Record Commission, in arranging and in partially publishing them. In a juridical point of view, the most valuable of all these labors are those which have been directed towards illustrating the origin of equitable jurisprudence. There are before me three large folios, printed in 1827, and bearing the title already given. These volumes do not, of course, present a transcript of the multitudinous documents brought to light by the Commission. They are in this, as in other cases, rather an index for reference to the originals.^ You have, however, in nearly all cases, I believe, the names of the parties, the purpose of the bill, and a de- scription of the property. The form of the ecLuity pleadings in those early days, as well as in Elizabeth's, is presented to 1 See supra, "Preliminary Re- marks," §34, 1[ iv. ; also, pp. 43, 44, &c. ^ The Chancery Calendars of England, as printed, do not extend beyond the three folios mentioned; though two or three large volumes are given to the Irish Chancery. The commissioners thought that the superior interest of other and more ancient records did not justify the expenditure of additional money on this part of the subject. Some idea of the ' vast extent of it may be formed from this fact, asserted by them : that to present a mere calen- dar of the documents enrolled in the Chancery rolls alone, from the be- ginning of the reign of Eichard II. to the close of the reign of King Edward IV. (little more than two hundred years), would cost upward of twenty thousand pounds sterling. Yet those rolls are but a smaU part of the whole contents of the Record Office at the Tower, and are in a very low ratio, indeed, to the body of the national records. (General Report of the Commissioners to the King, 1837, p. xvii.) To have but raked these immensely voluminous records from " the caves and womby vaultages " where they had lain in the repose of centuries must have been an Augean work ; and we may be well contented even though they be only methodized and arranged, made clean, repaired, and bound, and put into such form as to be ac- cessible in any shape to the public. I may here mention that the Record Commission was allowed to expire in 1837 ; and that a Govern- ment Department was appointed in its stead, under the title of The Public Record Office. CHANCEKY CALENDAES. 459 you by examples of bills and petitions, at large, in each reign. The petitions in the reign of King Richard II. are very numerous. They are in the French language ; and we see from some of them that even in that early day the prac- tice prevailed for the plaintiff to find sureties to satisfy the defendant for his costs and damages in case of failure to prove the matter contained in the bill. " Some of the petitions," says Mr. Adams, in describing these calpndars,^ " appear to have been merely presented to the Chancellor, as the o£B.cial framer of ordinary writs, to obtain a suitable one for the plaintiff's case ; others, especially during the reigns of Edward IV., Henry VI., and Henry VIIL, are for a writ in the nature of a habeas corpus to have the complainant, released from an illegal imprisonment ; but in the majority of instances they appeal to the preroga- tive jurisdiction of the Chancellor, and pray, not that the wrong complained of -may be remedied at law, but that the Chancellor will examine the parties, and give appropriate redress. In many cases a special ground is alleged for calling on the Chancellor to exercise a jurisdiction, which would naturally fall within the province of the common-law courts. One of the grounds so alleged, and which strongly marks the character of the age, is the difficulty of obtaining justice by reason of the wealth and power of the wrong-doer. Thus in one case, it is said that the plaintiff cannot have any remedy at law in consequence of the defendant being sur- rounded by many men of his maintenance. In another, that the defendant is strong and abounding in riches, and a great maintainer of quarrels, and the complainant is poor, and hath not the means to sue for remedy at the common law. In a third, the relief is prayed, ' because your petitioners John and Catherine are so poor, and the said John so iU, that they cannot pursue the common law.' Of this sort of jurisdiction there are many instances, but in one case, towards the end of 1 Doctrine of Equity, xxxi. 460 THE CHANCEKY REPORTEES. Henry the Eighth's reign, the prayer is, that the petitioner, who had been restrained by injunction from proceeding at law, ' may be relieved from the prohibition, because he is a poor man, and unable to sue in the King's Court of Chancery.' ' The most frequent of these equities, especially in the latter years of Henry the Sixth, and in subsequent reigns, is for enforcing conveyances by feoffees in trust ; but many other ordinary equities occur. Thus, for example, we find a bill seeking to set aside a conveyance which the defendant had obtained by intoxicating the plaintiff j^ a bill by a tithe- owner to obtain payment for his tithes ; ^ a bill stating that the plaintiff had recovered her land at law, but that the defendant continued vexatiously to harass her, and seeking to have him restrained ; * a bill by an executor, stating that the defendant had by a trick obtained from him a general release, when he was ignorant of a debt due from the de- fendant to his testator, and intended the release to apply to other matters, and praying an injunction against setting it up at law as a discharge of that debt ; ^ a bUl against an executor for payment of his testator's debt ; ^ a bill to perpetuate testimony ; '' a bill for discovery of title-deeds ; ^ and a bill for specific performance of a contract.^ It must not, how- ever, be supposed, that in all the petitions to the Chancellor contained in these records the principles of modern equity were rigorously observed ; or even that it was the uniform practice to set out any special ground for interference. In many instances the doctrines of equity may be traced ; but 1 Goddard v. Ingepenne, 1 Chan- ^ Cobbethom v. Williams, 1 eery Calendars, viii ; Thomas v. Chancery Calendars, li. Wyse, Id. xiv; Bell v. Savage, Id. ' Vavasour u. Chadwiok, 1 Chau- xiv; Royal v. Garter, Id. cxxx. eery Calendars, xoiii. !* Stonehouse v. Stanshaw, 1 ' Earl of Oxford v. Tyrrell, 1 Chancery Calendars, xxix. Chancery Calendars, cxi. 3 Arkenden v. Starkey, 1 Chan- ^ Baker v. Parson, 2 Chancery eery Calendars, xxxv. Calendars, i. * Freeman v. Pontrell, 1 Chan- ^ Tyngelden v. Wai-ham, 2 Chan- cery Calendars, xlii. eery Calendars, liv. CHANCERY CALENDARS. 461 there are many others, where the complaints made are merely of violent assaults, or of other wrongs which might apparently have been redressed at law. And we sometimes find the jurisdiction resisted on that ground. Thus, for example, in one of the cases already referred to, the bill, after mentioning the subtraction of the plaintiff's tithes, complains also that the defendant had violently driven away his sheep, and the defendant, after answering the former charge, says, with reference to the latter, ' that the same is determined at the common law ; wherefore he understands not that the King's Court of his Chancery in this case will have knowledge ; nevertheless, for declaration of the matter to you, my Lord Chancellor, the defendant saith, that he never took nor drove away any sheep of the said complainant.' And in a subse- quent case we find the defendant alleging that some of the matter contained in the bill is ' matter triable at the common law, by action of trespass or false imprisonment, the which matter ought not, by the King's law of this land, to be determined in this court ; ' and that other matters in the bill alleged are, in like manner, determinable at the common law, by assize of novel disseisin, and by writ of dower : 'nevertheless,' he goes on to say, 'for the truth and plain- ness of the matter, he denies having done the acts complained of.' " 1 It would appear from these volumes that it has been in the law as in some other sciences, and that while our age has thought that with it was born all knowledge, we have, in truth, been left in the rear by times which we regard as buried in superstition and darkness. The whole structure of equity has been supposed by many writers to be founded on uses of lands, and to have had but imperfect foundation prior to the time of Elizabeth. These records show that, far from such restricted action, the Chancellors were giving ^ Arkenden v. Starkey, 1 Chancery Calendars, xxxv ; Harry v. Lyngeyn, Id. xlix. 462 THE CHANCERY KEPOETEES. regular and constant relief in regard to all sorts and kinds of equitable subjects, and many not equitable, perhaps, at all, centuries before Elizabeth was born ; in the times of Eichard II., of the 5th and 6th Henrys, and Edward IV. ; while they show also that there were fewer instances of application to the Chancellor for relief on subjects connected with the " uses " of land during the first four or five reigns after the equitable jurisdiction of the court was fully estab- lished than there were upon other subjects, — the majority of the ancient petitions appearing to be, as I have signified, in consequence of assaults and trespasses which were cog- nizable at common law, but for which the party complaining was unable to obtain redress in consequence of the mainte- nance or protection afforded to him by some powerful baron ; or by the sheriff or other officer of the county in which they occurred. These, however, belong more to the early than to the late records ; and as we come to the close of the series we have the marks of a more proper but still very wide equitable jurisdiction. " When we advert to the vari- ous objects of these bills," says Mr. Binney,^ referring to those which preceded the Statute of Charitable Uses, 22d Elizabeth, " we may imagine ourselves to be reading a Chancery calendar of the present day ; in which parties, in some cases, with no definite or particular interest, legal or equitable, ask for the supply of new trustees, for the redress of abuses, for a decree to enforce a charge upon land, or to change the investment of a charity, — in behalf of the poor, of schools, of churches, of hospitals : . . . injunction bills, bills of revivor, cross-bills ; the full action of equity in all respects." In truth, though Judge Story, and probably other writers from whom he copied, have spoken of Lord Notting- ham and his successors as having brought Equity into a science by enlarging its bounds and increasing its scope of action, any one who studies these records will see that the ' Argument in Vidal v. The Citj of Philadelphia, 104. OHANCEKY CALENDARS. 463 services of 'the great Father of Equity, and of those who immediately succeeded him, consisted much less in such action than in settling the boundaries of the system, defining its powers, restraining its extravagances, and by bringing the whole into proper relations, having made it the intelligent companion instead of the arbitrary mistress or the aspiring ' rival of the Common Law. The value of these Proceedings in Chancery in disclosing the foundations of equitable juris- prudence has been frequently noted by the profession ; ^ and the work was cited and relied on, in 1844, by Mr. Binney in the Supreme Court of the United States, in the Girard College case (Vidal v. The City of Philadelphia 2), a suit of vast mag- nitude every way, and which was pretty much determined by this citation. " Mr. Binney," said Mr. Webster to me, after that gentleman's argument was concluded, " has buried me under those three big folios. I suppose that T am to answer them." He answered them in the only way in which they could be answered ; that is, by showing that Girard's infidel college — as it would have been, had this miserable French- man's will been carried out by the city of Philadelphia in the spirit of the testator, as inferable from his own life, opinions, and character — was no charity at all.^ I have already remarked how much less correct the early Chancery ' The Queen !>. Millis, 10 Clark & to make him sell. The jury were Finnelly, 637, 638 ; Seaton's Equity touched in the right place, and gave Forms, v; Adams's Doctrine of heavy damages as " smart money." Equity, xxx. The pressure of Webster's an- 2 2 Howard's S. C. 196. swer was fully felt by Mr. Binney, ^ A miserable Frenchman he cer- who said to me, I remember, on the tainly was, notwithstanding Mr. evening of that day when he had Binney's eulogy upon some of his crowned his great professional ca- virtues. And nobody knew it bet- reer by his argument in this case: ter than, or as well as, Mr. Binney, " What would I have given if he who had sued him for an audacious had only begun his will, ' In the violation of law in blocking up the name of God, Amen.' But there way of a poor man to his farm ad- is nothing; nothing whatever. How- joining one of Girard's own, and ever, I am not afraid of the result which Girard meant by this means now." 464 THE CHANCERY REPORTERS. reporters are, than even those at Common Law.^ It is on account of this incorrectness of the ordinary reporters that these Proceedings in Chancery are especially valuable. Giving to us, as they do, the pleadings (at large, in many cases, and the power, in others, to refer to them), we have the best sort of reports, — " the forms of the law, being the indices and conservatories of its principles." ^ A few cases from this ancient repertory of Equity Ju- risprudence may interest the curious reader. Here they are : — In the reign of Richard the Second, Robert Briddicote complains : — " That, as he was going along in the peace of God and of our Lord the King, the Saturday next after the Feast of St. Barnabas, on the highway, on the other side of the town of Brentford, alone on foot, on a message to carry to Mrs. de Besiles, near Oxford, there the said John, with divers persons unknown, all on horse- back, met the said suppliant thus alone without defence, and on him the said John cried with a loud voice, in English, ' Slee, She the thefe ! Shots, Shots ths thefe ! ' by force of which cry the people there being, surrounded the said suppliant in great num- bers, and some of them bent their bows, and some drew then swords and daggers to kill the said suppliant. Whereupon, among others, a servant of the said John Forster shot the said suppliant with an arrow through all his cloathes into his arm, and thereupon he commanded the said servant to cut off his head, and the strangers there would not suffer him : whereupon the said John Forster took a bow-string, and threw it into the water, and then tied both his hands so tightly that the blood gushed out of his fingers, and so led him as a thief to the town of Brentford, and there in the presence of divers persons he would have killed him with his dagger, if it had not been for certain Esquires of my Lord the Duke of York, when the said suppliant had no other expectation than that of his death," &c. 1 Supra, " Preliminary Remarks," § 18, p. 22. 2 Gibson, C. J., 1 Wharton, 71. CHANCEEY CALENDARS. 465 In the reign of Henry the Sixth, a man complains that he had been grievously prosecuted in the Sheriff's Court at the suit of Richard Rede, who had slandered him, in saying that he had taken his wife and his goods : — " The whiche forseid Eiehard now late cam to one Elene Faux, and would have yeven her a goun cloth, with that she wolde have assented to be a bawde betweene Katerina his Wiff and me the seid John Westowe. Furthermore the seid Richard yaf counsel, and excited in all that he cowde or might to his wif for to be a strum- pet, beheting xx.'s with that she wolde assente and suffere the said John "Westmore to lye by here, to thentent to take hym and here togeder, aud to ransom him. Also the seid Richard be hoote to oon Sire John Person preest, that if he wolde recorde afore a jugge, with the seid Richard, that the seid Katerine were founden in a taverne with the seid John Westowe, he wolde geve the seid Sire John a noble," &c. In the reign of Edward the Fourth, Sr Waultier Howard, Prest, prays : — " That whereas he, accordyng to natural! reason and lawe, was syttyng and drynkyng with his oune suster in an honest hous within the Cite of London, yet dyvers personez maliciously disposed towards yor said oratour entered into the said hous, surmysyng that the said woman shuld not be his sister, and there made assaulte uppon hj^m, and hym ther toke, bette, and sore wounded, and from thens carried yor said oratour to the Compter," &c. In the reign of Henry the Sixth, we have a bill filed by Rob- ert Burton, a Roman Catholic priest, against several defend- ants, who were followers of Wyckliff, on account of various outrages committed against the plaintiff, in consequence — as he sai/s, though Protestants, of course, will not believe him — of his opposition to the doctrines of this reformer. The bill is in old French, which has been modernized by a translation, as follows, — not after all, perhaps, the most lucid as respects the arrangement of its members : — 30 466 THE CHANCERY EEPORTERS. " To the very reverend father in God, the Bishop of Bath and Wells, Chancellor of England. " Humbly- beseecheth j-our chaplain and orator, Robert Burton, Clerk, chanter of the Cathedral Church of our Ladj' of Lincoln : "That, whereas, Richard, late Bishop of Lincoln, heretofore made a Commission, directed to the said suppliant and others, commanding them to inquire of all manner of heresies within the Citj' of Lincoln, and in the parts nearest to the said city ; and to punish all those that were convicted in such case before them, according to the Law of Holy Church, even to perpetual imprison- ment : By force of which commission, one brother, Robert Sutton, formerly of the aforesaid city, was convicted before the said com- missioners of divers grievous and horrible heresies, contained in a schedule to this bill annexed : and a book formerly in the posses- sion of the said Robert Sutton, written in English, of divers erro- neous conclusions of the gi-eat heretick Wyckliff, was burnt, and the said Robert punished as the Law of Holy Church required : " And, WHEREAS, after the execution of the said commission, one Walter Yerburgh, of the City of Lincoln ; William Hert, of the same city, and many others, rebels to God and Holy Church, — who for a long time have used from j-ear to year, at the Feast of Easter, to be threatened, without any confession made but openly despising to be confessed, according to that which the decretal ' omnis utriusque sexus,' &c., requires ; and not having caused their curates to have notice by sufficient witnesses, as the constitution of ' Peccamus, Altissime, de terra ' wills, and in this requires : "Now the aforesaid Walter and William, — considering that the aforesaid suppliant before this time, as well in open sermons as privily between themselves, had exhorted them, and excited such others to relinquish such bad customs and governances against the Law of Holy Church, and in this behalf to use and hold the certain, and quit the uncertain ; and also that the said suppliant had before condemned the said heresies by force of the said commission (the which heresies are the original cause of the said misgovernances), by false alliance made between them, of their malice prepense, — proposing to destroy the said suppliant of his good name, his goods and his person, by verj^ great and horrible slanders and defamations. Have procured the said suppliant and divers of his servants and tenants, to be falsely indicted of treason, felonj-, rape, extortion, and trespass, and have imprisoned and many times men- ACTA CANCELLAEIJE. 467 aced the said suppliant of his life and limbs, and, together with many other misdoers assembled with them from day to day, have lain in wait at Lincoln aforesaid, and elsewhere, to kill and murder the said suppliant: Insomuch that the said suppliant durst not remain in his residence at Lincoln aforesaid, nor go openly about to do his business, for fear of death and mutilation of his limbs : — and other great grievances and offences to the said suppliant, have done in contempt of our Lord the King, and to the great damage of the said suppliant, as in another schedule to this biH annexed is contained : " May it please your Very Eeverend Fatherhood to consider the premises, and thereupon to grant to the said suppliant several writs directed to the said Walter and William, commanding them to appear before you on a certain day under a certain penalty by you limited, to be, examined of and upon the premises, and to justify themselves, and moreover to provide for the said suppliant due and convenient remedy for the misdeeds and grievances afore- said, as right and reason demand, according to your sage discretion, for [the love of] God and in work of charity." ACTA CANCELLARI-^. 36 Hen. VIII.— 1 Car. L (1545-1625). I HAVE already remarked that no species of report can be so authoritative a memorial of what was done in court as the record itself. This is monumental evidence, and depends not upon the faithfulness of memory or of conception, but merely on the accuracy of transcript. It is on this ac- count that I here insert among the Chancery reports this recently published volume by Cecil Monro, Esquire, one of the Registrars of the Court of Chancery. The volume, of about eight hundred pages, contains two parts. 1st. Ex- tracts from the Master's Reports, and certificates during the reigns of Queen Elizabeth and King James I. 2d. lixtracts from the Registrar's books, from 1545 to the end of the reign of Queen Elizabeth. It is a work more curious, per- 468 THE CHANCERY KBPOETEES. haps, than now practically useful ; though, undoubtedly, the extracts are judiciously made, and the annotations upon them give proof at once of capacity and learning. It serves to illustrate some of the reports in the Choyce Cases, Tothill, and Gary ; and the 2d part, especially, to give pre- cision and completeness to the early history of Chancery jurisdiction and practice. The vrork is interesting, also, in respect of more general history. In Part I., from page 131 to page 149, — the editor remarks, — will be found some papers connected with the family of Richard Hooker, author of the immortal " Laws of Ecclesiastical Polity," four docu- ments (p. 176) relating to a Chancery suit, in which Sir "Walter Raleigh was involved during his imprisonment in the Tower, and which contain some curious circumstances con- nected with that extraordinary man. Two papers (at page 221) attest the existence of a William Shakspeare, not the poet, but certainly a connection and contemporary, an indif- ferent character from his youth up, and who may have been the real actor in some of the excesses now popularly attrib- uted to his great namesake ; and at page 68, an omission in the pedigree of General Washington, as given by Baker, in his History of Northamptonshire, and copied by some Amer- ican biographers in their Life of Washington, has been cor- rected. A collateral ancestor of the President, it appears, was a Registrar of the Court of Chancery.* In Part II. are numerous contempt orders, which seem to point at a very disturbed state of society. Mr. Monro, whom I had the pleasure to see in London in 1850, told me that he had the materials ready for continuing this book down to the time of the Restoration. A want of patronage has probably prevented the publication of them ; a matter to be regretted, and not creditable either to the bar or government of England. ' See supra, pp. 365, 366. CABY. 469 GARY. 5 Mary— 2 Jac. I. (1557-1604). Caet was rather the editor than author of this little book, which is stated to be collected out of the labors of Mr. William Lambert. Two editions, one printed in 1650, the other in 1665, are both alike, except in the paging, which is different. A third edition was printed in 1820, and re- printed in 1872 in 12mo. All of the editions are in 12mo. " In Gary," says Mr. C. P. Cooper, " are numerous and sometimes interesting decisions of Lord EUesmere ; " and Mr. Cooper dates the regular series of Chancery Reports as commencing with Gary and Tothill.^ As a matter of curi- osity, rather than of practical interest, I annex a sketch of the author from Mr. Monro's Acta Gancellarise.^ Sir George Carew was author of Gary's Reports, which he collected out of the labors of Master William Lambert (Lambard), himself also a Master. It may be observed, in passing, that the cases in Gary's Reports are very often mere verbal transcripts from the Registrar's books. The Reporter had been Secretary to Lord Chancellor Hatton, and was knighted by Queen Elizabeth., In 1597, being then a Master in Chancery, he was sent ambassador to Poland. In the next reign he was one of the commissioners for treating with the Scotch about a union between the king- doms ; after which he held the post of ambassador to France from A.D. 1605 to A.D. 1609. On his return from France he was appointed Master of the Court of Wards, and he ap- pears to have died early in 1613. Whilst abroad he formed a friendship with the historian De Thou, and was much esteemed by him. Sir George Carew was a nephew of Sir Matthew Carew, and brother to Richard Carew, author of f ^ Cooper's Reports temp. Lord Cottenham, xovii. 2 Page 29. 470 THE CHANCERY BEPORTEES, the Survey of Cornwall.^ Dr. Kennett says that Sir George dwelt in Carew House, Tuthill Street, in Westminster, and dying there, was buried in the middle chancel of the Parish Church of St. Margaret.^ Dr. Birch ^ speaks in the highest terms of a work of Sir George Carew, entitled " A Eelation of the State of France," as " a model upon which ambas- sadors may form and digest their notions and representa- tions." CHOYCE CASES IN CHANCERY. 5 Mary— 4 Jac. I. (1557-1606). These cases form the last seventy pages of a little volume called " The Practice of the High Court of Chancery, Un- folded, with the Nature of the several Offices belonging to that Court, and the Reports of many Cases wherein relief hath been there had, and where denied." It seems to be a very good little book so far as it goes, though in that part which treats of the Practice of the Court it is now anti- quated, and in the part which gives reports is very quaint and short, though quite clear and intelligent.* Like Lam- bard, Tothill, and a few similar works, this volume is one which those great cases that occur from time to time, and stimulate inquirj' into the very foundations of legal science, will occasionally call forth, and it ought, therefore, to be in every public law library. But, like the books already just 1 See Dr. Birch's " View of Ne- date 1652, in which " The Practice gotiations between England, France, Unfolded" ends at p. 100. There and Brussels," Introduction, p. xvi. is then a break in the paging, 2 See Lansdowne MSS. No. 983, " Choyce Cases " beginning at 113, fol. 199, 203. and ending at p. 188. In the 1672 8 Introduction, xvi, and Life of edition the " Choyce Cases " begin Prince Henry, 104. at p. 105, and end at p. 180. The * There are two editions of edition of 1672 was reprinted in "Choyce Cases;" the first bearing 1870, 8vo. CHOYCE CASES IN CHANCERY. 471 named, and a. good many others which I speak of among the Reporters, it is of very little practical value in ordinary Chancery Practice. I extract a few of these " choyce cases." They can be, as I have said, of no practical use ; but there is a picturesqueness and dramatic interest about them, especially as seen by the half lights in which, sitting so far off, we, here and at this time of day, necessarily view them, that makes them quite entertaining, and, indeed, as an exhibition of Elizabethan habits, manners, and peculiarities, quite instructive. 1. "The sheriff upon an attachment returned Gepi corpus et languidus in prisona. Whereupon a duces tecum was awarded ; and thereupon the sheriff returned adhuc languidus. Forasmuch as Walter Williams made an oath that defendant neither at the time of the return nor now is so sick but that he goeth abroad, therefore the sheriff is amerced £5 for his false return. Arnold., plaintiff ; Roberts, defendant. Ann. 19, 20 Eliz. 2. " John Rogers made oath he left a note of the defendant's appearance at Master Blake's house in Ej^nam, Hampshire, where the defendant most abiding is ; and hath hanged the writ on the door for a certain space ; and after carried the writ to Agness Hide's house, and hanged it upon the door, she then being within the said house ; who hath not appeared. Therefore several attach- ments. Hide, plaintiff; Martin and Agnes, defendants. Anno 20 Miz. 3. " Mantel, one of the defendants, maketh oath that his wife hath a j'oung child sucking upon her, without whom he cannot directly answer. And that the other defendant is an infant under the age of 21 years. Therefore they are respited for answer until Trinity Term next. Dale, plaintiff; Mantel uxor, ejus and Dale, defendants. Anno 21 Uliz. 4. " The defendant, b}'^ order of court, was to make a perfect answer upon oath, if he were of safe memorj- ; if he were not, without oath. The defendant made answer without oath by his prochain amie, and moved by Master Egerton, that he was not in sufficient case to malie an answer upon oath. Therefore ordered that Master Waldron, one of the Masters of this Court, shall go to him to see if he be in sufficient state to make answer upon oath 472 THE CHANCERY EEPORTEES. or no ; and to certify the court. Osley, plaintiff; Morgan, defend- ant. Anno 21 Eliz. 5. "The defendant demurred upon the plaintiflfs bill, for that she supposed she was a feme covert, and her husband living in Barbary. But for that it was informed on the plaintiffs behalf that the defendant's husband was burnt in a ship in Barbary two j-ears since, and she, understanding thereof, hath since dealt as a feme sole, therefore ordered the defendant shall answer. And if it shall hereafter appear by good proof to the court that the husband is in life, then it is ordered by assent all proceedings shall be void. Wright and uxor., plaintiffs ; Margaret Ralph, de- fendant. Anno 21 Eliz. 6 " The defendant being both senseless and dumb, ordered that no attachment shall go out against him. But after, upon information that he is come to his senses, a commission is awarded to some discreet commissioners to take his answer. Altham, plaintiff; Smith, defendant. Ann. 21, 22 Eliz. 7. " The plaintiff, after the defendants' answer put in was excommunicate, notwithstanding the plaintiff replied, and served the defendants to rejoin ; who by way of rejoinder pleaded the excommunication, and showed a certificate thereof. And yet the plaintiff proceeded and took out a commission to examine wit- nesses. And ordered that all proceedings by replication and commission since the excommunication is void, and shall be sup- pressed, and no further proceedings until the plaintiff bring and show forth letters of absolution. Hohhes, plaintiff; Hobbes and GhurchhiU., defendants, ^nno 22 Eliz. 8. " The defendant knoweth no such Thomas as is named for the plaintiff, nor the town where he is named to be dwelling, and the same defendant and his two brethren were likewise served at the suit of one Thomas Vaughan, whereas none of them knew any such man, but suppose the process was procured against them for vexation, by Mathew ap Richard, and Charles ap Eichard, who are now in town. Therefore ordered" that the Warden of the Fleet shall warn the parties to be in court to-morrow morning to answer the premises, and then further order. Thomas Vaughan, plaintiff; William, defendant. Anno 22 Eliz. (The case then continues.) Ap Richard served a subpoena in the plaintiffs name where there is no such party ; therefore an attachment against ap Richard. Jones, plaintiff. Anno 22 Eliz. CHOYCE CASES IN CHANCEEY. 473 9. " The defendants moved by Master Warberton to have the cause dismissed into the County Palatine of Chester ; where the defendants dwell, and the matter riseth. But because the plaintiff is one of the Yeomen of the Guard, and to be necessary here attend- ing, therefore retained. Kent and uxor., plaintiff; Hadock and Young, defendants. Anno 24 Eliz. 10. " The suit was on the behalf of the parishioners, as well rich as •poor, for and concerning the yearly alms or distribution supposed to be due by the parson of the said parish, of a rye-loaf, and a red herring to every parishioner on Saint Andrew's eve. But that it appears by a record in the Exchequer, setting down the value of the said parsonage, that there is.l3«. 4rf. yearly to be distributed in victuals at the same time to the poor of that Parish, but not to the gentlemen and men of ability ; and for that the defendant offered to give yearly 26s. 8d. in lieu of the said 13s. id. to the poor of the said parish, who stand in need thereof. Therefore day is given to the plaintiffs to show cause why they should not accept thereof, or be dismissed. And after assent, 40s. a year was decreed yearly to the poor. Elmer and Smith, Ghurch Wardens of Northwould, in the Qounty of Norfolk, plaintiffs ; Scot, Parson of the same town, defend- ant. Anno 24 Eliz. 11. " The plaintiff put in a replication of two skins of parch- ment of frivolous matter, and not fit to be rejoined unto, of purpose to put the defendant to unnecessary charges, and therefore Master Godfrey being of counsel with the defendants, desired his client might not be compelled to put in a rejoinder, but that they may go to commission with the same, and ordered accordingly. Harrison, plaintiff ; Lane and uxor. , defendants. Anno 24 Eliz. 12. " The defendant showed a certificate under the seal of the University of Oxford, whereby it appeareth that he is a cook of Corpus Christi College, and ought not, by the privilege of the said university, to answer any cause out of the same university for any matter or cause, except it be for felony, mayhem, or franck-tene- ment; therefore ordered that the defendant showing the privilege by way of demurrer upon his oath, be dismissed. But afterwards, upon information that the bill was for franck-tenement, the matter is returned ; but after, because it was under 40s. per annum, it was dismissed. John Jate, plaintiff ; Daniel Alleter, alias Christian, defendant. Anno 25 Eliz. 13. " John Guest maketh oath that he served a subpoena on 474 THE CHANCEEY EBPOETEES. the defendant, and two of his men or tenants, and the defendant did beat him with a staif, and struck out two of his teeth, and hurt him in the face in divers places. Therefore, an attachment is awarded against the defendant. Cfiles, plaintiff; Laekington, de- fendant. Anno 26 Eliz." Many cases in the Choj'ce Cases are found in a form nearly identical in Gary ; both taken, it is probable, from the same source of Master Lambard's MSS. (Edns. : 1652 ; 2d, 24mo, 1672. The volume was formerly very rare, but it was exquisitely reprinted in 1870, by Messrs. Stevens & Haynes, making a companion to their series of re- prints of early reporters, — editions de litxe they are truly to be called, — of which Bellewe's Cases tempore Richard II., already spoken at large by us on page 114, and the Reports of Cooke and Cunningham, also mentioned on preceding pages, make a part.) TOTHILL. 1 Eliz.— 22 Car. I. (1559-1646). This book contains two distinct works of Tothill, one called Transactions, and the other Proceedings, in the High Court of Chancery ; both were published after Tothill's death. In arguing the case of King v. Baldwin,^ Mr. Aaron Bun- relied upon the work ; but Chancellor Kent spoke of the re- port as " so Tery imperfect, and so destitute of facts and cir- cumstances, as to be altogether unfit to serve as a guide, and unworthy to be cited as an authority." And after showing that Tothill had misunderstood two cases cited in his report, remarks : " This explanation of two cases is sufficient to show what little reliance is to be placed upon the loose notes of Tothill, which were collected and alphabetically arranged by 1 2 Johnson's Chancery, 556. TOTHILL. 475 him, in the shape of an index, and published after his death." " Indeed," says Mr. Green, " any one who examines the book will see that the author never intended it for more than an index. It is less elaborate and less accurate than the MSS. Tab. so often referred to by Viner as Lord Harcourt's,^ and I have observed that while Mr. Hargrave and Mr. Fonblanque often refer to Tothill, to illustrate the history of the law, they seldom do so to establish any controverted position, especially a position of a nice character." In the point of view here last presented, however, — historical illustration, — Tothill, like several of the early Chancery reporters, is frequently interest- ing, as showing in a positive and plainly authentic form the rudimentary shape of the present developed — not to call it over-developed — Chancery system of England ; and a? illus- trating, by instances, that singular constitution of jurispru- dence peculiar to Great Britain and the United States of America, by which a copious, precise, and most artificial sys- tem of law is spun out, gradually, from a small expression of natural justice, and with scrupulous respect for existing law, by the safe and constantly improving process of Judicial In- terpretation. In this little and not much valued reporter there is, for example, under the date of James I., the following short entry : — Fleshwakd v. Jackson. " Money is given to a feme covert for her maintenance, because her husband is an unthrift. The husband pretends the money to be his. But the court ordered the money to be at her disposal." Yet from this embryo has sprung, in the course of two cen- turies, a whole system of jurisprudence ; one which, in this day, exhausts treatises of text, and fills volumes with deci- sions.2 In fact, the little case in Tothill has served for the 1 Now published in the Index to * See The Quarterly Review, vol. vol. viii. Brown's Cases in Parlia- ex., page 122, from which the illus- ment. London, 1803, 2d edition. tration is derived. 476 THE CHANCEEY EEPOETEES. base of an immensely ramified work, — one no less than the protective system of the property of women and children. From four lines, a new and most interesting species of property has been created and moulded ; and by principles which are involved in them, it' is now protected, controlled, and adminis- tered, not only throughout England, but over the vast extent of the United States of America also. (Edns. : 1649 and 1671. The first and second editions speak of the cases as " reviewed by Sir Ro: Holborne." The reprints of 1820 and 1872 have " Sir R. O. Holborne " on the titlepage. AH the editions are in 12mo.) DICKENS. 2 Eliz.— 38 Geo. III. (1559-1798). Me. Dickens was for some time Register of the Court of Chancery, and, according to Lord Redesdale, a very atten- tive and diligent register. Lord Eldon, too, bears an honor- able testimony to his " great knowledge of the practice " of the court, "from his long experience " in it.^ These Reports, how- ever, were prepared after his death, by Mr. Wyatt, from Dick- ens's notes ; " and these," says Lord Redesdale, "-being rather loose, were not considered as of very high authority. He was constantly applied to, to know if he had anything on such and such subjects, in his notes ; but if he had, the Register's books were always referred to." ^ On the other hand. Lord Cottenham, while he admitted ^ that "much, no doubt, might be said against the accuracy of many of the reports in Dickens," observed, also, " that there are many of 1 19 Vesey, 153. 21 ; 20 Law Times, New Series, ' 1 Schoales & Lefroy, 240 ; and 59. see Id. 259; 3 Mylne & Craig, 419- » 2 Phillips, 240; see also 19 Vesey, 152. DICKENS. — REPORTS IN CHANCERY. 477 them in which he himself interfered, and made suggestions to the court ; " and adds, " I have always considered these cases of higher authority than the rest, because you have there an opportunity of seeing what was suggested by a very experienced officer, and what the court did in consequence." And there are a few cases where the reporter gives copies ot written judgments filed by the Chancellors, as of Lord Thur- low's in Scott V. Tyler.i These cases, of course, are valu- able. (Edns. : 8vo, 2 vols. 1803.) DUKE'S CHARITABLE USES. 41 Eliz.— 21 Car. II. This is in part a book of Reports. See the first edition, pp. 32-34, 41-54, 62-75, in which several places there are cases from MSS., mixed with others, taken from printed books. (Edns. : 1676 ; another, in 1805, by R. W. Bridgman.) REPORTS IN CHANCERY. 13 Jag. I.— 11 Anne (1615-1712). In 1736 was published a folio volume in three parts (each with new paging) of the work now known as Chancery He- ports. The title, which, to prevent confusion with Chancery Oases, it may be well to quote, is thus : " Reports of Cases, taken and adjudged in the Court of Chancery, in the reign of King Charles I., Charles II., James II., William III., and Queen Anne. It is styled, the 3d edition, * 2 Dickens, 712; and see 7 Vesey, 159 note c. 478 THE CHANCERY REPOETEKS. This book is in a line of succession from certain precedent works, now merged in it ; one of which, I suspect, Lord Camp- bell mentions, without perhaps being aware of the fact that he was referring, substantially, to the 2d volume of the Chan- cery Reports. Let me, therefore, subject to correction of error, state what I suppose to be the history of the editions of the Chancery Reports. The 1st volume of the first edition appeared in 1693. The title reads thus : " Reports of Cases taken and adjudged in the Court of Chancery, in the reign of King Charles I., and to the 20th year of King Charles II. ; being special cases, and most of them decreed with the assistance of the Judges, and all of them referring to the Register's books, wherein are settled several points of Equity, Law, and Practice. To which are added learned Arguments relating to the Antiquity of the said Court, its Dignity, Power, and Jurisdiction. London, printed by the Assigns of Richard and Edward Atkins, Esquires, for John Walthoe, and are to be sold at his shop in Vine Court, Middle Temple, 1693." The " Reports in Chancery " occupy 288 pages. The " Arguments relating to the Antiquity," &c., which have a new paging of their own, though not a new titlepage, occupy 88 pages. The first edition of the 2d volume was printed in 1694, under the title of " The Second Part of Reports of Cases taken and adjudged in the Court of Chancery, from the 20th year of Charles II. to the 1st year of their present Majesties William and Mary ; being special cases, &c. [same as in vol. 1], To which is added the late great case between the Duchess of Albemarle and the Earl of Bathe," given by Lord Campbell, as belonging to a separate work.i In 1715 there appeared a 2d 1 Lord Campbell refers to a book adjudged." It may, he that the 2d entitled " Reports of Cases taken Part of the Reports, above men- and adjudged in the Court of Chan- tioned, which appeared in 1694, and eery from the 20th year of Charles ■without any mention of its being a 11. to the 1st of William and Mary." second edition oi anything, had ap- See infra, tit. " Cases taken and peared in an earlier form, with an EEPOETS IN CHANCERY. 479 edition of these two Parts. The 3d Part had not yet been printed at all. To the beginning of Part 1st of this new edi- tion the Earl of Oxford's Case was prefixed as a separate .tract. In 1716 was^ first published, in 8vo, the 3d Part of the Chancery Reports ; the only time, I believe, that this Part was printed tiU 1736, when it appeared in the folio already mentioned, and where, along with the two preceding Parts, it is called the Sd edition. This folio edition, the only rep- resentative now acknowledged of the " Chancery Reports," contains a title to the 1st volume, which embraces the con- tents of the two subsequent ones. The different Parts of this book possess unequal merit. The first two — which appear to be mere extracts from the Register's books, and such as might have been made by some person who had never been in court at all — are characterized by Chancellor Kent " as loose and meagre, without much weight or authority ; " while of the 3d Part he says, " that some cases in it, decided by Lord Cowper, are uncommonly well reported." ^ Mr. Green remarks, " that volume 3d of Chancery Reports may be distinguished by two divisions : I. From page 1 to page 98. II. From page 99 to page 224. Most of the cases in the former division are reported to the same effect, and often in the same words, in 2d Freeman, 1 Chancery Cases, or Nelson ; " and these, Mr. Green suggests, may have come from the papers of Sir Anthony Keck.^ All three Parts were published anonymously, and I have never seen anj'^ suggestion as to the authorship of any one of them, except as to the first hundred pages of Part 3d. omission of the Duke of Norfolk's i 1 Commentaries, 492. Case (now inserted at pp. 229-42), = See infra, tit. " Cases in Chan- and that of Bath and Mountague, eery." now at the end, pp. 417-37. 480 THE CHANCEEY EEP0RTER8. NELSON. 1 Car. I.— 5 Wm. HI. (1625-1693). The book commonly known as " Cases temp. Finch," having been edited by Nelson, is sometimes called Nelson's Reports, or more particularly " Nelson's Folio Reports in Can." ^ The title of the present work, which is scarce, it may be well to give in full : " Reports of Special Cases Argued and Decreed in the Court of Chancery, in the Reigns of King Charles I., King Charles II., and King William III., none of them ever before printed," — a statement not true to the letter, since sev- eral of them had been printed, and some of them in totidem verbis, in Chancery Cases and in 3 Chancery Reports. The last, however, appeared only the year before. Most of them are said by Nelson to have been transcribed from the fair MS. of a late attorney-general, and, as is sup- posed, to have been collected by him for his own use. Some of the later cases, according to the same authority, were added by one who formerly attended the court. This book is some- times cited as Nelson's 8vo Rep, in Can} See supra, page 423, Common-Law Reporters, tit. " Lilly. Cases of Assize." (Edns. : Crown 8vo, 1717 ; reprinted 1872.) L'l CASES IN CHANCERY-. 12 Car. XL— 3 Jac. II. (1660-1688). " Cases Argued and Decreed in the High Court of Chan- cery." With this is usually bound, " Select Cases in the High Court of Chancery, solemnly argued and decreed by the late Lord Chancellor, with the assistance of the Judges." London, 1730. This last volume contains the cases of the ' Mosely, 2d edition, passim. CASES IN CHAKCEKY. 481 Duke of Norfolk and of the Earls of Bath and Mountague, and comes down as far as 9th Wm. III. The former of these works, to wit, the Cases in Chancery, is a book of notoriously doubtful authority.^ It is usually distinguished from the " Reports of Cases," &c., mentioned last but one, by being cited as 1st, 2d, or 3d Chan. Cas. : the other book is cited as 1st, 2d, or 3d Chan. Mep. The last-named book has been generally considered as much the better book ; but a competent judge. Chancellor Kent, says that they are, both of them, in their general character, loose, meagre, and in- accurate, and not of much weight or authority ; although the Chancellor remarks, that the reports of some cases decided by Lord Chancellor Cowper, in the third or last volume of the Reports in Chancery, and the cases of the Duke of Norfolk and the Earls of Bath and Mountague, in the Select Cases, are distinguished exceptions to this complaint, and that those cases are fully and very interestingly reported.^ This last book is usually quoted short, S. C. C. ; it is also quoted as 3 Chan. Cas.^ The ordinary reader, it is probable, wiU find as much about the Chancery Cases as he will care to know in the notice which precedes. He whose occasions lead him to seek a minute history of the volumes will be gratified by the article in the note appended, for which, as for much in the text of this article, I am indebted to the researches of Mr. Green.* ' 10 Vesey, 582 ; 2 Ball & Beatty, Court of Chancery,' — a title which 183; 1 H. Blackstone, 332; 6 Dow, did not indicate any purpose of con- 9 ; and 1 C. P. Cooper's Chanoeiy tinuation. It embraced cases in a Cases, 518. regular series, from the Restoration, 2 1 Commentaries, 492. to January, 1678-79, or Hil. Term, = 2 Chancery Reports, 433 of 8vo 30 & 31 Car. II. The next vol- paging in 2d edition, or 199 of the ume, as appears from the dedica- folio, in 3d. tion, came out some time between * " The work now known as May, 1700, and March, 1701-2. It Cases in Chancery, is in three Parts, seems to have been designed as a The 1st appeared in 1697, as ' Cases continuation of the former part, Argued and Decreed in the High since it is entitled ' The Second, 81 482 THE CHANCERY BEPORTEES. It is a curious record on the subject of the editions, the com- position, and the authorship of the different parts of the Cases in Chancery, — points about which "perplexity has had to be disentangled, and confusion to be regulated," and where nothing but obscurity has attended those who have hitherto either aspired to teach or endeavored to learn. (Edna. : There was a 2d edition of 1 Chancery Cases in 1707,''^ and a 3d in 1730, to which, in 1735, there was given a new titlepage, the motive to doing which probably was, that in 1733 there was a 2d edition of Chancery Cases. An American edition of the whole three Parts appeared in a neat 8vo, at New York, in 1828, which seems to be printed from the 2d edition of the 1st and 3d Parts, and the 1st edition of the 2d Part. It is greatly to be regretted that all the notes in the Part of Cases Argued and Decreed in the High Court of Chancery, con- tinued from the 30th year of King Charles II. to the 4th year.of King James II.' This brings us to page 193 of the book. The next page begins with ' Cases Omitted in the former part of Cases in Chancery; ' and under this title we have, in the rest of the volume, a regular series of cases from Pasch. Term, 26 Car. II., 1674, to Hil. Term, 30 & 31 Car. II. , the same term, as we have seen, where the 1st Part of the Cases in Chancery ends, and the 2d begins. In this manner, if in no other, there is a sort of natural connection be- tween the 1st and 2d Parts. But there is no natural connection be- tween either of them and the 3d Part, or, as it is sometimes quoted, the ' Select Cases in Chancery.' That Part was made up in the fol- lowing manner; It contains but three cases, — the 1st originally published in 1685, under the title of ' Argu- ment of the Lord Chancellor Not- tingham, upon which he made the decree, in the cause between the Hon. Charles Howard, Esq., and Henry, Duke of Norfolk.'* The 2d, in 1693, or 1693-94, as ' Argu- ments of the Lord Keeper, the two Lord Chief Justices, and Baron Powell, when they gave judgment for the Earl of Bath.' f The 3d case, which is a short one, was not decided when the other two were first published; and I do not know whether it originally appeared by itself or along with a republication of the former cases. These three cases were afterwards published together, under the title above given, of ' Select Cases,' &c., and in this form are generally bound, and cited as the 3d part of the Cases in Chanceiy." * Worrall's Bib. Leg. p. 16, edition of 1763 ; p. 15, edition of 1782 ; p. 17, edition of 1788. t Ibid. CASES IN CHANCERY. 483 English edition — some of them very good — do not appear in this volume, of so much more acceptable a form than the old folio.i) My remarks in the text and note together give the public history of the volumes. Their private history, or history of their authorship, is less certain, the books themselves dis- closing nothing more satisfactory than this : that the editor of the 2d Part did not himself know who the reporter was, though he had been informed that he was a Chancery practi- tioner of the first rank.^ The reporter speaks of himself in at least two cases as having argued or been of counsel in them.^ Sir John Trevor, M. R., is reported* to have said that Serjeant Maynard was the collector of the volume. But this cannot be true of .the whole of it. Maynard cannot have had anything to do with the last two cases in the 3d Part, both having been decided some years after he was dead, at the age of eighty-nine ; and it is not likely that he re- ported at such length the other case, which is the 1st. These three cases, it is likel}', come each from a different and un- known hand, though certainly from a good one. Mr. Mad- dock, also, in two places,^ refers to cases in the latter portion of the 2d volume,® that is the " Cases Omitted,''' and mentions that Mayna,rd is the supposed reporter. But whether Mr. Maddoek meant to apply this tradition to these " Cases Omitted " alone, or to them along with other parts of the 1 See a note in the English edi- ° Strode v. Strode, 2 Chancery tion to Rennesey v. Parrot, 1 Chan- Cases, 196, where he speaks of the eery Cases, 60, said by Lord plaintiff's counsel, " myself and Alvanley (3 Vesey, 14) to be by others; " and Balch v. Tucker, Id. the "reporter" {sed gu.), and ap- 40, where he says, ''I offered it to proved by him, Lord A., but not to the court." "The court said u)e be found in the American edition, came .too late." though it is in contradiction of the * Clarke. principal case, — a case styled by ^ 1 Chancery Practice, 389; 2 Lord Alvanley " very inaccurate." Id. 416. 2 See the dedication to Sir Na- « Pages 212, 214. than Wright. 484 THE CHANCEEY KEPOETEES. work, does not appear. Lord Thurlow,i citing a decision of Lord Nottingham in the former portion of the 2d volume,^ speaks of Nelson as the reporter. But it is not probable that " the majestic sense of Thurlow " ever occupied itself touch •with the curiosities of law ; and I presume that the Chan- cellor had in his mind Nelson's connection with another volume of Lord Nottingham's decisions, the Cases temp. Finch, of which it is known that Nelson was the editor. Nelson, it is clear, could not have reported all the cases in these volumes.^ Chief Baron Gilbert,* citing a case from the 1st Part of Chan. Cas.,^ would seem to speak of Sir Anthony Keck as the author, and Mr. Hargrave ® is said to have assumed or asserted, as Lord Chief Baron Ward had done long before in his MSS.,^ the same authorship for at least some portion of the work. Lord Alvanley,^ citing a case from the 1st Part,^ very candidly says that he does not know who the reporter is; and Sir Edward Sugden, who would be likely to know who he was if anybody did, seems to be in the same state of ignorance.^" For myself, I have come pretty much to Lord Alvanley's fruitful conclu- ^ 1 Brown's Cases in Chancery, ^ Page 50. 118. s Marvin's Leg. Bib. 183, tit. ^ Page 64. " Chancery Cases; " also, Welsby's 5 Neither coTild Nelson have been Lives of Eminent Judges, 74. the editor of all the Parts. The edi- ' Ex relatione R. Heterick, tor of the 2d Part signs himself J. quoting Welsby's Lives, 82, Phila- W. (the same initials, by the way, delphia, 1844. that are to be found to the dedica- ^ 3 Vesey, 14. tion of 2d Modern. See supra, p. ' Page 60. 365). 1° Vendors and Purchasers, 9th * Gilbert's Reports, 234 ; Dillon's ed. 562, where the author cites a Ex'rs v. Russell, where he says, case from 2 Chan. Cas. 19, and then Wan and Lake's Case, 1 Chan. Rep. quotes very respectfully some notes (this should be 1 Chan: Cas.'), 50, to it by the reporter, as impugning " is reported by Sir Anthony Keck, with ability the decision in the case; as follows." Then follows a report but does not make any suggestion as in the same words as that case ap- to who the reporter was. See also pears in 1 Chan. Cas. 50, and 3 Fonblanque's Equity, 290 note, Chan. Rep. 15. Laussat's edition. CASES IN CHANCEKY. 485 sion. I cannot discover to whom the book, in its present shape, is to be attributed. I presume that it is a composite production, put together probably by some one of those "learned" or "eminent persons," a kind of manuscript brokers, who in the last century used to enjoy a demi- professional character between the bar and the booksellers. There is some evidence, I think, to show that Sir Anthony Keck, who with Maynard was one of the Lords Commis- sioners of the Great Seal under William and Mary, and whose name may be seen as counsel of Mr. Howard in the great case of the Duke of Norfolk^ (though according to Lord Campbell ^ otherwise a " wholly uninteresting char- acter "), had a hand, or at least a finger, in the 1st Part of the Chancery Cases. He could not, however, have been the author of the whole book, since in the 3d Part (the Select Cases, &c.) several references are made, in a manner which proves that he could not have been the reporter, to his illness and absence .during the discussion of that case, and of what was done while he was away. My conclusion in regard to his connection with the 1st Part is founded on what is re- ported by Gilbert and Hargrave, taken in connection with evidence presented to me by Mr. Green, who thinks that Keck may have been the author of 1st Chancery Cases or of 3d Chancery Reports, though not of the other volumes of this latter work. Mr. Green's remarks are as follows : — " In Freeman's Chancery Reports, the cases down to page 124 extend in a regular series of time from Pasch. Term 1676 to the same Term 1692. Then the cases from page 185 onwards extend 1 S. C. C. 38, 39, 40. or their going to the University, of ^ Lives of The Lord Chancellors their being called to the bar and of and Keepers, vol. iv. p. 3. " Keck their death, -which would compre- and Kawlinson are wholly unin- hend the whole of their known teresting characters, and there could history, beyond their accidental ap- he no amusement or instruction in pointmeut to their present oflBce. " recording the dates of their birth, 486 THE CHANCERY EEPOETEES. in a like series from Mich. Term 1692 : all these have the appear- ance of a uniform stj'le, as if taken by Freeman himself. But interposited, in the middle of the volume, from page 125 to page 185, are found a number of cases without regard to any order of time, and which, for the most part, bear internal evidence of not having been taken by the same hand as the others. Of these cases, thus interjected, manj' are also reported in 1st Chancery Cases or in 3d Chancery Eeports, with only such alterations as would be made in copying or abridging. Now when it is remem- bered that tradition has given to Sir Anthony Keck the authorship of a portion at least of the Chancery Cases, and when it appears, as it accidentally does by the case of Edwards v. Freeman,^ that Sir Anthony was the father-in-law of Freeman, the coincidence is striking, and leads us to the belief that those reports in the Chan- cery Cases came from the same MSS. as those in Freeman, which, from the affinity of the parties, were doubtless those of Sir Anthony Keck himself." ^ FREEMAN. 12 Car. II.— 5 Anne (1660-1706). See supra, page 390, Common-Law Reporters, tit. " Free- man." /Edns. : "With Freeman's Common-Law Reports, fol., j>i742 ; in a separate form, 8vo, 1823.) 1 2 Peere Williams, 436. copied from the other; and, as Free-' • The case of The Marquis of man would not have copied from a Antrim v. The Duke of Buckingham, printed book, that when copied the in Chancery Cases, 17, is in 2 Free- Chancery Cases must have been in man, 168, pi. 214, totidem verbis, MS. (Note by Mr. Heterick to the and is an evidence that one was 3d edition of the Reporters.) CASES TAKEN AND ADJUDGED. 487 CASES TAKEN AND ADJUDGED. 20 Car. II.— 1 W. & M. (1668-1688). Of this book I had not heard until reading Lord Camp- bell's Lives of the Chancellors.^ It is there spoken of as reporting in a bad and most unsatisfactory manner a num- ber of cases by Lord Nottingham, and is described as " An anonymous 8vo volume, dated 1694, and entitled ' Reports of Cases, taken and adjudged in the Court of Chancery, from the 20th year of Charles II. to the 1st of William and Mary.' " ^ I sent to London, in 1845, for the book, and re- ceived for answer that it was " very scarce, and had not been met with for some years." Mi'. Green supposes that it con- tains the same cases now found between pages 1 and 191 of 2d Chancery Reports, folio edition of 1736. I have no doubt that he is right. If you will treat what follows page 191 as no part of that book, the contents of the vol- ume will exactly answer to Lord Campbell's title of the Cases Taken and Adjudged.^ Mr. Welsby mentions the same work referred to by Lord Campbell, and, without having heard of it, has suggested Mr. Green's conjecture. 1 Vol. iii. p. 416. 191) is said to be '3 Jac. II. f. 2 [This is the title of " The Sec- 148, 599;' but then it is to be ob- ond Part of Keports of Cases taken served that the cases, almost without and adjudged in the Court of Chan- exception, are taken from the Reg. eery from the 20th year of Charles II. Lib. , to which the figures last quoted to the first year of their present Ma- refer; and that the year which gives jesties, King William and Queen date to the Register's book (Seaton's Mary." London, 1694. See ante, Forms of Decrees in Equity) be- p. 478 and note. J gins in Michaelmas Term ; so that ' "It is true," says Mr. Green, all cases from Mich. 3 Jac. II., until "that there was a Michaelmas Term, the Michaelmas following, appear 4 Jac. II. ; and the latest case in the there under date of 3 Jac. II." volume (rejecting what follows page 488 THE CHANCBEY KEPOBTEBS. He states that it is, in fact, a continuation of a similar work published the year before; though he does not say, what I suppose to be the case, that this prior work is the 1st Part of " Chan. Rep." ^ REPORTS TEMP. FINCH. 25 Car. II.— 33 Car. U. (1673-1681). " Foe what Lord Nottingham did and said, in the Court of Chancery, we have chiefly to trust to a foHo, published in 1725, entitled ' Reports temp. Finch ; ' being a selection of cases decided by him from 1673 to 1680, in which the reporter himself was counsel ; ^ but they are miserably executed, con- taining a defective narrative of facts, hardly any statement of the points made by counsel or the authorities relied on, and without the reasons of the Judge, giving only an abstract of the decree, with the introductory words : the court ordered, or, the court directed, or, the court allowed." This extract from Lord Campbell's notice of Lord Notting- ham, contained in the "Lives of the Lord Chancellors and Keepers," ^ is supported by the highest authorities, all of whom speak of the book disparagingly.* It is sometimes called Finch's Reports,^ " and therein," said Mr. Fazakerly,^ " is too much honored ; " and sometimes Nelson's Reports, and therein, perhaps, is quite enough dishonored. More par- 1 Lives of Eminent Judges, 74. * 10 Vesey, 582 ; 1 Wilson, 162 ; See an«e, pp. 478, 487, and notes. 1 Atkyns, 369, 370; 3 Id. 334; 2 " I apprehend that the reporter West's Cases temp. Hardwicke, was counsel in none of them. The 501; and see 4 Dow, 85. probability, I take it, is that Nelson ' Sir John Randolph, of Virginia, made them up out of the Register's who had studied in the Temple, books, -which he misunderstood and calls it Lord Nottingham's Reports, mangled." — Vf. Green. (Jefferson, 4.) 8 Page 416. « i Atkyns, 369, 370. EEPOKTS TEMP. PINCH. 489 ticularly it is cited as Nelson's Folio Rep. in Can.,^ to distin- guish it from Nelson's Reports, properly so called, which is sometimes cited as Nelson's 8w Rep. in Can.,^ mentioned atite, page 480. (Edns. : FoL, 1725.) It is grievous to think that such are the records which pro- fess to transmit to us the decrees of Lord Nottingham. A few- only of his decisions come to us in any form to do justice to his great understanding. These may be read in the Appendix to the 2d and 3d volumes of Mr. Swanston's Chancery Re- ports. It would appear, also, that Lord Eldon, at one time, had possession of Lord Nottingham's MS. notes, which, in an important case, gave a report, no doubt true, and wholly dif- ferent from the one in Cases temp. Finch ; and which made the case, as given in that book, " no authority at all " for the point which was cited and which it appeared to support.* However, Mr. Swanston, in another case, arguendo,'^ while he admitted*that the book was of very questionable authority, thought it proper to say that in comparing several of the cases in that book with Lord Nottingham's MS. he had found them generally correct. The Reports temp. Finch has been noted for a peculiarity, viz. that in all cases where the rule laid down or .relied on by the Judge differs from the corresponding rule of the civil law, the difference is noted in the margin. I have already adverted ^ to a ludicrous blunder of Mr. Justice, the Honorable St. George Tucker, of the Supreme Court of Appeals of Virginia, who sets aside Lord Hard- wicke's censure of this book, and supposes that Lord Notting- ham was actually the author. " This book has, indeed," he says, " been dishonored as one of no authority ; " whether for ''■ Mosely, 2d edition, passim. ^ 2 Younge & Collyer, 440. * Ibid. 6 Supra, " Preliminary Re- ' 4 Dow, 87; and see 1 Mad- marks," § 14 note ; 1 Hening & dock's Chancery, 21. Munford, 293. 490 THE CHANCERY BEPORTERS. want of the impiimatur of the Lord Chancellor and Judges, formerly prefixed to books of reports, I cannot tell. But the name of Sir Heneage Finch, the author, who is mentioned by Judge Blackstone as a person of the greatest abilities and most uncorrupted integrity, endued with a pervading genius, which enabled him to discover and pursue the true spirit of justice, may weigh against the opinion even of Lord Hardwicke, especially where this book is cited and relied on by other Judges. EQUITY CASES ABRIDGED. It may here be proper to speak of this work, which, though, in the nature of a digest, is yet often cited. Like the Abridgments of RoUe and Viner, the work contains many cases from MSS. The 1st volume, of which I.believe Mr. Pooley was the author,^ is regarded as very good authority,^ and was so admitted to be by opposing counsel, in Blount v. Burrow.^ Indeed, Lord Kenj'on thought it so useful a reper- toiy of equity jurisprudence, that he recommended it as an elementary work to a young man who had applied to him for advice as to a course of professional reading.* The cases, it 1 21 Viner's Abridgment, 490, strongly supposed Mr. Foley was folio edition, tit. " Trial," A. h. the author. But as Mr. Heterick § 10 note; and 5 Id. 408, tit. " Con- suggests, " Foley is probably a mis- dition," B. § 19 note; also 1 Id. print for Pooley." Preface, iv, and 3 Vesey, 285. Not- 24 Vesey, 566; 5 Term, 61; withstanding this, however, Mr. Beames's Equity Costs, 160; 1 Viner, in one place, would seem to Viner's Abridgment, Preface; 21 speak of Mr. Robins, styled by Lord Id. 490, folio edition, tit. " Trial," Hardwicke (2 Atkyns, 3) " a very A. h. § 10 note; 1 Bosanquet & eminent counsel," as the author Puller, G14. (see his Abridgment, vol. xii. p. * 1 Vesey, Jr. 547. 24, pi. 32, in the margin) ; and in * Townsend's Lives of Twelve another place (Abridgment, vol. xi. Judges, vol. i. p. 122. p. 365, pi. 17), he says it was EQUITY CASES ABRIDGED. 491 is obvious, are reported by a good lawyer, who understood perfectly well the decisions which he was reporting ; and the volume often renders clear and sensible cases which in Ver- non are unintelligible or very improbable. The cases, how- ever, are not all of the same person's taking. The author of the book tells us, in the preface, that all the cases reported after 1726 were reported by him. Still he seems to have been careful as to Avhat he put in the book.^ The 2d volume (the author of which is not known) stands less well than the 1st. It was spoken of disrespectfully by Sir R. P. Arden, M. R., who says that it is not considered as " of very high authority ; " ^ and by Lord Roslyn, who re- marks that most of the cases in it are " very inaccurate ; " ^ and in the same way, in two different places, by Sir Thomas Plumer, who calls it "a book of no great authority."* Lord Man- ners,^ too, treats it with unmannerly regard, as does likewise Lord Eldon,^ who styles it a book " of no very high character ; not so high in character as the 1st volume." But Lord Eldon thought that a case which he cited, reported there, was en- titled to credit ; the more, he adds, however, because " I have found authority to consider that report to be a very correct report, in the library and in the mind, which are both equally large storehouses of equity learning : I mean the library and mind of Lord Redesdale." Lord Redesdale had looked through 1 A case from 1 Equity Cases racity, who took it himself in the Abridged having been cited before Court oi Chancery." Chief Justice Willes (Willes, 96), ^ i Vesey, Jr. 578. and denied, apparently, by opposite ' 3 Vesey, 186. counsel, who said there was no such ^ 2 Jacob & Walker, 428, and 2 decree to be found in the Register's Maddock, 140, or American edition book, the Chief Justice said that, of 1829, 414. See 4 Vesey, 721, after examining the Rolls, "I in- HollisH arguendo. quired of the author of the book, ° 2 Ball & Beatty, 28. who told me he had the case from a " 1 Bligh N. R. 538, 539. And see person of very good credit, who told Ahrend v. Odiorne, 118 Massa- me that he had it from a gentle- chusetts, 265. man of indisputable skill and ve- 492 THE CHANCERY EEPOETEES. his books, printed and MS., and confirmedthe report.^ So in 2 Brown's Chancery Cases, page 45, the Master of the Rolls, Sir L. Kenyon, was willing to give the book this small measure of the accomplice's credibility. He spoke of it as not a book of the first authority, yet relied on a case reported there, other authorities supporting it. (Edns. : Dublin, 3 vols. 8vo, 1792.) In the same connection with the Equity Cases Abridged may be mentioned an alphabetical digest, which bears the name of — THE PRACTICAL REG-ISTER IN CHANCERY. Op the original edition of this book, since improved by an intelligent editor. Lord Hardwicke remarked, " that, though not authority, it was better collected than most books of the kind." 2 Lord Thurlow speaks of it as " a good book, which seldom mentions anything, even slightly, without authority ; " and though his Lordship, in making this remark, said, very positively, that it was mistaken in one of its statements, and made an order contrary thereto, it is yet remarkable that he afterwards admitted he " was wrong in holding so," and over- ruled himself ; and that the law, as stated by the Practical Register, — and for which, according to Lord Thurlow, when he overruled it, there was not a single authority in all the books, — has since become firmly established.^ Mr. Mitford cites it with respect, remarking, however, that any book of practice is to be cited only in the absence of other authority.* Mr. Daniel speaks of it as " of considerable authority ; " ^ and Bridgman, who, though incapable, perhaps, of judging for himself, was yet able to collect and report the opinions of 1 S. C. 1 Dow & Clark, 1, 11. « Treatise on Pleading, 7 note. ^ 2 Atkyns, 22. ^ Practice of Chancery, vol. i. ' 2 Brown's Cases in Chancery, p. 104. by Perkins, Boston, 1844, p. 146 ; 3 Id. 489. PRACTICAL REGISTER IN CHANCERY. — VERNON. 493 others, calls it, as edited by Mr. Wyatt in 1800, " a most ex- cellent and useful work." ^ * (.Edns. : 8vo, 1714 ; Wyatt's, 1800, with the addition of all the then modern cases, and an index.) YERNON. 33 Car. II.— 6 Geo. I. (1681-1720). Mr. Vernon was one of the most eminent lawyers of his day ; ^ and such was the weight of his opinion as counsel, that Lord Talbot, referring to a case decided by the Earl of Macclesfield, mentions it as a circumstance of weight that Mr. Vernon had always grumbled at the determination of that case, and never forgave it to Lord Macclesfield.^ And in another case* the reporter, Peere Williams, saj^s : "Vernon & Cur. contra." So again ^ the Lord Chancellor, in delivering his opinion, cited the opinion of Mr. Vernon with great respect. For an incident in the professional life of Mr. Vernon, showing how completely the venerable reporter had devoted himself — as the clergy consecrate, or do not consecrate, themselves to Heaven, " soul, body, and spirit, with all their faculties and powers " — to his mistress of the Chancery Law, I am indebted to a private letter of Lord Cobham. His Lordship is writing to Mr. Pope, the poet, thanking him, with an elegant modesty which proves his title to poetic eulogy, for those immortal stanzas which commend his name and virtues to enduring honor. The poet, it appears, had given in the first edition of his essay some instances of 1 Legal Bibliography, 263. See ' Cases temp. Talbot, 64. 1 Swanston, 125; 11 Vesey, 309; 2 * Nichols v. Hooper, 1 Peere Simons & Stuart, 243 ; 2 Simons, 36. Williams, 199. 2 1 Broderip & Bingham, 369. ' 1 Peere Williams, 551. 494 THE CHAITCERY EEPOETEES. " the ruling passion," which were distasteful to Lord Cob- ham's delicacy. He suggests that these might be replaced by others not indelicate ; and in illustration of the " good, ' old-gentlemanly vice," adduces " Counsellor Vernon, retiring to enjoy himself with five thousand a year, which he had got, and returning to the Chancery to get a little more when he could not speak so loud as to be heard." ^ Indeed, the case of Atcherly v. Vernon,^ which was a case arising on his will, gives us the same comfortable account of the rewards of professional labor; it being mentioned as among our re- porter's testamentary dispositions, that besides £200 a year which he gave to his sister, Mrs. Atcherly, and £1,000 that he gave this lady's daughter, his niece, he gave his wife £500 to be paid presently, and for life " £1,000 a year, free from all taxes but parliamentary ones ; all his plate ; his London house, and the goods and furniture, likewise the use of his house at Hanbury, with all the demesne lands and park that he kept in his own hands, with all the goods and furniture, together with the books." And that after making his will he purchased several other estates, and likewise a copyhold estate. It appears from this case of Atcherly v. Vernon ^ that the MSS. of Mr. Vernon's Reports, found in his study after his death, were the subject of a suit in Chancery, between his widow, his residuary legatee, and the heir-at-law. The widow claimed them as included in the bequest " of house- hold goods and furniture ! " the trustees of the residuary estate regarded them as embraced by the expression, " the residue of my personal estate ; " while the heir contended that, "as guardian of the reputation of his ancestor," the MSS. belonged to him, in the same way as would a right of action for the defacing of his ancestor's tomb. " The printing, or not printing, of these papers," says the counsel 1 Pope's Works, vol. v. p. 281, = 10 Modem, 530; 9 Id. 68; S. C. Roscoe's edition of 1827. and S. P. VEKNOK. 495 for the heir, "may as much affect the reputation of Mr. Vernon as any monument or tomb. Possibly they are not fit to be printed; possibly they were never intended to be printed." " Suppose a man of learning should have the misfortune to die in debt, can the creditors come into this court and pray a discovery of all his papers, that they may be printed for the payment of his debts ? And if the creditors cannot do this, a fortiori, not the trustees in the present case. If a minister of state should die, he may have a great number of papers that may be very curious, may print and sell well ; yet surely these will not be considered as personal estate and go to the executor." Lord Macclesfield finding the decision difficult, and the parties probably thinking that it was doubt- ful, the dispute was settled in the best of all possible ways, by the Chancellor's keeping the MSS. himself.^ Under his direction, with that of Lord King, it was that in 1726-28 they were first published. The editors were Mr. Melmoth, a bencher of Lincoln's Inil, and Mr. Peere Williams, who are supposed to be the authors of some of the marginal notes.^ As it appeared in the sequel, the heir had a good deal of weight in his arguments; for the MSS. were not very "fit to be printed," and probably were " never intended to be printed." Certainly, as at first published, the volumes were quite deficient in accuracy.^ But in 1806-7, at the suggestion of Lord Eldon, Mr. Raithby favored the profession with a 1 " The court," says the re- leot Equity Cases, 385; 1 Crompton, porter, "decided nothing in this Meeson, & Eoscoe, 538. In the. affair, because all consented to have case given in 1 H. Blackstone, 326, them printed under the direction Loughborough, C. J., speaks of the of the court, without making any usual inacuracy of the cases in Ver- profit of them." non. Mr. Kaithby, like a good = 3 J. B. Moore, 702; S. C. 1 editor, supposes that Lord Lough- Broderip & Bingham, 369. borough really said, " from the usual 8 1 Atkyns, 556; 2 Vesey, 610; accuracy of Vernon's Reports." 3 Vesey, 14 ; Clarke ; 8 Term,. (Baithby's Vernon, 99.) Conjec- 266; 1 Broderip & Bingham, 369; tural criticism seldom, however, was 1 H. Blackstone, 326 ; Parsons's Se- less warranted. 496 THE CHANCEEY REPOKTEKS. new and " very valuable " ^ edition, enriched with learned notes and accurate extracts from the Register's Books, — a source of correct information often resorted to with effect in regard to reports of our days, but particularly valuable in reforming the early cases, as the decrees were formerly much more minute in their directions than those of modern times.^ A new edition of Raithby's Vernon appeared also in 1828. The volumes have therefore much more value now than when first published; but still in them we should vainly look for a monument worthy of the great men whose de- cisions they record, — Lord Nottingham, Lord Somers, and Lord Cowper. They are often extremely meagre and in- correct. Lord Campbell, in one of his recent works, — quite pleas- antly, though with some want, perhaps, of the charity that, unable to " believe," would yet " hope " all things, — tells us that Mr. Vernon spitefully suppresses Lord Harcourt's best decisions, and gives doubtful ones.^ But if it be true, as I believe it is, that the book called Vernon's Reports was never designed for publication, was meant for the author's own use alone, and never printed till after his death, the malice of Mr. Vernon gratified itself in a very innocent way. And the 1 16 Vesey, 24; 13 Id. 186. lection many decrees in which they 2 " The decrees of the present pursue the thing throughout, so as day," says Mr. Seton (Forms of almost to render any application to Decrees in Equity, viii), " are. gen- the court for farther directions un- erally speaking, far less explicit and necessary ; whereas, certainly the much less in detail than were the modern decrees are quite of a differ- decrees some time before, and even ent stamp.' . . . Sir Thomas Sewell so late as the period of Lord Hardr gave very particular directions in the wicke. 'Icopied,' says Chief Baron old form. I think, after him, it Alexander, ' when I was a young ceased at the rolls." For an in- man in the profession, a set of de- stance of the minuteness of these crees made in the time of Fortescue, directions, see Price v. Fastnedge, when he was Master of the Rolls, Blunt's Ambler, 686. and many of my Lord Hardwicke's ' Campbell's Lives of the Lord time, and in them were full direc- Chancellors and Keepers, vol. iv. p. tions. . . . There are in that col- 458 note. VEENON. — PKECEDENTS IN CHANCEEY. 497 charge is clearly groundless, so far as Vernon is concerned, if there be any weight in the suggestion which, while con- futing, Lord Campbell mentions, as given by others, that Lord Chancellor Jeffries, and not Vernon, was the author of what is known as Vernon's Reports.^ Raithby's edition of Vernon was reprinted, A. D. 1829, in the United States, at Brookfield, Mass. PRECEDENTS IN CHANCERY. 1 Wm. III.— 9 Geo. I. (1689-1723). These notes, as far as the year 1708, are generally sup- posed to have been taken by " that great man," Mr. Pooley, the person commonly reputed to be the author of the first volume of the Equity Cases Abridged.^ The MS. of the work had been left with Lord Chief Baron Gilbert, either as a loan or for some purpose of safe keeping ; and, having been abstracted after death from his papers, was clandes- tinely printed. Lord Brougham once cast some imputation upon it ; ^ but his Lordship's reproach was unfounded. The work as a whole is one of good authority ; * though a 1 Hardwicke's Tribes of Wales, non himself, that some of them were 110 note, quoted in Campbell's Lives obtained from Sir Anthony Keck or of theChancellors,vol. iii. p. 583 note, from his papers. Mr. Vernon mar- I take this to be mere pleasantry of ried a daughter of Sir Anthony." * Lord Campbell's, not only from the ^ Preface to Viner's Abridg- faot stated by him, that Vernon's ment, vol. xviii., foL ed. ; 2 Mad- Reports come down to 1718, when dock's Chancery, 383 ; 1 Sehoales & Jeffries had been in his grave thirty Lefroy, 269. years, but also from the fact that » i Russell & Mylne, 269. See this circumstance, which would have 7 Law Magazine, London, 377, 378. been conclusive against the heir's * 7 Modern, 304 ; 5 Vesey, 664 ; right, is never referred to in the Willes, 214 ; 7 Law Magazine, lawsuit about the MSS. "It is 377; quoted in Marvin's Legal much more probable," says Mr. Bibliography, tit. " Precedents in Heterick, "if all the reports in Chancery." Vernon were not taken by Mr. Ver- » 10 Modem, 518; S.C 9 Id. 68. 32 498 THE CHANCEBY BEPOKTEES. particular case, as Lord Roslyn said was the fact with that of Harkness v. Bayley,^ maybe "totally misreported ; " or another, as Sir William Grant ^ said was the case with Nichols V. Skinner,^ may be " totally misrepresented." The booksellers sometimes called this book Finch's Prece- dents ; a barrister by the name of Thomas Finch having edited a much improved edition of it. Among Mr. Finch's notes are reports from MSS. of several cases, most or per- haps all of which afterwards appeared in Brown's Chancery. Among them, at p. 200 note, is a report of Piearson v. Gar- net, at the Rolls, which' was corrected by Sir Lloyd Kenyon, the Master of the Rolls, who decided the case.* (Edns. : The earlier impressions of this work are dated in )( llSa, 1747, and 1750, and are in folio ; Mr. Finch's ap- peared in 1786 (Dublin, 1792), in 8vo. It is called on its titlepage the " second.") PEERE WILLIAMS. 7 Wm. m.— 9 Geo. III. (1695-1736). These Reports, embracing a term of time when a succes- sion of eminent men presided in Chancery, and when Equity was assuming, and in a considerable degree had assumed, the character of a science, were always regarded as one of the most perspicuous, useful, and interesting repositories of equity law to be found in the language.^ But they have re- ceived great additional value from the notes of their editor, Mr. Cox. " The bench, the bar, and the public in general," 1 Page 514. case is also reported in 2 Brown's 2 2 Merivale, 135. Chancery Cases, 38, 226. ' Page 528 ; s. c. totidem verbis, ^ 1 Kent's Commentaries, 493; in 2 Equity Cases Abridged, 246, 4 Vesey, 464; Bridgman's Legal pi. 10. Bibliography, 359. * See 2 Vesey, Jr. , 61 note. The PEEEE "WILLIAMS. 499 said the Master of the Rolls, Sir R. P. Arden,i referring to one of these notes, " are much obliged to him for his very valuable edition of those very valuable reports ; " and the Master thought that the cases relating to the law in a parti- cular case had been so well stated, the rules so accurately and so shortly presented, and the principles so well extracted from all the cases, that he preferred to use Mr. Cox's lan- guage to his own. The same Judge expressed a similar opinion of Mr. Cox's notes in another case ,2 and other per- sons in different places have spoken in the same way of the excellence of these notes.^ " We roaj perhaps regard Peere Williams," says my valued correspondent, Mr. Heterick, " as the first full, and clear reporter of Chancery Cases that is. Prior to his day, — the day of Lord Somers, — the Reports for the most part (though as respects particular cases there are exceptions) were mere notes, and often loose ones at that. But it would seem that about this time the profession became convinced that some better reporting was needed on Chancery Cases, and a great improvement was now made." Sir Launcelot Shadwell, Vice-Chancellor of England, re- ports * Lord Eldon to have said, in November, 1821, " that the cases in the 3d volume of Peere Williams were not of equal authority with the cases in the first two volumes ; " and adds as a reason, whether of his own or Lord Eldon's I do not understand, that " the reporter published those two volumes 1 3 Vesey, 130. Mr. Cox's edition of Peere Wil- " 4 Vesey, 462. liams, to a young man who had ap- ' 1 Kent's Commentaries, 493; plied to him for advice as to a Appendix to the 1st Report on the course of professional reading. Mr. Public Records, 383, quoted in 12 Dunning did the same. (Lawyer American Jurist, 64; Pursuits of and Magistrate's Magazine for Literature, Dialogue iv. 368, p. 292, July, 1791, vol. iii. pp. 175, 177.) Philadelphia, 1800; Townsend's * 14 Simons, 655; and see 2 Lives of Twelve Judges, p. 122, Mylne & Keen, 757. where Lord Kenyon recommends 500 THE CHANCEKY REPORTERS. during his lifetime, but did not publish the cases in the 3d volume, because he did not think them of equal authorit}'." There is a mistake somewhere here : all three volumes of Peere Williams were published after his death, and all by the same person, his son. A selection of the cases, I believe, was first made, which filled two volumes. The third, contain- ing the residue of the cases, required some revision and an authentication from the Register's Book, and appeared after- wards. But I am not aware that this last volume is essen- tially inferior to those which precede it. Indeed, 66 pages of it are occupied with the case of Rex v. Burridge, of which it is known that the opinion of Lord Hardwic^ie — a splendid opinion, indeed — is printed verbatim from Lord Hardwicke's own MS.^ - I fancy that the Vice-Chancellor — more prob- ably he than Lord Eldon — has confounded Salkeld with Peere Williams. His remarks would be true had they been made in regard to Salkeld, but, as I have said, are the re- verse of it as applied to Peere Williams. In Savile v. Savile,^ this reporter gives us a case in which Lord Macclesfield lays down some principles of equity which would occasionally be welcome to that numerous class of peo- ple, both in England and America, who never will be warned in time, never " stand from under," — the impressionable gentry who think that, when times are at the worst, they will never improve, and when they are most brilliant, that they will never grow dull. The case before Lord Macclesfield was thus : During the supremacy of John Law and the daj's of South Sea schemes, a certain Mr. Frederick had bought a piece of real estate at a Master's sale, and paid £1,000 as a deposit. Mr. Law's bubble having in due time burst, the land fell enormously in value. The vendors, of course, — who, having sold the land, ^ Harris's Life of Hardwicke, for the reason why it was not pub- vol. i. p. 348. See the preface to lished along with the first two. the 3d volume of Peere Williams, " 1 Peere Williams, 746. PEEEB "WILLIAMS. 601 and sold it, probably, in exact anticipation of a fall in value, — did not consider that the value was a matter which now con- cerned them, and wanted the sale completed. They filed forthwith a bill for specific performance. Mr. Frederick saw things in an aspect quite different as well from that of the vendors as from that of his own respectable former self, and offered to forfeit his £1,000 deposit. He thought that, in conscience, nothing further could be asked of him; and of this opinion was Lord Macclesfield. His Lordship says that, according to his apprehension, " a court of equity ought to take notice under what a general delusion the nation was at the time when this contract was made by Mr. Frederick, when there was thought to be more money in the nation than there really was, which induced people to put imaginary values on estates ; that as upon a contract betwixt party and party, the contractor would not be decreed to pay an unrea- sonable price for an estate, so neither should it be imposed when sold by the court." However, since Lord Macclesfield's time, we have got so used to these periodic inflations of money, — to this swell, and break, and ebb of fiscal waves, — that the principle would hardly be recognized in this day. Indeed, it was hardly law in his own ; and his accomplished reporter adds in a note, that this is not the ordinary law of the court, and " the decision was probably founded on the general delusion of the times." (Edns. : Mr. Cox's edition has been printed in Dublin, 1798, also in the United States ; and in England as lately as 1826, with new references, by Messrs. Morris, Lowndes, & Randall, — an edition styled by Lord Brougham in the House of Lords an " excellent one." ^ The editions prior to it are, 1st, in 1740 (the first two volumes only, I presume), folio, published by the author's son ; 2d, 1746, two volumes, folio (a 3d volume appeared, I suppose, in 1749, in folio) ; 3d, in three volumes, folio, in 1768.) 1 3 House of Lords Cases, 130. 602 THE CHANCEBY KBPOETERS. GILBERT'S REPORTS. 4 Anne— 13 Geo. I. (1705-1726). " Reports of Cases in Equity, argued and decreed in the Courts of Chancery and Exchequer, chiefly in the reign of King George I., by a late learned Judge : to which are added some select Cases in Equity, heard and determined in Ire- land, by the same hand," &c. Though never attempting to study them, I believe, in that " altogethery " condition of Michael Cassio, when he saw so badly, " Gilbert's Reports " were nevertheless, to me, for some time, 'such a " mass of things, but nothing distinctly," — his " Cases in Law and Equity " containing no cases in Equity at all, while his " Reports " had them in two or three Equity courts at once, — that for a season I gave up all hopes of discovering what " Gilbert's Reports " really were. I have now displayed the title as above, for the benefit of others who might happen to be in my former difficulty. Of the present work, Mr. Viner says : ^ " That the Reports of Cases in Equity came out of his Lordship's study is most certain ; that the copy thereof was purchased by one of the patentees, of a person who had no right or authority to dis- pose of it, is equally certain ; and I have very good reason," he adds, " to think that, had his Lordship been living, he would no more have consented to its publication than did his representative, who, as I have been told, exhibited a bill in Chancery against the publisher." Lord Mansfield^ cites the book as " Reports in Equity called Gilbert's." The volume is one of no kind of weight, and when cited by Sergeant Wynne (22d June, 1737, in the Common Pleas), " the court exploded the book, and told the Sergeant they hoped he would quote cases from some better authority." ^ ' Preface to Viner's Abridgment, vol. xviii., fol. ed. 2 3 Burrow, 1624. s Clarke. GILBERT. — SELECT CASES. 503 It is sometimes cited as " Gilbert's Eq. Rep.," and many of the cases in it seem, says Mr. Viuer, to be taken from a MS. copy of the Precedents in Chancery .^ There, in fact, are several more than are stated to be so in the printed copies of either book ; and the cases are totidem verbis in the two books. As this last-named book is regarded as one of author- ity, we must presume that " Gilbert's Reports " is a better book than has been supposed. And this is, I believe, a true conclusion. (Edns. : Fol., 1734 ; and 2d, in 1742.) GILBERT. CASES IN LAW AND EQUITY. 12 Anne— 1 Geo. I. (1713-1715). " Cases in Law and Equity, with two treatises : one on the action of debt, the other on the Constitution of England." This work contains no Equity cases at all. Its appropriate place, notwithstanding its title, is among the Common-Law Reporters.2 I insert it here only in virtue of its titlepage, which naturally would lead one to expect to find it among Chancery reporters. (Edns. : 1760, 8vo.) SELECT CASES. 11 Geo. I.— 7 Geo. II. (1724-1734). " Aegued and adjudged in the High Court of Chancery, before the late Lords Commissioners of the Great Seal, and the late Lord Chancellor King, from the year 1724 to 1733, » 5 Viner's Abridgment, 408, = See supra, p. 417, Common- folio edition, tit. " Condition," B. Law Reporters. § 19 note. 504 THE CHANCEEy EEPOETEES. with two tables," &c. ; by a Gentleman of tbe Temple. In the Savoy, 1740. The title of this work is given at large in order to distinguish it from another volume of Select Cases, usually bound up with the work, quoted as " Cases in Chan- cery," and already mentioned. ^ The present book is said by Lord Redesdale, in a passing remark, to be a book of no great authority ,2 — an opinion which he had previously intimated at the bar while Attor- ney-General. He called it " an anonymous book, and there- fore, perhaps, not to be considered of so much authority." ^ Sir Alexander Wedderburne (afterwards Lord Loughbor- ough), while Attorney-General, in answering a case cited from this volume, styled it " a very idle book." * However, neither the counsel citing the case, nor Sir Alexander abusing the book containing it, were at the pains to look at the record, to see whether in the particular case it was right or wrong. A second edition of this work, " with explanatory notes and references to former and subsequent determinations, by Stewart McNaughton, of the Middle Temple," was printed in London, 8vo, in 1850, and reprinted in Philadelphia, 1851. MOSELY. 12 Geo. I.— 4 Geo. II. (1726-1731). When Mosely was cited before Lord Mansfield, the Earl told counsel that the volume was one which should not have been quoted ; ^ and this censure kept the book for some time in disgrace.® Lord Mansfield, however, was rather given to 1 Supra, p. 480. 560; Campbell's Lives of the Chan- 2 2 Schoales & Lefroy, 634. cellors, vol. iv. p. 614 note; 1 Bin- 3 5Vesey, 598. ney, 213; 10 Simons, 425. The * 1 Brown's Chancery Cases. censure is still felt. See 1 Phillips, ' 5 Burrow, 2629. 127. 8 3 Anstruther, 861; 5 Term, MOSELY. 605 despatching, in this summary way, such books as reported anything with which he did not coincide ; and this class of reports being somewhat numerous, a good many volumes came in, of course, for ah abatement of honor. In the case before us, as in some others, perhaps, the Chief Justice was a little hasty, and seems not to have censured in his wisdom. A much better judge of the merits of a Chancery reporter has deemed it proper to record an emphatic dissent from him in this criticism. Lord Eldon thought " very differently " from Lord Mansfield, " having always considered Mosely's Re- ports as a book possessing a very considerable degree of ac- curacy ; " ^ an opinion which he expressed more than once.^ Mr. Hargrave, likewise, in noting an observation of Lough- borough,** who once told counsel that " he had not heard the book cited," mentions that he " took the liberty of saying on that occasion, that he had often heard it cited, and that he liad found very good matter in it." In a case before Lord Kenyon,* though counsel stated that the book was of little authority, his Lordship recognized it as authority, and decided according to it. So, too, in another case ^ the Master of the Rolls said that he had seen the decree in a case of Mosely's, and that Mosely's report conformed to it. I am not conscious of its being anywhere, remarked that in the case where Lord Mansfield condemned Mosely, the ac- curacy of the reporter was established by a certificate from the Register's book.^ (Edns. : Fol., 1744 ; and 2d, Dublin, 1793, in 8vo, or 1803, in Svo, with a London titlepage.) 1 1 Merivale, 92; S. C. 19 Vesey, » Campbell's Lives of the Chan- 488 note. In Ogden v. Saunders, cellors, vol. iv. p. 614 note. 12 Wheaton, 365, Mr. Justice John- * 5 Term, 563. Bon refers to a case in Strange, ^ 4 Russell, 423. "and better reported in Mosely." ^ See supra. Preliminary Ke- 2 2 Swanston, 195 note; 13 marks, § 27, p. 32. Vesey, 32, 34. 606 THE CHANCERY KBPORTBKS. SECOND OR W. KELYNGE. 4 Geo. II.— 9 Geo. II. (1731-1736). Thus commonly cited to distinguish it from Kelyn^'s Crown Cases, which is otherwise known as 1st or J. Kelyn^. The Equity cases which this volume contains constitute but a small portion, not more than one-sixth part of the book. It belongs, therefore, more appropriately, to the Common-Law Reporters, under which, with its character, it has been like- wise placed.^ The work is also sometimes quoted ^ as " Rep. of Sel. Cas. in Ch. ; " likewise as " Hardw. ; "^ likewise as " Cases King's Bench temp. Lord Hardwicke." * (Edns. : 1764. This edition was reprinted in 1873, 8to.) CASES TEMPOBE TALBOT. 7 Geo. II.— 11 Geo. II. (1734-1738). Talbot ! whom lawyers and statesmen and poets have alike delighted to honor ; whom Lord Kenyon styled a man of "consummate knowledge,"^ and Willes, "a very great Chancellor ; " ^ whose name, said Mr. Burke, will be respect- able in England while the glory of the nation forms any part of its concern ; and whose perennial loveliness of character the Poet of The Seasons has sung in strains which can never die ! As a Statesman ; as a Judge ; in the Senate and the councils of his prince ; as a patron and friend and judge of letters and the arts ; in the pleasing light of domestic life, and in wider bounds, as "a friend to human kind," — his career is indeed resplendent with honor and fame. 1 Supra, p. 431. * 1 W. Blackstone, 208. 2 See 2 Equity Cases Abridged. « 1 Cox, 248. " 1 Sessions Cases, 2d ed. pp. 150, « Willes, 472. 179. CASES TEMP. TALBOT. 507 It is, I presume, as a great constitutional statesman that Lord Talbot's name most deserves to be immortal ; and that as a Judge he was, perhaps, like our own Tilghman, not less to be admired for what he was than by what he said. Un- doubtedly, everywhere in the Cases temp. Talbot you see the purest and most steady intelligence, united with affection unfailing for the justice of the case, and with a vigor and comprehension of mind that reached iit once the yet higher justice of the law. I mean no shade of disrespect to those excellent decisions, which I never read but with admiration and delight. But speaking with the discriminating truth of criticism, I should not say that you see in them, by eminence, that transcendent power which should place Lord Talbot in the Une of great Chancellors, — among men, I mean, of " the majestic sense ; " with Nottingham and Hardwicke and Thurlow, Marshall and Gibson ; men of that order who never fail to make a science where they do not find one, and whose writings no man reads without recalling Bacon's lan- guage of the " wit of elevation situate as upon a cliff." As a Chancellor he was great perhaps in the particular, rather than in the general, and too perfect a Judge to have ever allowed himself to be a splendid philosopher. Lord Talbot presided in Chancerj^ but for a short time, having been taken from the world in the very vigor of his age. The work to which I have already referred, the Cases temp. Talbot, does not comprise all his decisions ; many are found in 3 Peere Williams, 228-418, and many cases cited (from MSS.) in other books. The first two hundred and seventeen pages of the Cases temp. Talbot are by Mr. Alexander Forrester, a practitioner of repute at the equity bar. Forrester reported both before and long after the time of Lord Talbot, as appears in Hoven- den's Supplement to Vesey, Jr., and in West's Hardwicke. Notices of him may be found in Walpole's Memoirs of the time of George III. (Philadelphia edition of 1845, pp. 46, 508 THE CHANCERY EEPOETERS. 65, 193, 210, 313), and his name signed as counsel to printed briefs in Brown's Parliamentary Cases. I find in various cases ^ connected with copyright a ref- erence to a suit of Mr. Forrester v. Walter, 18 June, 1741, in which an injunction was granted and acquiesced in for printing Mr. Forrester's notes, which had been copied by the clerk of a gentleman to whom he lent them, surreptitiously and without his consent. It would thus appear that the work was not designed for the press, in the form, at least, in "which it appeared ; and Lord Campbell, in his Lives of the Chancellors,'^ regards it as an insufficient monument to Lord Talbot's juridical fame ; and has spoken of it, from the cause 1 have mentioned, perhaps, in a tone of disparagement. Mr. Welsby characterizes it more truly, I think. "Lord Tal- bot's decisions," says he,^ " exhibit, indeed, in the form in which we have them, little of the eloquence so highly rated by his contemporaries, and which the reporters of that day, de- voted entirely to the illustration of the legal doctrines of the cases, would perhaps have deemed an incongruous and im- pertinent superfluity ; but they display a strong and ready grasp of facts, a thorough intimacy with legal principles and authorities, and an eminently clear and logical exposition of them, — his judgments being invariably accompanied by a statement, more or less in detail, of the reasons upon which they were grounded. They retain an authority almost un- touched by the dissent of later Judges." This opinion is confirmed by other writers.* 1 4 Burrow, 2331, 2340, 2378; sional knowledge and accuracy, 2 Eden, 328 ; 2 Brown's Parliamen- possessed little skill ip composition, tary Cases, 138, London, 1803 ; 3 so that he gives us a very faint no- Swanston, 674 ; 1 W. Blackstone, tion of the lucid reasoning and fe- 302; Eden on Injunction, 332. licity of illustration, universally as- 2 Vol. iv. p. 666. " His chief re- cribed to the Judge whose fame he porter is Forrester, a barrister who ought to have perpetuated." practised before him, and has left s Lives of Eminent Judges, us an 8vo volume entitled Cases p. 270. tempore Talbot. This gentleman, ^ 4 Kent's Commentaries, 493 ; 1 with an adequate share of profes- Vesey, Jr., by Sumner, Boston, CASES TEMP. TALBOT. — WEST. 509 Lord Kenyon, in one of his letters,^ speaks of " Hawkins's Reports in the time of Lord Talbot." What book does he refer to ? This book is sometimes cited as Forrester.^ (The best edition of the Cases temp. Talbot is the 3d, by Mr. John Griffith Williams ; mistaken by Lord Henley, for- merly Mr. Eden,^ for Serjeant John Williams, the well-known editor of Saunders's Reports. This 3d is in 8vo, 1792, re- printed nicely on fine linen paper at Dublin, 1793. There are two former editions, one in folio, 1741, the enjoined one, I suppose, and another in the same shape in 1753.) WEST. 9 Geo. 11.-13 Geo. II. (1736-1740). This book was first published in 1827, from original MSS., said to be by Lord Hardwicke himself. It is a compilation of cases during that period already reported in Atkyns, &c., with the addition of some from Lord Hardwicke's and Mr. Forrester's MSS., and improvements to almost all from the same source and the Register's book. It was designed to be only the beginning of a work that, upon the same plan, should comprehend the whole time of Lord Hardwicke's presiding in Chancery. It is to be lamented, through want 1844, p. X ; preface to Mr. Hoven- end ; of these I have not heard the den's notes ; Brooke's Bibliotheca name of the reporter. Legum, 221; and see 1 Burrow, 43; "2 Washington, 138; and see 1 Id. 47; 5 Id. 2699. Burrow, 43. 1 Townsend's Lives of Twelve ^ In his edition of Brown's Chan- Judges, vol. i. p. 122. I think eery Cases, vol. iii. p. 70 note o. there is a misprint in Lord Ken- Mr. John Griffith Williams was the yon's letter of this name, unless, in- editor, A. D. 1796, of a new and en- deed, the reference be to that part larged edition of Harrison's Chan- of the Cases temp. Talbot after page eery Practice . 217, where Mr. Forrester's cases 610 THE CHANCERY REPOETEES. of encouragement, I suppose, that the work was not continued ; for as far as it goes it is of great value, owing principally to its superior authenticity. It is exceedingly difficult, however, to make the profession refer to even good reports published long after the time when the cases were decided ; especially if other reports, even inferior ones, have got prior peace- able possession of the professional field. ATKYNS. 9 Geo. H.— 28 Geo. II. (1736-1755). The uncommon abilities of Lord Hardwicke, whose name fills so large a space in the history of equitable jurispru- dence, render interesting even imperfect memorials of his de- cisions : for but as a faint picture must we, unhappily, regard all the records which transrnit his judicial decrees to poster- ity.^ Chief Justice Best, in one place,^ speaks of Atkyns as " a more accurate and more discreet reporter than Vesey," to which slight praise he may or may not be entitled. The King's Bench, it is certain, once forbade counsel to cite Atkyns ; ^ and both Buller and Chief Justice Sir James Mansfield have expressed their vexation at the incorrect and 1 The reader who desires to see Council-board until after fullest the full mental stature of Lord consultation with the Chancellor. Hardwicke will read with pleasure In fact, it is obvious that in every not only Mr. Harris's Life of Hard- great emergency reliance was had wicke, but also Archdeacon Coxe's on hiyn for extrication. And while Life of Sir Robert Walpole, and we may safely believe that in the the Memoirs of Mr. Pelham's ad- law was the centre of his thoughts ministration, by the same author, and the home of his mind, we must and the recently published letters of admit, too, that as a statesman, fit the elder Pitt. In the many years to legislate for an empire, he was of party conflict and high enter- scarce less great than in that de- prise, during which Lord Hard- partment where the world had called wicke held the seals of England, it him, as yet, unequalled, would appear as if few important '^ 2 Bingham, 508. measures were brought before the » 1 W. Blackstone, 571. ATKYNS. 511 slovenly way in which his notes were taken.' Mr. Justice Green, of Virginia, speaks of his mode of reporting ^ as " blun- dering and confused." Text-writers^ and counsel at the bar* have spoken in the same way of Lord Hardwicke's reporters.^ Of all these reporters, Atkyns, Vesey, Sen., and Ambler, it is true enough that their style of reporting is jejune in the extreme, presenting frequently a defective state of facts ; that the arguments, both of counsel and court, are often far from lucid, and that even the decree is sometimes wrongly given. Such censures are, however, more applicable to the old editions of these reporters ; for among the inappreciable services of the late Earl of Eldon to the Chancer}'- jurispru- dence of England are to be numbered his successful exer- 1 6 East, 29 note; 5 Taunton, 64. To form some idea of the way in which Lord Hardwicke's decrees have been transmitted to us by At- kyns and Ambler, compare the re- ports of Hill V. Adams (2 Atkyns, 208, and 1 Ambler 6, under the name of Swannock v. Lyford) with a report in 3 Hargrave & Butler's Coke Littleton, note 1 to page 208 a. 2 2 Leigh, 60. ' 1 Kent's Commentaries, 494 ; 2 Wooddeson, 862; g Kyd on Cor- porations, 189 notes. ^ 3 Kidgeway's Parliamentaiy Cases, 240. 5 To form some idea of the im- perfect character of these reporters, see the report of Bates v. Dandy, in 3 Russell, 72 note, from Lord Colchester's MS., and compare it with the report of the same case as given in Atkyns, vol. ii. p. 206. In a speech of the Earl of Eldon on Chancery Reform, 28th of April, 1836, as given to us in Hansard's Debates, voL xxxiii., 3d Series, p. 406, the Earl is represented as saying that Lord Hardwicke's judg- ments " were not delivered at the time the case was heard, nor were they delivered at a subsequent pe- riod upon what might be recollected of the circumstances, or upon what might be recalled to the mind by a casual reference to the case, but they were written by his own hand and de- livered by him from what he had so written." Whatever Lord Eldon said on this subject I should believe ; and judgments fully written out in a few cases, including Rex v. Burridge (see supra, p. 500), we know in this country that Lord Hardwicke did give. At the same time, if his usual practice was to deliver writ- ten opinions, it would be very inter- esting to us here to know what has become of these opinions. Have they an existence now ? If so, where ? 512 THE CHANCERY EEPOETERS. tions to present, through modern and improved editions, the records of his predecessor's judgments. Gary, Tothill, Free- man, Vernon, the Cases temp. Talbot, Peere Williams, At- kyns. Ambler, Vesey, Sen., and Brown, have all within the time of Lord Eldon been presented anew to the profession ; while the reports of Lord Kenj'on, Mr. West, Mr. Ridgeway, Mr. Cox, Mr. Eden, and Mr. Swanston ^ give to us, now for the first time, decisions made generations ago. His Lord- ship's veneration for precedent ^ and the deferential spirit of inquiry, which marked his mind, not less than its self-de- pendence and creative power, led counsel at his bar constantly to search the Register's books for cases reported in print. And a taste for this research was thus generated and has grown up in England, with the happiest effects upon modern jurisprudence.^ Atkyns's family name was Tracy, to which he added Atkyns. He is hence sometimes called Tracy Atkyns. He was Cur- sitor Baron of the Exchequer ; an office for the nature of which see Wood's Institute, 9th ed., 487 ; 2 Hughes's Abridg- ment, 872. He died July 23, 1773. (Edns. : One in 1765-8, 3 vols. fol. : one in 1781-2, 3 vob. royal 8vo ; a 3d in 1794, 8vo, much improved by Mr. San- ders, author of the Essay on Uses and Trusts. This excel- lent edition has entirely superseded the two former, and so much increases the value of Atkyns, that this reporter was reprinted, in 1826, in this country.*) 1 Appendix to Reports in vols. ii. justice to Lord Hardwicke than and iii. Atkyns or Vesey, and is said, upon '^ For instances of Lord Eldon's reference to tlie Register's books, to minute examinations of records, see be found more correct. (Lives of Law Review, vol. iii. p. 363. the Lord Chancellors and Keepers, 2 See infra, tit. " Yesey, Senior." vol. v. p. 50 note.) It is also known * Lord Campbell mentions that that Lord Hardwicke himself kept he has in his possession four 4to pretty good notes of liis decisions, vols, of Lord Hardwicke's decisions. These are yet preserved, and have beautifully written by Mr. Jodder- been resorted to with great good ef- ell, an eminent Chanceiy barrister; feet to correct his reporters. See that this gentleman often does more 4 Vesey, 689. AMBLEJB. 513 AMBLER. 10 Geo. n.— 24 Geo. III. (1737-1783). Although Mr. Ambler, according to Lord Eldon,^ whose statement may of course be taken as absolute verity on such a subject, had a very considerable knowledge of the decisions of his own time, and was undoubtedly a very respectable lawyer, the reports which bear his name never enjoyed, in the form in which they were first pub- lished, — that is to say, in folio, London, 1790, and 8vo, Dublin, in the same year, — a high reputation.^ The facts of most of the cases, or " the cases" as the old Books call them, are stated shortly and defectively, — one of the worst defects that reports, and especially Chancery Reports, can have. In many instances the language of the Judges was so erro- neously reported that false ideas were given even of the points decided. The only report given in some of the most important cases in the book was a short memorandum of the point determined. Indeed, embracing as they do a term of nearly fifty years, and professing to give to us the decisions of five Chancellors, of several Masters of the Rolls, and of more than one body of Lords Commissioners, it need not be said that his Reports, in less than eight hundred pages, were necessarily short.^ Of Lords Hardwicke and Northington, two of Mr. Ambler's Lord Chancellors, we have other and more valuable contemporary records ; and the loss of Lord Bathurst's cancellarian wisdom is not a great one. He is, however, the principal reporter of Lord Camden, the most respectable by far of the Whig Chancellors, and indeed a very interesting character. The " Reminiscence " which ^ 19 Vesey, 12. est case (p. 581) is in that year. 2 2 McCord's Chancery, 313. One (p. 520) is in 1725, one (p. « In actual fact, the cases in 582) in 1731. The latest (p. 776) Ambler run from 1716. The earli- is in 1783. 33 614 THE CHANCERY EEPOBTERS. Charles Butler leaves us of the Earl's decisions, as delivered, causes a regret that they should be presented to us in a mode so defective, dry, and dull. " I distinctly remember," says Mr. Butler,^ " Lord Camden's presiding in the Court of Chan- cery. His Lordship's judicial eloquence was of the colloquial kind, extremely simple, diffuse but not desultory. He intro- duced legal idioms frequently, and always with a pleasing and great effect. Sometimes, however, he rose to sublime strains of eloquence, but the sublimity was altogether in the sentiment, the diction retained its simplicity ; this increased the effect." Ambler became by a new and much improved edition, given to the profession, in 1828, by Mr. Blunt, a more valu- able reporter than he had been. (Edns. : Fol., London, 1790 ; an 8vo, Dublin, same year j Blunt's London, 1828, 2 vols. 8vo.) BARNARDISTON. 13 Geo. II.— 15 Geo. II. (1740-1741). Foe the recovery of Barnardiston from one of Lord Mansfield's ill-considered censures, see supra, p. 423, Com- mon-Law Reporters, tit. " Barnardiston." RIDGEWAY'S HARDWICKE. 18 Geo. II.— 20 Geo. II. (1744-1746). Foe an account of this work, see supra, p. 434, Common- Law Reporters, tit. " Ridgeway's Hardwicke." 1 Reminiscences, Part I. p. 115, Campbell's Lives of the Lord Chan- New York, ed. 1825. Quoted in cellors and Keepers, vol. v. p. 263. VESEY, SENIOB. 615 YESEY, SENIOR. 20 Geo. II.— 29 Geo. II. (1747-1756). Much the best edition of these Reports is that by Mr. Belt, in 3 volumes, 8vo, 1818, including a supplement in 1825. Mr. Belt made a laborious examination of the decrees and orders as found in the Register's books ; corrected sev- eral of the statements in the original edition; added some MS. cases ; and, in short, revised and improved the whole work. The circumstances under which the volumes came before the public are given to us as follows in the authentic Life of Lord Eldon, by Horace Twiss.i " Mr. Belt, a gentleman of the Chancery bar, happened to men- tion, in Lord Eldon's hearing, that he had prepared with great labor some notes on the Reports of the elder Vesey. ' You should publish them,' said the Chancellor. ' My Lord,' replied Mr. Belt, ' I have offered them to the booksellers ; but they will not take the risk of the printing, and I cannot afford it myself.' ' The notes ought not to be lost,' rejoined Lord Eldon ; ' let me know what the printing would cost.' On learning the probable expense, which was estimated at £200, Lord Eldon sent Mr. Belt a check for the amount. The work was successful ; and when it had repaid its expenses, Mr. Belt came to Lord Eldon, and proposed to repay Mm the £200. ' No, no ! Mr. Belt,' said the Chancellor, ' I wish to have the pleasure of making jour work a present to the profes- This edition, which has been reprinted in the United States, has quite superseded the older ones of 1771-73, 2 vols, fob, and 1788, 2 vols. 8vo. 1 Vol. iii. p. 483. 516 THE CHANCEEY KEPOETEKS. KENYON. 26 AND 27 Geo. II. (1753). CoJTTAiNiNG decisions of Lord Hardwicke, and edited by Mr. Hanmer. See supra, p. 445, Common-Law Reporters, tit. " Kenyon." EDEN. 30 Geo. II.— 7 Geo. III. (1757-1767). LoED Campbell, in a Life of his noble predecessor, Lord Northington,^ thus remarks of the Earl's character as a Chancellor, and of his decisions contained in these vol- umes : — " He acquitted himself respectablj'' ; but he was contented if he could continue to fill the office, escaping censure, without aiming at great reputation. He did not follow the example of the fathers of equity, Lord Nottingham and Lord Hardwicke, who on coming to the Great Seal, notwithstanding much previous familiarity with the business of the court in which they were called upon to preside, entered upon a laborious and systematic course of inquiry and of study to qualify themselves for their new situation, that they might discharge its duties in a manner satisfactor}' to their own minds, and in the hope of being permanentlj' applauded as consummate magistrates. He was satisfied with the stores of professional learning, not inconsiderable, which he had laid in, and with be- stowing a reasonable share of pains on the different cases which successively came before him. He alwaj's took full notes of the arguments of counsel, and he investigated important questions with much research. Sometimes he wrote out elaborate judgments with his own hand. . . . " For a long interval after his death, the proceedings of the Court of Chancery in his time had been very insufficiently reported, ' Lives of the Lord Chancellors and Keepers, vol. vi. pp. 316-318, 5th ed. EDEN. — cox's CHANCEEY CASES. 517 and when I first entered the profession there were only traditionary recollections of his judgments, as of his jests ; ^ but a few years ago the pious labors of his grandson, my most amiable and accom- plished friend, the late Lord Henley, from the Chancellor's own MSS., and from notes taken by several eminent counsel who had practised under him, produced two volumes of his decisions, which ' greatly raised his reputation with those best qualified to estimate it.' These show him to have been very bold and very vigorous, and generally very sound, but they are certainly wanting in the depth of thought, in the logical precision, and in the extreme cau- tion which distinguished the decisions of his predecessor." Lord Kenyon, however, whose authority on any point of law or character would have more weight in America, per- haps, than Lord Campbell's, speaks highly, in every way, of Lord Northington ; and when a then recent case of his own court was cited, from the Term Reports, before him, — a deci- sion from Lord Northington, from Ambler, being cited on the other side, — Lord Kenyon said that, sitting at Nisi Prius, he was not willing to hold anything contrary to the recent decision, but he stated further that " he was disposed to be of opinion with Lord Northington, who was a very great lawyer." ^ The Reports of Mr. Cox (the learned editor of Peere Williams) contain some decisions of Lord Northington, and also of Lord Hardwicke. (Edns. : — t^; 2d, 2 vols. 8vo, 1827 ; this last being the better of the two.) COX'S CHANCERY CASES. 1780-1796, inclusive. " Cases in the Cotjkt op Equity, from 1780 to 1796, inclusive, with a few of an earlier date, by Lords Hardwicke and Northington.3 By Samuel Compton Cox." ' Ambler alone had noticed him. » " The cases of a date ante- '^ 1 Espinasse, 398. cedent to 1783, via. those decided 518 THE CHANCERY BEPOETEES. Of the cases generally, Chancellor Kent says that " they are neat, brief, and perspicuous reports, of unquestionable accuracy." ' A new and greatly improved edition was pub- lished in New York, in 1824, under the superintendence of Murray Hoffman, Esq., one of the Masters in Chancery. (Edns. : 2 vols, royal 8vo, 1816 ; 1824.) by Lord Hardwicke and Lord North- the author conceives he can safely ington, are, in general, such as have rely, with the assistance of a refer- been cited or alluded to from the ence to the Register's books." — bench or the bar in the course of Preface. the argument of principal cases. ^ 1 Commentaries, 495. They are stated from notes on which ECCLESIASTICAL KEPORTERS. ECCLESIASTICAL EEPOKTERS. Wb have no ^Ecclesiastical Reports, that I recall, prior to the American Revolution, in a separated form, except a vol- ume published of late times. I give below its title. LEE (SIR GEORGE). " Reports op Cases argued and determined in the Arches and' Prerogative Courts of Canterbury, and in the High Court of Delegates: containing the Judgments of the Rt. Hon. Sir George Lee, 1752-1758 ; to which are added, in an appendix, several cases determined between 1724 and 1733. By Joseph Phillimore, LL.D." Sir George Lee, born A.D. 1700, was the fifth son of Sir Thomas Lee, Bart., of Hartwell, county of Buckingham. About 1716 or 1717 he was entered a member of Clare Hall, Cambridge, and in April, 1719-20, was removed to Christ Church, Oxford. In 1729 he was admitted an advocate at Doctors Commons. About the same time he was returned to Parliament, and from that time till his death, in 1758, re- mained a member of that body, maintaining there, in virtue of his excellent habits of business and his ability as a speaker, a position of considerable influence. In 1742, after the over- throw of Sir Robert Walpole's administration, he became one of the Lords Commissioners of the Admiralty, which situa- tion he held about two years. In 1751, the Prince of Wales, by whom he had been destined for the office of Chancellor of 522 ECCLESIASTICAL EEPOKTEES. the Exchequer, djdng, he was made treasurer to the Princess Dowager, filling that office for nearly six years. But neither political avocations nor the business of the House of Com- mons ever induced him to swerve from a close attention to his professional pursuits. And his business as an advocate was so great, and his reputation so high, that at the death of Dr. Bettesworth, in 1751, he was made Dean of the Arches and Judge of the Prerogative Court of Canterbury, by Arch- bishop Herring, in which office he remained until the 18th of December, 1758, when he expired suddenly, seated in his chair. William Lee, the Chief Justice, was his older brother. During his judicial career, he made a practice of taking notes of every case brought before him for judgment, inserting in his note-book a statement of the case, a summary of the arguments of counsel, and a precis, as it were, of his own sen- tence. Transcripts from these note-books it is which make the " Reports " given to the bar by Dr. Phillimore. These notes have the impress of care, deliberation, and sound legal attainments, and, though not worked up elegantly into the form of Reports, they make a valuable record every way of the early ecclesiastical decisions of England. To many of them Dr. Phillimore has added annotations. (Edns. : 2 vols. 8vo, 1833.) LIST OF REPORTERS, ENGLISH, IRISH, SCOTCH, COLONIAL, AND AMERICAN. Aftee the accession of George III. the Reports have a much more systematized and uniform character than those prior to that time ; and their relative merits being sufficiently known to the Profession, the instances are few where I have done more than indicate their chronological sequence. For a List of the British Foreign Colonial Reports, Mr. Heard refers the reader to Soule's " Lawyers' Reference Manual," now in the press. There is not a complete set of these Reports in this country, nor even a bookseller's catalogue, English or American, which contains more than an approximate List. A CHRONOLOGICAL LIST OF EB'GLISH EEPORTS, IN THE DIETEEENT COURTS AFTER THE AMEEIOAN REVOLUTION, A. D. 1776. HOUSE OF LORDS. Period. No. of Vols. Date of last Edition. Brown, by Tomlins . . . 1702 to 1800 8 . 1803 Dow 1812 to 1^18 . 6 . , , Bligh 1819 to 1821 3 . • • and Part 1 of Vol. IV. Bligh. New Series . . . 1827 to 1837 10 . , , and Parts 1, 2, and 3 of Vol. XL Dow and Clark .... 1827 to 1832 2 . Clark and Finnelly . . . 1831 to 1846 12 . Maclean and Robinson . . 1839 1 . West 1839 to 1841 1 . House of Lords Cases (Clark) 1847 to 1865 11 . Clark's Digested Index, in- tended as a Supplemen- tary Volume .... 1814 to 1865 1 1868 626 LIST OF EEPOKTEES. PRIVY COUNCIL. Period. Acton 1809 to 1811 and Part 1 of Vol. II. Knapp 1829 to 1836 Moore 1836 to 1862- Moore. New Series . . . 1862 to 1872 Moore. East India Appeals 1836 to 1868 No of Vols. 3 15 9 14 Date of last Edition. CHANCERY. High Cotjet op Chanceet. XBrown, by Edeni . . . . 1778 to 1794 Brown, by Belt .... 1778 to 1794 X)ox 1783 to 1796 "^Vesey, Jr. with index, and Hovenden's Supple- ment 1789 to 1816 "^Vesey and Beames . . . 1812 to 1814 Cooper 1815 Merivale 1815 to 1817 Swanston2 1818 to 1819 . 4 1819 . 4 1820 . 2 1816 . 22 1827 . 3 1818 . 1 1815 . 3 , , . 3 , , 1 Brown is spoken of in The Law Magazine, vol. xx. p. 62, as a re- porter of " singular inaccuracy." Mr. Sugden informs us that most of the cases in the notes to Brown are inaccurately reported (Treatise on Powers, vol. ii. p. 280, 6th ed.). He cannot mean, however, I pre- sume, to speak of many of those excellent notes of Mr. Eden and Mr. Belt, which give to us some most valuable cases, as in Lloyd o. Collett, vol. iv. p. 469. He refers, doubtless, to the cases in Brown's own notes. 2 Mr. F. F. Heard, in an article on " The Keporters and Text Writers," in The Southern Law Review, vol. i. p. 509, thus highly but still justly characterizes these Reports : " They are reports of cases determined during the time of Lord Eldon. The author was a man of fine literary attainments, and an ENGLISH KEPORTS. 627 Period. \°^°^ last Date of last Edition. Wilson. 3 Parts of Vol. I. and 1 Part of Vol. II. . 1818 to 1819 . 1 ^ Jacob and Walker . . . 1819 to 1821 , 2 ^ Jacob 1821 to 1822 . 1 .^Turner and Russell . . , 1822 to 1824 . 1 ^ Russell 1826 to 1829 . 5 Two Parts of Vol. V. ^ Russell and My lue . . . 1829 to 1831 . 2 ^ Mylne and Keen .... 1833 to 1835 . 3 and one or two Parts.^ .^ Mylne and Craig .... 1836 to 1848 . 5 -Craig and Phillips . . . 1841 . 1 -rPhillips 2 1841 to 1849 . 2 Hall and Twells .... 1848 to 1850 . 2 -Macnaghten and Gordon . 1849 to 1851 . 3 — J)e Gex, Macnaghten, and Gordon 1851 to 1857 . 8 -De Gex and Jones . . . 1857 to 1859 . 4 - De Gex, Fisher, and Jones . 1859 to 1861 . 4 - De Gex, Jones, and Smith . 1862 to 1865 . 4 accomplished lawyer. The volumes the law. ' Many of the cases are are among the very best of the chan- enriched by learned and accurate eery reporters. The canons of good notes, which are of great value, as reporting are rigorously observed, containing a full classification of The reporter gives a/uiZ statement of authorities and discussions of ques- the facts with an outline of the plead- tions of practical importance. ' ' ings and the substance of the argu- ' "4 Mylne &Keen, 72," is cited ments, with the authorities cited, in 3 Mylne & Craig, 430 note. ' The principal object of attention,' ' In Whitaker v. Wright, 2 Hare, he says, ' has been to represent 317, the case of Rundell v. Lord exactly the train of reasoning by Rivers, 1 Phillips, 88, is wrotigly which the court arrived at a con- cited from Turner & Phillips's Re- elusion, and connected the facts of ports, the case with the general doctrine of 528 LIST OF BEPOETEKS. CHANCERY CONTEMPORARY SERIES. Period. "^Romilly's Notes of Cases . 1767 to 1786 \)ooper, Temp. Brougham . 1833 to 1834 Donnelly 1836 to 1837 Cooper's Practice Cases . 1837 to 1838 Cooper, Temp. Cottenham . 1846 to 1847 and Parts 1 and 2 of Vol. II. No. of Vols. 1 . 1 . 1 . 1 . 1 . Date of last Edition. ROLLS COURT. Tamlyn 1829 to 1830 . 1 Keen 1836 to 1838 . 2 Beavan 1838 to 1866 . 36 VICE-CHANCELLORS' COURTS. Temp. V.-CC. Shadwbll and Kindeksley. -Haddock 1815 to 1822 . 6^ . -Simons and Stuart . . . 1822 to 1826 . 2 . -Simons 1826 to 1849 . 17 . -Simons. New Series . . 1850 to 1852 . 2 . Drewry 1852 to 1859 . 4 . Drewry and Smale . . . 1860 to 1866 . 2 . 1 Vol. vi. Maddock is sometimes death, and are by Geldart. The cited as Maddock and Geldart. The third part does not appear in the first part is by Maddock ; the sec- Philadelphia edition, ond and third appeared after his ENGLISH EEPOETS. 529 Temp. "V.-CC. Knight Betjce, Paekee, and Stuaet. w„ „e Date of Period. ^°-PJ last ^°''- Edition. Younge and Collyer . . . 1841 to 1843 . 2 . CoUyer 1844 to 1845 . 2 . De Gex and Smale . , . 1846 to 1852 . 5 . Smale and Giffard .... 1852 to 1857 . 3 . Giffard 1857 to 1865 . 5 . TeIVIP. V.-CC. WlGEAM, TUENEE, AND WOOD. Hare 1841 to 1853 . 11 . Kay 1858 to 1854 . 1 . Kay and Johnson .... 1854 to 1858 . 4 . Johnson . , 1859 . 1 . Johnson and Hemming . . 1860 to 1862 . 2 . Hemming and Miller . . . 1862 to 1865 . 2 . Temp. V.-CC. Shadwell, Knight Betjce, and Wigeam. Holt (William) .... 1845 . 2 . . . KING'S BENCH AND QUEEN'S BENCH. Douglas 1 1778 to 1784 . 4 1813-81 Durnford and East^ . . . 1785 to 1800 . 8 . 1817 ^ It is generally tnown, I pre- tained in 2d Chitty, pp. 430-714. sume, that the third and fourth vol- These are printed from the MSS. umes of Douglas's Reports were of Judge Ashhurst. Besides these published long after the first two. Reports in the King's Bench, Mr. They were prepared for the press Douglas is the author of four by Messrs. Frere and Roscoe, to volumes of cases of Controverted whom the MSS. of Mr. Douglas Parliamentary Elections,* a work were committed, — himself having which received a high tribute from ■ relinquished the design which he Hargrave. (Coke on Littleton, originally had of publishing them. 109 b, note.) Some cases in the time of Lord ^ None of the modern Reports Mansfield (chiefly between the exceed these for the care and ac- years 1780 and 1787) are con- * See ante, p. 453. 34 530 LIST OP BEPOETEES. Period. East 1801 to 1812 MauleandSelwyni . . . 1813 to 1817 Barnewall and Alderson^ . 1817 to 1822 Bamewall and Cresswell . 1822 to 1830 Barnewall and Adolphus . 1830 to 1834 Adolphus and Ellis . . . 1834 to 1840 Queen's Bench (Adolphus and Ellis. New Series) . . 1841 to 1852 Ellis and Blackburn 3 . . 1852 to 1858 Ellis, Blackburn, and Ellis . 1858 Ellis and Ellis 1858 to 1860 Best and Smith * .... 1861 to 1870 No. of Vols. 16 . 6 . 5 . 10 . 5 . 12 . 18 . 8 . 1 . 3 . 10 . Date of last Edition. curacy of finish, including great propriety of style, which they everywhere maintain. They are equally distinguished by the terse- ness and comprehensive accuracy with which the point adjudged is given in the reporters' syllabus, and by the care with which the references to cases cited have been verified before the work went through the press. They are entitled "Term Re- ports," and were published in parts at the close of each Term, and are cited as " Term Reports " or " T. K. " It has been said that they are called par excellence Va& •' Term Reports ; " but the above is the ti'ue reason why they are so called. 1 Without any specific objection to them that I know of, these Re- ports are "perhaps less cited in daily practice than almost any other Reports of modern times." (Law Magazine and Law Review, vol. ix. p. 340.) 2 The first number (21G pages or more) of Barnewall & Alderson was published in the names of Messrs. Selwyn and Barnewall, and is so cited in Andrew v. Han- cock, 1 Broderip & Bingham, 39. In a comparatively recent case, the reference to which is mislaid, the late Baron Alderson remarked that he was not responsible for the first part of the first volume of Barnewall & Alderson. s The Reports of Ellis & Black- burn are distinguished for the care and success with which extraneous matter is stripped off, and the es- sence of the case presented. Brev- ity is achieved without obscurity com- ing as the result. (London Law Mag- azine and Review, vol. ix. p. 339.) * A part of the first volume is by Ellis, Best, and Smith. ENGLISH EEPOKTS. 631 KING'S AND QUEEN'S BENCH CONTEMPORARY SERIES. -Smith (J. P.) Dowling and Ryland Manning and Rjland . Nevile and Manning Nevile and Perry . ^Perry and Davison —Gale and Davison . ^Davison and Merivale \^ Harrison and Wollaston . Willmore, Wollaston, Davison .... and Part 1 of Vol. II. Willmore, Wollaston, and and ^' Hodges and Parts 1 and 2 of Vol. II. Arnold and Hodges . . . Parts 1, 2, 3, 4, and 5 of Vol.1. Period. 1803 to 1806 1821 to 1827 1827 to 1830 1831 to 1836 1836 to 1838 1838 to 1841 1841 to 1843 1843 to 1844 1835 to 1836 1837 1838 to 1889 1840 to 1841 No. of Vols. 9 . 5 . 6 . 3 . 4 . 3 . 1 . 2 . Date of last Edition. BAIL COURT. Chitty2 1819 to 1820 . 2 Bowling 1830 to 1840 . 9 Bowling. New Series . . 1841 to 1842 . 2 1 These Reports of John Prince Smith, Esq., were introduced as part of a monthly publication called The Law Journal; and some copies of cases having been separated and bound distinctly, -with a titlepage, formed these volumes, having the aspect of ordinary reports. Besides oases in the King's Bench, the vol- umes contain a few cases in Chan- cery. The book is somewhat diflS- cult to procure. « * Not confined to cases in the Bail Court. Indeed, comparatively few are in it. The second volume, from page 429, contains cases in the time of Lord Mansfield, chiefly be- tween the years 1780 and 1787, now printed from MSS. of Judge Ash- hurst; 532 LIST OF EEPOKTEES. No. of Date of last Edition. Period. y^jj^ last Saunders and Cole 1 . . . 1846 to 1848 . 2 Dowling and Lowndes . . 1843 to 1849 . 7 Lowndes, Maxwell, and Pol- lock 1850 to 1851 . 2 Bail Court Cases (Lowndes and Maxwell) .... 1852 to 1854 . 1 Parts 1, 2, 3, 4, and 5 of Vol. 1.2 ---Harrison afadWollaston . 1835 to 1836 . 2 Willniore, WoUaston, and Davison 1837 . 1 .J Willmore, Wollaston, and =^- Hodges 1838 to 1839 . 2 Wollaston 1840 to 1841 . 1 Parts 1, 2, 3, 4, and 5 of Vol. I. COMMON PLEAS. "~^Blackstone (Henry) 3 . . 1788 to 1796 . 2 . 1837 Moore (A.) * 1796 to 1797 — -Bosanquet and Puller . . 1796 to 1804 . 3 . 1826 ' — Bosanquet and Puller, New Reports ^ 1804 to 1807 . 2 . 1826 1 These Reports are cited as Bail from Easter Term, 36 Geo. III. to Court Reports, and the form of cita- Hilary Term, 37 Geo. III. inclu- tion is " B. C. R." sive," were printed in folio, anno 2 Cited as " B. C. C." 1800. They are usually bound up " In Gibson w. Minet, 1 H. Black- with 1 Bosanquet & Puller, p. 471, stone, 590, Perryn, B., cites a pre- and very improperly placed after vious case in the same volume, as their Reports of Trinity Term, 39 "■Term Rep. C. P." Geo. III. (Bridgman's Legal Bibli- * " Reports of Cases argued and ography, 22 note), determined in the Courts of Com- ^ Cited as " N. R." and as "B. mou Pleas and Exchequer Cham- & P. N. R." ; sometimes, but im- ber, and in the House of Lords, properly, as 4 and 5 " B. & P." ENGLISH REPORTS. 583 Period. ■•Taimtoni 1807 to 1819 TBroderip and Bingham 2 . . 1819 to 1822 .Bingham 1822 to 1834 , Bingham's New Cases . . 1834 to 1840 Manning and Granger . . 1840 to 1844 Common Bench, with Index 1845 to 1856 Common Bench. New Series, . with Index 1856 to 1865 Harrison and Rutherfurd . 1865 to 1866 No. of ^t'^"^ Vols '*^' Edition. 3 10 6 7 19 20 1 COMMON PLEAS CONTEMPORARY SERIES. Marshall 1814 to 1816 --Moore (J. B.) 1817 to 1827 ^ Moore and Payne .... 1828 to 1831 "^Moore and Scott .... 1831" to 1834 Scott 1834 to 1840 Scott's New Reports ^ . . 1840 to 1845 Hodges 1835 to 1837 Arnold 1838 to 1839 Parts 1 and 2 of Vol. II. Drinkwater 1840 to 1841 Parts 1, 2, 3, 4, and 5 of Vol. I. 2 12 5 4 8 8 3 1 1 " Parke, B., has frequently ob- served of late that the 8th Taunton is but of doubtful authority, as the cases were not reported by Mr. Taunton himself. ' ' (Reporter's note to Hadley v. Baxendale, 9 Excheq- uer, 347.) "Is an apocryphal au-^ thority. It was made up from Mr. ' Justice Taunton's notes, and was not revised by him." (Per Parke, B-, in Hadley v. Baxendale, ubi supra; 23 Law Journal, Exch. 180; 18 Jurist, 358; 6 Best & Smith, 444.) 2 The 1st number (218 pages) was reported by Messrs. Taunton and Broderip, and is so cited in John Bayly Moore's Digested Index, 2d ed., London, 1821. ^ Satisfactory for consultation in every-day business, but with too much expansion and repetition. (Law Magazine and Law Review, vol. ix. p. 339.) 634 LIST OF KEPOETEKS. EXCHEQUER. No of Date of J"-"""- vou: ^'?,^.' i!.aition. '^Parker 1743 to 1767 . 1 . 1791 -^-Anstnitheri 1792 to 1797 . 3 . 1817 ■^-Forrest 1800 to 1801 . 1 . ~^Wightwick 1810 to 1811 . 1 . --^Price 1814 to 1824 . 13 . ^M'Cleland 1824 . 1 . "~~iM'Cleland and Younge . . 1825 . 1 . -^Younge and Jervis . . . 1826 to 1830 . 3 . ' — Crompton and Jervis . . . 1830 to 1832 . 2 . ^-Crompton and Meeson . . 1832 to 1834 . 2 . — Crompton, Meeson, and Roscoe 1834 to 1836 . 2 . -""Meeson and Welsby . . . 18S6 to 1847 . 16 . Exchequer Reports (Welsby, Hurlstone, and Gordon) . 1847 to 1856 . 11 . Hurlstone and Norman . . 1856 to 1861 . 7 . Hurlstone and Coltman . . 1862 to 1865 . 4 . EXCHEQUER CONTEMPORARY SERIES. '^— ■ J No of Date of Period. ^°'f last Vols. Edition. 4. Probate and Divorce Cases 1865 to 1875 . 3 6. Admiralty and Ecclesias- tical Cases .... 1865 to 1875 . 4 . . , 6. Crown Cases Reserved . 1865 to 1875 . 2 . . . III. Equity Seeies. 1. Chancery Appeal Cases . 1865 to 1875 . 10 . . . 2. Equity Cases .... 1865 to 1875 . 20 . . . The mode of citation of the Three Series of the Law Re- ports is as follows : — Appellate Series. House of Lords L. R. H. L. House of Lords, Scotch Appeals . . . . L. R. H. L. Sc. Privy Council L. R. P. C, Equity Seeies. Chancery Appeals, L. C. and L.JJ. . . . L. R. Ch. Equity Cases, M. R. and V.-CC L. R. Eq. CoMMON-LA"W Seeies. Queen's Bench L. R. Q. B. Common Pleas L. R. C. P, Exchequer L. R. Ex. Crown Cases Reserved L. R. C. C. Probate and Divorce L. R. P. & D. Admiralty and Ecclesiastical L. R. A. & E. 640 LIST OP EEPOETEES. LAW REPORTS, NEW ISSUE COMMENCING JANUARY 1, 1876. In consequence of the changes created by the Supreme Court of Judicature Acts, the Council of Law Reporting decided upon the following mode of citation of the Law Reports, commencing January 1, 1876 : — FiEST Sekies. 1 Ch. D. Second Seeies. 1 Q. B. D. which includes the Crown Cases Reserved. 1 C. P. D. 1 Ex. D. 1 P. D. which includes the Probate, Divorce, Admiralty, Ecclesiastical, Privy Council Cases, and Appeal Cases. Thied Seeies. 1 App. Cas. which includes the Privy Council Cases. LAW REPORTS, NEW ISSUE COMMENCING JANUARY 1, 1881. Since the Consolidation Act, January 1, 1881, The Law Reports, Queen's Bench Division, Vol. VI. contains cases determined by that Division, and includes cases determined by the Common Pleas and Exchequer Divisions of the High Court of Justice; and by the Court of Appeal on appeal therefrom, and by the Court for Crown Cases Reserved. The mode of citation of the Three Series of the Law Re- ports, commencing January 1, 1881, is as follows : — FiEST Seeies. 16 Ch. D. english eepoets. 541 Second Series. 6 Q. B. D. 6 P. D. Thikd Series. 6 App. Cas. LAW REPORTS. INDIAN APPEALS. Cases in the Privy Coimcil on Appeal from the East Indies. This series was commenced in 1874. Seven volumes have been published. Vol. VIII. is now in coarse of publication. A supplemental volume, containing the judgments of the Privy Council in Indian Appeals from 1872 to 1873, being the period between the close of Moore's Reports and the be- ginning of the Law .Reports, has been recently published. NISI PRIUS. Date of Period. ^?- °* last Vols. EdiLion. Peake i 1790 to 1794 . 1 . 1820 Peake's Additional Cases ^ . 1795 to 1812 . 1 . 1829 'Espinasse3 1793 to 1807 . 6*. . . ' " My brother Peake's Reports given their opinions in a case, says, are remarkably correct. I went the "lam tempted to remark for the same circuit, and was in the habit benefit of the profession, that 'Es- of taking notes. On many ocoa- pinasse's Reports, in days nearer sions I have compared the cases, their own time, when their want of and know his to be particulai'ly ac- accuracy was better known than it curate." (C. J. K. B., quoted by is now, were never quoted without Marvin, Legal Bibliography, p. 559, doubt and hesitation, and a special from Manning's Nisi Prius Digest, reason was often given as an apology Preface.) for citing that particular case. Now 2 Cited as " Peake Add. Cas." they are often cited as if counsel ' In Small v. Nairne, 13 Q. B. thought them of equal authority 844 (and see 5 Ellis & Blackburn, with Lord Coke's Reports. " 'Espi- 453), Lord Dennian, after the nasse had previously to these re- Judges of the Queen's Bench had marks of Lord Denman been styled * The sixth volume, very thin, separately reprinted at New York, is not contained in Day's American in 1825. edition, in three volumes. It was 542 LIST OF EEPOETEES. Period. CampbeUi 1808 to 1816 Holt 1815 to 1817 Starkie 1815 to 1822 and Part 1 of Vol. III. Gow 1818 to 1820 Dowling and Ryland . . . 1822 to 1823 One part of Vol. I. Ryan and Moody .... 1823 to 1826 Carrington and Payne ^ . . 1823 to 1841 No. of Vols. 42 . 1 . 2 . 1 . 1 . 1 . 9 . Date of last Edition. by the late John Bradford Wallace, Esq., "a not very accurate Nisi Prius reporter" (Remarks on the Law of Bailment, 16 American Ju- rist, 274), himself " an accurate writer of our country," said Mr. Justice Thompson of the Supreme Court of Pennsylvania, in citing his criticism with approval. (See Phila- delphia Legal Intelligencer, vol. XX. p. 117.) ' " When I was a Nisi Prius reporter," says Lord Campbell, "I had a drawer marked ' Bad Law,' into which I threw all the cases which seemed to me improperly ruled. I was flattered to hear Sir James Mansfield, C. J., say, ' Who- ever reads Campbell's Reports must be astonished to find how uni- formly Lord Ellenborough's deci- sions were right.' My rejected cases, which I had kept as a curios- ity, not maliciously, were all burnt in the great fire in the Temple when I was Attorney-General." (Lives of The Chancellors, vol. iv. p. 458.) " We may depend upon the ac- curacy of this reporter." Per Black- burn, J., in Redhead v. Midland Railway Co. 8 Best & Smith, 401. The greatest defect in these Re- ports is, perhaps, too short state- ments of the case. These cnrt statements — as dispensing with that long-continued close intentio mentis of the ancients, which we call " at- tention " — are veiy agreeable to a reader who is reading a book through in course, or when, referring to a particular case, he refers to it only for a general idea about it; but for the judge or lawyer who refers to a case in order to see how far it affords a precedent in one now before him, and where he desires to compare not only outline, but the filling in, they are unsatisfactory and dangerous. We are not surprised, therefore, to hear an eminent judge say, as did Maule, J., in 1851-2, when a case was cited from 3 Campbell, 403. "It is . . . very shortly reported; and we have frequently found, in referring to the attorneys whose names are mentioned by the re- porter at the end of the cases, that the real circumstances of the case explain the apparent anomaly of the decision." ^ The volumes of the last edition are dated: Vol. L 1833; Vols. 11. III. and IV. 1818. ' Of Carrington and Payne, and of ENGLISH REPORTS. 543 NO of Dateof Moody and Malldn . . . 1827 to 1830 . 1 . . ' T Moody and Robinson . . 1831 to 1844 . 2 , . , Carrington and Marshman . 1840 to 1842 . 1 , . . Carrington and Kirwan . . 1843 to 1850 . 2 . . . and Parts 1 and 2 of Vol. III. Foster and Finlason . . . 1858 to 1865 . 4 . . . MAGISTRATES' CASES. Caldecott 1776 to 1785 . 1 . . . Nolan 1791 to 1793 . 1 . . , Bowling and Ryland . . . 1822 to 1827 . 4 . . , Manning and Ryland . . 1827 to 1830 . 3 . . . Part 1 of Vol. III. Nevile and Manning . . . 1832 to 1836 . 3 . . . Nevile and Perry .... 1836 to 1837 . 1 . , . Parts 1 and 2 of Vol. I. Bittleston and Wise (New Magistrates' Cases) . . 1844 to 1850 . 4 . . . Vols. III. and IV. by Bit- tleston and Parnell New Practice Cases. (Wel- ford, Bittleston, Parnell, &c.) 1844 to 1849 . 4 . . . and Parts 1 and 2 of Vol. III. Carrow, Hamerton, Allen, and Otter (New Sessions Crises) 1844 to 1851 . 4 . . . Parts 1, 2, 3, and 4 of Vol. IV., by Prideaux and Cole Cox's Magistrates', Munic- ipal, and Parish Law Cases and Appeals . . 1860 to . 12 . . . 'Espinasse, Mr. Justice Blackburn stated, or that the opinion of the once observed, " Neither reporter Judge was rightly understood." has such a character for intelligence Redhead v. Midland Railway Co. 8 and accuracy as to make it at all Best & Smith, 401 ; 9 Best & Smith, certain that the facts are correctly 531 ; Law Reports, 4 Q. B. 385. 544 LIST OP EEPOETEES. RAILWAY AND CANAL CASES. Nicholl, Hare, Carrow, Oli- ver, Beavan, and Lefroy ^ Beavan and Walford's Par- liamentary Cases relating to Railways Parts 1 and 2 of Vol. I. Neville and Macnamara . . Period. 1835 to 1855 1846 1855 to 1881 No. of Vols. Date of last Edition. MERCANTILE CASES. Danson and Lloyd Lloyd and Welsby 1828 to 1829 1829 to 1830 1 1 PATENT CASES. Carpmael 1602 to 1840 Webster 1602 to 1855 and Part 1 of Vol. IL Davies 1785 to 1816 Macrory 1852 to 1855 Two Parts published. 1«44 1816 ELECTION CASES.' iiiell Fraser Philipps . Luders Peck well . Corbett and Dai Cockburn and Rowe Perry and Knapp . 1 Cited as " Railw. Cas." '' When these cases were cited, 1844, in the Common Pleas, Withern V. Thomas, 7 Manning & Granger, 4, Chief Justice Tindal told counsel 1776 to 1777 2 1782 1 1785 to 1790 3 1802 to 1806 2 1819 1 1833 1 1833 1 that, " so far as the reasoning in these cases went, it might be proper to cite them, but not as authori- ties." ENGLISH EEPOETS. 545 Knapp and Ombler . . Falconer and Fitzherbert Barron and Austin . . Barron and Arnold . . Power, Rodwell, and Dew Wolferstan and Dew . . Wolferstan and Bristowe O'Malley and Hardcastle Period. 1834 1837 1842 1843 to 1846 184T to 1856 1856 to 1858 1859 to 1864 1869 to 1880 No. of Vols. 1 1 1 1 2 1 1 3 Date of last Edition. REGISTRATION APPEAL CASES. Lutwyche Keane and Grant .... 1843 to 1853 . 2 Hopwood and Philbrick . 1854 to 1862 . 1 Hopwood and Coltman . . 1863 to 1878 2 Coltman 1880 to Parts 1 and 2 of Vol. I. Botti SETTLEMENT CASES. . . 1761 to 1827 1822 to 1831 b J. tJ. 9 1832 to 1880 49 1880 to 1856 52 1831 to 1832 2 1837 to 1854 31 1855 to 1867 24 1844 to 1849 . 2 1853 to 1855 3 The Law Journal .... The Law Journal, New Series The Legal Observer . Supplement , . The Jurist .... The Jurist, New Series New Practice Cases . and Parts 1 and 2 of Vol. IIL Common-Law Reports ' This book first appeared in Pratt, of the Inner Temple. Mr. 1771, again in 1773, 1793, and 1800. Green, in remarldng on the book, It was afterwards edited by Francis says that it is really " a very good Const, Esq., the fifth edition in book of reports, original in a great three volumes, 1807, and in 1827, measure." in two volumes, by Mr. John Tidd 35 646 LIST OF EEPOETEKS. No. of Date of last Edition. Period. y^j^ last Equity Reports .... 1853 to 1855 . 3 The Law Times .... 1843 to . 71 The Law Times Reports, New Series 1859 to . 44 The Weekly Reporter . . 1852 to . 29 The Solicitors' Journal . . 1857 to . 25 Weekly Notes 1866 to . 15 New Reports 1862 to 1865 . 6 Cox's Joint Stock Cases . . 1864 to 1872 . 5 English Law and Equity Reports ^ 1850 to 1857 . 40 MISCELLANEOUS CASES. Book of Judgements ^ . . 1655 to 1675 . 2 Conroy's Custodiam Re- ports 1795 . 1 Rowe's Parliamentary and Military Cases .... 1792 . 1 ISLE OP MAN.5 Bluett's Notes of Cases . . 1720 to 1847 . 1 . . . ^ This is an American reprint, In Real, Personal, and Mixt Actions, each volume of which contains Ke- and upon the Statute. Latin, small ports of English decisions reprinted 4to. London, 1674. George Townes- f rom the regular Reports and from end, the editor, in the Preface says : the difierent Law Journals. "I stile this 'A Second Book of 2 "Judgements, as they were Judgements,' there being a former upon solemn arguments given in the ' Book of Judgements,' published in Upper Bench and Common Pleas, the year 1655." upon the most difficult points in all These are cited as " First " and manner of actions." In English, " Second Book of Judgements." small 8vo. London, 1655. ^ As to the jurisdiction of the The pages are wrongly numbered English courts over this Island, see from 128 to 232, and from 336 to Christian v. Corren, 1 P. Wms. the end. Several precedents are 329; In re Crawford, 13 Q. B. 613; twice printed. In re Brown, 42 L. J. Q. B. 193; 4 A Second Book of Judgements. Stephen Comm. 98, 99, 8th ed. A CHRONOLOGICAL LIST OF EEPOETS USr THE lEISH COUETS. APPEALS AND WRITS OP ERROR. Period. Eidgeway 1784 to 1T96 CHANCERY, Wallis, by Lyne 1766 to 1791 Schoales and Lefroy 1802 to 1806 Ball and Beatty 1807 to 1814 Beatty 1814 to 1830 Two parts of Vol. I. Molloy 1827 to 1829 and one Part of Vol. III. Lloyd and Goold, temp. (Plunkett) 1834 to 1839 Drury and Walsh 1837 to 1840 Connor and Lawson 1841 to 1843 Lloyd and Goold (temp. Sugden) 1835 . . Drury and Warren (temp. Sug- den) 1841 to 1843 Drury (temp. Sugden) .... 1843 to 1844 Jones and La Touche (temp. Sug- den) 1844 to 1846 Drury (temp. Napier) .... 1858 to 1859 No. of Vols. 1 2 2 1 648 LIST OP EEPOETBES. ROLLS COURT, Period. No. of Vols. Hogan 1816 to 1834 . . 2 Sausse and Scully 1837 to 1840 . . 1 Flanagan and Kelly 1840 to 1842 . . 1 KING'S BENCH AND QUEEN'S BENCH. Vernon and Scriven 1786 to 1788 . . 1 Ridgeway, Lapp, and Schoales . . 1793 to 1795 . . 1 Fox and Smith 1822 to 1824 . . 2 Smith and Batty 1824 to 1825 . . 1 Batty 1825 to 1826 . . 1 Hudson and Brooke 1827 to 1831 . . 2 Alcock and Napier 1831 to 1833 . . 1 Cooke and Alcock 1833 to 1834 . . 1 One Part of Vol. I. Jebb and Symes 1838 to 1841 . . 2 Jebb and Bourke 1841 to 1842 . . 1 COMMON PLEAS. Smythe 1839 to 1840 . . 1 NISI PRIUS. Armstrong, Macartney, and Ogle . 1842 . . 1 Blackham, Dundas, and Osborne. 1846 to 1848 . . 1 EXCHEQUER. Hayes 1830 to 1832 . . 1 Hayes and Jones 1832 to 1834 . . 1 Jones 1834 to 1838 . . 2 Jones and Carey 1838 to 1839 . . 1 Two Parts of Vol. I. Longfield and Townsend . . . 1841 to 1842 . . 1 IRISH KEPOKTS. 549 REGISTRY CASES. Period. Irish Chancery, 17 vols. ) T • n /~( T -fiT 1 ? • 1850 to 18oo Irish Common Law, 17 vols. J No. of Vols. Welsh 1832 to 1840 . . 1 Alcock 1832 to 1841 . . 1 CROWN CASES. Jebb 1822 to 1840 . . 1 ECCLESIASTICAL. Milward 1819 to 1843 . . 1 CIRCUIT CASES. Crawford and Dix, Abridged Cases 1837 to 1838 . . 1 Crawford and Dix 1839 to 1846 . . 3 Cases on the Six Circuits . . . 1841 to 1843 . . 1 IRISH REPORTS. Irish Equity 13 vols, j _ 1838 to 1850 . . 26 Irish Law, 13 vols. ) 34 LAW REPORTS. The Reports of the Irish Courts are now published under the authority of the " Council of Law Reporting in Ireland." They commenced with the Michaelmas Term 1866, and were issued in Two Series, to 1878. There are eleven volumes in each Series. 550 LIST OP KEPOETEES. I. Equity Seeies. Embracing the Courts of Chancery and Appeal in Chan- cery, Rolls Court, Vice-Chancellor's Court, Landed Estates Court, Court of Bankruptcy and Insolvency, Court of Admi- ralty, Court of Probate, and Ecclesiastical Courts. « II. Common-Law Seeies. Embracing the Court of Queen's Bench, Court of Common Pleas, Court of Exchequer, Court of Exchequer Chamber, Court for Crown Cases Reserved, Consolidated Chamber and Registry Appeals. These Reports are cited as : — I. R. 1 Eq. and I. R. 1 C. L. THE LAW REPORTS (IRELAND). In two annual volumes ; commencing in 1878 and contin- ued to the present time. 1. The Chancery and Probate Divisions and Court of Bank- ruptcy. 2. The Queen's Bench, Common Pleas, and Exchequer Divisions. These reports are cited as : — 1 L. R. Ir. REPORTS IN ALL THE COURTS. T>„,:„.i No. of Period. ^^,^^ Law Recorder. First Series . . 1827 to 1831 Glascock 1831 to 1832 Law Recorder. Second Series . 1833 to 1838 Irish Jurist 1849 to 1855 New Series 1855 to 1866 Irish Law Times 1867 to 4 1 6 7 11 IRISH REPORTS. 551 MISCELLANEOUS. Howard's Special Cases relating to Popery. Published in 1775.1 Conroy. Custodiam Reports. Published in 1795. 1 Mr. Prime-Serjeant Fitz Ger- ald, who, in 1794, referred to this book in the Irish Parliament,* ap- pears to have spoken of it disparag- ingly. But the Attorney-General, Wolfe, somewhat indignantly called him to account. " Some imputa- tion," says the latter, -f " has been endeavored to be cast upon the book, but every man conversant in the subject knows that the cases were so decided. The cases in that book, down to the year 1752, were printed from a manuscript which was handed about from one lawyer to another, — the late Mr. Malone, Mr. Harwood, and others. Howard, 37. 45. * 3 Ridgeway's Parliamentary Cases, t 3 Ridgeway's Parliamentary Cases, who was an active, busy man, had an inclination to publish a collec- tion of Popery Cases, and the vanity to pass for the author of them. He obtained a copy of the manuscript, and the cases subsequent to 1752 he procured from gentlemen of dis- tinction ; some from Mr. Ratoliffe, others from Mr. Kidge, &c. ; and these gentlemen did carefully collate the cases before they were pub- lished. The case of Ambrose v. Hifierman | was taken by a gen- tleman of the bar who is still ex- isting, and he reported the case with all possible accuracy, so that as to the authority of the cases it is idle to say they were not decided." i The one controverted by Mr. Fitz Gerald. A CHRONOLOGICAL LIST EEPOETS IN THE SCOTCH COUETS/ APPEAL CASES TO THE HOUSE OP LORDS.^ Period. Robertson 1707 to 1727 Craigie, Stewart, and Paton . . 1726 to 1821 Shaw 1821 to 1824 Wilson and Shaw 1825 to 1834 Shaw and Maclean 1835 to 1838 Maclean and Robinson .... 1839 Robinson . . ' 1840 to 1841 Bell 1842 to 1850 Macqiieen 1851 to 1865 Paterson 1851 to 1873 No. of Vols. 1 63 2 7 3 1 2 7 4 2 ^ In the case of Brake v. Mid- land Railway Co. 18 Queen's Bench Reports (83 Eng. Com. Law), 93, which was a suit under 9 & 10 Vict. ch. 93, against a railway company, by a wife, for negligence and the consequent death of her husband, Scotch decisions were cited to show that damages were allowed by way of " assythment," or as solatium for wounded feelings. Coleridge, J., giving the opinion of theQ. B., says: " If those decisions had been pronounced upon a law common to both parts of the United Kingdom, we should have been equally ready to be bound by them as if they had been pronounced by the courts of Westminster Hall, . . . but the Scottish law of assythment is wholly alien to the common law of England. It may be, though we need not afBrm it, that those decisions are in strict conformity to the law of Scotland, and would all have been affirmed on appeal to the House of Lords, but they can be of very little assistance to us in construing this Act of Par- liament." ^ See also Court of Session Cases, Second Series, vol. xiii. et seq. ; also Stuart, Milne, and Peddle. ' Vols. ii. iii. iv. v. and vi. are by Paton. Shaw's Digest cites the 6 vols, as " Paton." Kinnear cites the 1st vol. as " Craigie & Stewart," or "1 Paton." SCOTCH EEPOETS. 553 COURT OP SESSION CASES. Period Dnrie 1621 to English Judges 1655 to Gilraour 1661 to Falconer 1681 to Stair 1661 to Dirleton 1665 to Fountainhall 1678 to Harcarse . . 1681 to Dalrymple 1698 to Forbes 1705 to Bruce 1714 to Kames (Remarkable) .... 1716 to Kames (Select) . ... 1752 to Edgar 1724 to Elchies Dictionary and Notes . . 1733 to Clerk Home 1735 to Kilkerran ' . . . 1738 to Falconer 1744 to Hailes 1766 to Bell 1790 to Bell 1794 to Hume 1781 to Faculty of Advocates .... 1752 to Ditto 1808 to Ditto 1825 to Court of Session Cases ^ ... 1821 to No. of Vols. 1642 . . 1 1661 . 1 1666) 1 1685 \ • 1681 . . 2 1677 . 1 1712 . 2 1691 . 1 1720 1 1713 . 1 1715 . 1 1752 . 2 1768 . 1 1725 . 1 1754 . 2 1744 1 1752 . 1 1751 . 2 inl 1791 . 2 1792 . 1 1795 . 1 1822 1 1808 . 14 1825 . 7 1841 . 16 1838 . 16 1 Vol. X. of the Second Series be- gins to include (without different paging) cases in other courts, such as the Court of Teinds, Court of Exchequer, &c. Sometimes " &c." appears on the titlepage. Vol. xiii. of the Second Series begins to in- clude House of Lords Cases, with separate paging. Vol. i. of the Fourth Series be- gins the Justiciary Cases, also with separate paging. The 1st Series is known in Scot- land as " Shaw & Dunlop,'' or sim- ply " Shaw." The 2d Series, as " Dunlop, Bell, & Murray," or simply " Dunlop." The 3d Series, as "Macpherson." The 4th Series, as " Rettie." Stuart, Milne, & Peddie's Re- 554 LIST OF BEPOKTEES. Court of Session Cases. Second Series . . Third Series .... Fourth Series Deas and Anderson Stuart, Milne, and Peddie . . . Scottish Jurist (Monthly) . . . Morison's Dictionarj"- of Decisions, with Supplement, Synopsis, and Indices Brown's Synopsis of Decisions, including House of Lords Ap- peals Brown's Supplement, containing the unpublished Decisions . . Bell's Dictionary of Decisions . . Period. 1838 to 1862 1862 to 1873 1873 to 1880 1829 to 1833 1851 to 1853 1829 to 1873 1540 to 1808 1540 to 1827 1622 to 1794 1808 to 1833 No. of Vols. 24 11 7 5 2 45 22 JUSTICIARY OASES. Shaw and Dunlop Syme . . Swinton . Broun . Arkley Shaw . . Irvine . Couper 1819 to 1831 1826 to 1830 1835 to 1841 1842 to 1845 1846 to 1848 1848 to 1852 1851 to 1867 1868 to 1 1 2 2 1 1 5 4 ports, known as "Stuart," include Cases in Teind Court, Court of Ex- chequer, Court of Justiciary, and House of Lords, as well as in Court of Session, with which they are here classed. There is one uniform paging. 1 See Court of Session Cases, Fourth Series. There is no appeal to the House of Lords from the Com-t of Justiciary, whose jurisdic- tion is confined to criminal matters. (Mackintosh v. The Lord Advocate, 2 App. Cas. 41.) SCOTCH BEPORTS. 555 No. of Vols. CONSISTORIAL COURT. Period. Fergusson i 1811 to 1817 . . 1 JURY COURT. Murray 1815 to 1830 . . 5 Macfarlane 1838 to 1839 . . 1 COURT OF TEINDS.» Shaw 1821 to 1831 . . 1 REPORTS IN ALL THE COURTS. Scottish Law Reporter .... 1865 to 18T4 1 This volume was published in Treatise occupies 256 pages ; the 1817. There is another volume en- Reports, 259 ; and an Appendix, titled "A Treatise on the present 159. "The Reporter was a Judge state of the Consistorial Law in of great learning and experience." Scotland. With Reports of Decided (Macqueen on the Law of Divorce, Cases. By James Fergusson, Esq., p. 158, 2d edition.) lately one of the Judges in the Con- ' See Court of Session Cases, sistory Court of Edinburgh." This Second Series, vol. x. e< seg. volume was published in 1829. The BKITISH COLONIAL REPOETS. CANADIAN DOMINION REPORTS. Period. Supreme Court Reports .... 1877 to 1881 . No. of Vols. PROVINCIAL. UPPER CANADA .1 COUET OF APPEAL. Appeal Reports 1877 to 1881 . . 5 ERROR AND APPfiAL. Error and Appeal Reports . . . 1846 to 1866 . . 3 QUEEN'S BENCH. Taylor's Reports, King's Bench . 1824 to 1828 . . 1 Draper's Reports, King's Bench . 1829 to 1830 . . 1 King's Bench Reports .... 1830 to 1844 . . 6 Queen's Bench Reports .... 1844 to 1881 . . 46 1 The legal name of Upper Can- the Reports it is still styled Upper ada, since the consolidation, is Canada. " The Province of Ontario," but in BRITISH COLONIAL EEPORTS. 557 COMMON PLEAS. Stuart's Lower Canada Eeports, K. B 1810 to 1834 Lower Canada Reports .... 1851 to 1861 Lower Canada Jurist .... 1857 to 1881 Legal News 1878 to 1881 Law Journal 1866 to 1868 No. of Vols. Period, Common Pleas Reports .... 1850 to 1881 . . 32 CHANCERY. Grant's Chancery Reports . . . 1849 to 1881 . . 28 MISCELLANEOUS. Harrison and Hodgin's Municipal Reports 1845 to 1851 . . 1 The Law Reporter 1854 to . . 1 Chamber Reports 1848 to 1853 . . 2 Practice Reports 1848 to 1880 . . 8 Vol. VIIL is in course of pub- lication. Chancery Chambers Reports . . 1868 to 1872 . . 4 Vol. IV. is incomplete. Upper Canada Law Journal . . 1855 to 1865 . . 10 Upper Canada Law Journal, New Series 1865 to 1881 . . 17 Local Courts Gazette .... 1865 to 1872 . . 8 Canadian Law Times . . . 1881 to . . 1 LOWER CANADA.i 1 17 25 4 4 ^ The legal name of Lower Can- the Reports it is stUl styled Lower 'da, since the consolidation, is Canada. ' The Province of Quebec," but in 558 LIST OP EEPOKTEES. Pike (not complete) Quebec Law Reports Revue Critique . . . Revue Legale . . . Revue de Legislation . Seigniorial Reports, English. Seigniorial Reports, French Stuart's Vice-Admiralty . La Themis Period. to 1810 1875 to 1881 1871 to 1875 1869 to 1881 1845 to 1848 1856 to 2 1856 2 1836 to 1874 1879 to 1881 No. of Vols. 1 7 3 10 3 A. &B. A. &B. , . 2 . 1 NEW BfRUNSWICK. Chipman's MS 1825 to 1827 Berton 1835 to 1839 Kerr's Reports 1840 to 1848 Allen's Reports 1848 to 1866 Hannay 1867 to 1871 Pugsley 1872 to 1876 Pugsley and Burbidge .... 1877 to 1880 1 1 3 6 2 3 4 NOVA SCOTIA. Stewart's Vice Admiralty . Thompson's S. C. Reports ^ James's S. C. Reports Cochran (incomplete) Oldwright's S. 0. Reports Nova Scotia Decisions Russell and Chesley . . Russell and Geldert . 1804 to 1818 1834 to 1858 1853 to 1855 1859 to 1860 to 1867 1866 to 1869 1875 to 1879 1879 to 1880 1 2 1 1 2 1 3 1 Equity. Russell and Chesley, Equity . . 1873 to 1878 . . 1 1 A new edition of the first vol. of Thompson, with some additional cases, was published in 1877. AMERICAN REPORTS. AMERICAJS[ REPORTS.' UNITED STATES REPORTS. SUPREME COURT REPORTS. Dallas^ Cranch Wheaton Peters^ Howard Black Wallace United States Supreme Court Re- ports (Otto) Morrison's Transcript .... Peters's Condensed Reports, con- taining Dallas's, Cranch's, and Wheaton's Reports .... Curtis's United States Supreme Court Decisions and Digest, 1 Dallas to 17 Howard, in- clusive Miller's United States Supreme Court Decisions, 18 Howard to 2 Black, inclusive .... Period. No. of Vola. 1790 to 1800 . . 4 1800 to 1815 . . 9 1816 to 1827 . . 12 1827 to 1842 . . 16 1843 to 1860 . . 24 1861 to 1862 . . 2 1863 to 1875 . . 23 1875 to . 13 1880 to . 2 1790 to 1827 . . 6 1781 to 1854 1854 to 1862 22 ^ In the revision of this List, Mr. Heard acknowledges the assist- ance he has derived from the List prepared by Mr. Moak and pub- lished in Messrs. Gould & Son's Law Catalogue. " The 2d, 3d, and 4th vobimes contain cases decided in this court from April Term 1792, to October Term 1806, inclusive. ' The 17th volume of Peters, pub- lished after he left oiBce, is not offi- cial. It contains the same cases as 1st Howard. 86 562 LIST OF REPORTERS. CIRCUIT COURT REPORTS. The Circuits, as originally organized, were as follows : — 1. Massachusetts, Maine, New Hampshire, and Rhode Island. 2. New York, Connecticut, and Vermont. 3. Pennsylvania and New Jersey. 4. Virginia, Maryland, and Delaware. 5. Alabama and Louisiana. 6. North Carolina, South Caro- lina, and Georgia. 7. Ohio, Indiana, Illinois, and Michigan. 8. Kentucky, Tennessee, and Missouri. 9. Mississippi and Arkansas. As reorganized by Act of July 23, 1866 : — 1 and 2 remain the same. 3. Pennsylvania, New Jer- sey, and Delaware. 4. Maryland, Virginia, West Virginia, North Carolina, and South Carolina. 5. Alabama, Louisiana, Florida, Georgia, Mississippi, and Texas. 6. Ohio, Michigan, Kentucky, and Tennessee. 7. Indiana, Illinois, and Wis- consin. 8. Minnesota, Iowa, Missouri, Kansas, and Arkansas. 9. California, Oregon, and Nevada. First Circuit. Period. Gallison 1812 to 1815 . Mason 1816 to 1830 . Sumner 1830 to 1839 . Story 1839 to 1845 . Woodbury and Minot . . . . 1845 to 1847 . Curtis 1851 to 1856 . Clifford 1858 to 1878 . Holmes 1870 to Lowell 1865 to 1877 . Second Circctit. Paine . . . . " 1810 to 1840 . . 2 Blatchford ' . . . 1845 to 1880 . . 18 No. of Vols. 2 5 3 3 3 2 4 1 2 AMERICAN EEPOETS. 563 Third Circttit. Old. Dallas. The 2d, 8d, and 4th vols, contain cases decided in this court , . Wallace (John Bradford) Cases ' Period. 1781 to 1806 1801 No. of Vols. 4 12 1 This volume contains the only reported opinions known to me of the courts of the United States as constituted under what was called Mr. Adams's Judiciary Law of 1801 ; an establishment of the National Courts said to have been deemed, by wise men of all sides, the happiest organization of our Federal judi- ciary, but which, "having grown up amidst the contentions of party, was not spared by that which spares nothing." On the triumph of the Democracy under President Jeffer- son, the whole court was abolished; " and Judges who had received their commissions during good be- havior wei-e deprived of their oiBces without the imputation of a fault." The bench in this circuit was com- posed of William Tilghman, after- wards well known as Chief Justice of Pennsylvania; Richard Basset, of Delaware; and William Griffith, of New Jersey. The first of these is an historic name, and the second is sufficiently known. Mr. Griffith's deserves not less honor than has been paid to either of them. He was a native of New Jersey, and re- sided at Burlington, in which city he died in the summer of 1826. "It would be difficult," said an accom- plished literai7 character of New Jersey, his friend, the Rev. Charles Henry Wharton, D.D., " to form a wish for more splendid talents, more professional acquirements, more ar- dent and unsophisticated attach- ment to his country, than shone conspicuously in the "character of William Griffith. He was literally a father to the fatherless, a friend to the widow, and a benefactor to the distressed of every description. The pleasure of doing good was the reward of his otherwise unpaid ser- vices. Selfishness, even in its most allowable form, seemed scarcely to constitute a feature of his character. He appeared only to live for his family and friends." The Corpo- ration of Burlington, of which city, at the time of his death, he was Mayor, " deeply deploring the loss of his great talents, public services, and exalted worth," justly " de- clared him entitled to the highest esteem and regard;" and the As- sembled Bar of his native State — Mr. Richard Stockton being at that time its leading member, and the originator, I presume, of this hon- orable testimonial — expressed as their united sense, that " while cir- cumstances which he could not con- '' The second edition was published in 1838, a third one subsequently. 564 LIST OF KEPOETEES. T> -^A No. of Peters 1803 to 1818 . . 1 Washington 1803 to 1827 . . 4 Baldwin 1828 to 1833 . . 1 Wallace (Junior) i 1842 to 1862 . . 3 trol had deprived the latter years of {he late Horace Binney Wallace, a useful life of the fruits of a long, Esq., of Philadelphia, — whose testa- able, and honorable practice at the mentary executor presented them to bar, they yet reilected with pride the Philadelphia Library Company, and satisfaction upon his eminent — three large volumes, richly bound talents, his personal virtues, the for- in blue Turkey morocco, of the Re- titude that sustained and the in- porter's Notes, from 1801 to 1816, tegrity that guided his conduct in of cases in the Third Circuit, of the trying scenes of his life." Mr. which the bench was then occupied Griffith was the author of a most by Judges Washington and Peters, laborious, useful, and accurate work. They cover a part of the same term of an ephemeral kind unfortunately, embraced by the work called Wash- and never completed, called " The ington's Circuit Court Reports, — United States Law Register." His "a book," says Mr. Marvin (Legal opinion as a text- writer, in his Law Bibliography, 720), which was Register, has been judicially spoken " printed from Judge Washington's of by the Supreme Court in New Notes, never originally designed for Jersey, " as entitled to the highest the press; " and which, while accu- consideration." (1 Dutcher, 33.) rate, so far as it goes, is but an im- These reports, which are few in perfect monument to the judicial number, and are contained in a powers of that upright man. It small volume, were taken while was a matter of deep regret with their author was a very young man. Judge Washington, as it was with Subsequent enterprises of another the profession of that day generally, kind engaged his fine professional and especially with Mr. Wallace's parts, and prevented further publi- friends, that the decisions of the cation; " leaving us," says Mr. Hall Third Circuit should not have been (1 Journal of Jurisprudence, 415, given to the Bar by their original quoted in Marvin's Legal Bibli- reporter. The work would have ography, 715), " only to regret that been an enduring monument alike he who has shown us how well he of his fine intellectual powers and could report, has not gratified the accomplishments, and of Judge public expectation in respect to the Washington's first-rate capacities same court since Judge Washington as a Judge upon the Circuit, presided in it." It was their author's ^ Cited as " Wallace Junior," to intention to publish the decisions of distinguish them from Wallace's Judge Washing-ton, and there were (J. B.) Cases, recently in the possession of his son, american reports. 565 Fourth Circuit. Old, Period. ^°-°^ Vols. CaU's Virginia Reports (Vol. VI. pp. 241 to 376) 1793 to 1825 . . Marshall's Decisions, by Brocken- brough 1802 to 1833 . . 2 Taney's Decisions, by Campbell . 1836 to 1861 . . 1 Fourth Circuit. New. Chase's Decisions, by Johnson . . 1865 to 1869 . . 1 Hughes 1870 to 1880 . . 3 Fifth Circuit. New. Woods 1870 to 1879 . . 3 Sixth Circuit. New. Bond 1855 to 1871 . . 2 Brown's Admiralty 1859 to 1875 . . 1 - Flippiu 1859 to 1877 . . 1 _ Seventh Circuit. Old. McLean 1829 to 1854 . . 6 Seventh Circuit. Old and New. Bissell 1851 to 1878 . . 7 Eighth Circuit. Old and New. Miller's Decisions, by Woolworth 1863 to 1869 . . 1 Dillon 1870 to 1880 . . 5 .- M'Crary 1880 to . . 1 Ninth Circuit. Old. Hempstead 1839 to 1856 . . 1 566 list of repoetee's. Ninth Cikcuit. Old and New. T, ■ J No. of Period. yoi3 McAllister 1855 to 1859 . . 1 Deady 1861 to 1869 . . 1 Sawyer 1870 to 1879 . . 5 ^ DisTEiCT OF Columbia. Cranch . . . • 1801 to 1841 . . 6 — CIRCUIT AND DISTRICT COURT REPORTS- Abbott 1863 to 1871 . . 2 Federal Eeporter 1880 to . - 8 DISTRICT COURT REPORTS. DiSTEiGT OF Maine. Ware i 1822 to 1865 . . 3 Daveis i 1839 to 1849 . . 1 DiSTEiCT OF Massachusetts. Sprague 1841 to 1864 . . 2 Lowell 1865 to 1877 . . 2 DiSTEICT OF VeEMONT. Reported in Vermont Reports, Vols. XX. to XXV. 1 The second edition of the first edition of Daveis. The title, " Vol. volume was published in 1856, with II. Ware's Keports," was substituted cases decided in 1854 to 1855. The for " Daveis " for sake of uniform- second volume, published in 1873, is ity. A third volume, "a sequel a reprint of Daveis's Reports, pub- to the first and second," was pub- lished in 1849, and is called a second lished in 1874. AMEBIC AN EEPOETS. 667 DisTEiCT OF New Yoek. Period. Yan Ness's Prize Cases .... 1814 Blatchford and Howland . . . 1827 to 1837 Olcott 1843 to 1850 Abbott's Admiralty 1847 to 1850 Blatchford's Prize Cases . . . 1831 to 1865 Benedict 1865 to 1878 No. of Vols. 1 1 1 1 1 9 DisTEiCT OF Pennsylvania. Hopkinson's Judgments in the Admiralty 1779 to 1789 . . 2 1 Peters's Admiralty Decisions . . 1792 to 1807 . . 2 Fisher's British License Cases ^ . 1813 . . 1 1 These two volumes are two dis- tinct works. The title of the first one — a 12mo or crown 8vo of 131 pages, equally rare and useless — is as follows: "Judgments in the Admi- ralty of Pennsylvania, in Four Suits brought as for Marine Hypotheca- tions. Also the case of Silas Talbot against the Briggs Achilles, Patty, and Hibemia, and of the owners of the Hibemia against their Captain, John Angus. With an Appendix, containing the Testimony exhibited in the Admiralty in those Causes. The Hon. Francis Hopkinson, Judge. Philadelphia, printed by T. Dobson and T. Lang, in Second Street. MDCCLXXXIX." The other volume makes the first two hundred and fifteen pages of the 3d volume of "The Miscella- neous Essays and Occasional Writ- ings of Francis Hopkinson, Esq.," published in Philadelphia by Thomas Dobson, in 1792. The first of these two volumes contains but six cases; which, if they are enough to entitle the book to rank as a volume of Reports, gives to it perhaps the right of being regarded as the first volume of Keports ever published in the United States. 2 Four "Cases Decided in the Dis- trict and Circuit Courts of the United States for the Pennsylvania District; also a case in the District Court of Massachusetts, relative to the em- ployment of British Licenses on board vessels of the United States." Published in Philadelphia, A.D. 1813, by Redwood Fisher, 91 pp. 8vo. The book is of little or no practical value. I give its title merely, that the lawyer who is desirous to com- plete ad unguent his series of Re- ports may be able to do so. It was reprinted in Philadelphia, in 1871. 568 LIST OF EEPORTEBS. Eastebn District of Pennsylvania. Period. No. of Vols. Gilpin 1828 to 1836 , . 1 . Crabbe 1836 to 1846 . . 1 DiSTEIOT OF NOETH CaEOLINA. Martin's Decisions 1 1792 to 1796 . . 1 DiSTEIOT OF South Carolina. Bee's Admiralty 'l792 to 1805 . . 1 DiSTEIOT OF AeKANSAS. Hempstead 1820 to 1856 . . 1 DiSTEIOT OF Michigan, Noetheen and Southern Dis- tricts OF Ohio, Western District of Pennsylvania, Western District of Illinois, District of Missouri, AND Eastern District of Louisiana. Newberry's Admiralty .... 1842 to 1857 . . 1 Bond 1856 to 1871 . . 2 Brown's Admiralty 1859 to 1874 . . 1 (See ^osi tit. "Kirby.") The other nine cases reported as Hopkinson's work contains forty-nine cases, the in the 3d volume of the " Miscel- greater portion of them decided laneous "Works." For the remain- prior to 1787, when the Federal ing thirty-one of Hopkinson's Constitution was adopted ; and, Judgments we must therefore go to being so, but State decisions. It the work just named; and for the reprints, I believe, all the cases in very fullest history of three of the the old book, bu^ omits, in one case, cases in them we must go still fur- to give us, as the old one does, the ther, and to the small volume con- exhibits and evidence. In 1810 taining six cases printed in 1789. Judge Bee printed at the end of his ^ For the full title of this book. Admiralty Reports an Appendix see in/ra, tit. " North Carolina," p. containing eighteen of the forty- 583 note. american eeports. 569 District of California and Oregon. Period. ^?of Vols. Hoffman's Land Cases .... 1853 to 1858 . . 1 Deady 1861 to 1869 . . 1 Sawyer 1870 to 1879 . . 5 Hoffman's Reports (in press). District op Kansas. McCahon 1860 to 1868 . . 1 District of Columbia. MacArthur 1873 to 1879 . . 3 COURT OF CLAIMS. Devereux 1856 . . 1 ^ Nott and Huntington .... 1863 to 1872 ) hq ^ ^, Nott and Hopkins 1873 to \' ' INTERNAL REVENUE. The Internal Revenue Recorder . 1865 to . . 27 PATENT CASES. Robb's Patent Cases (Supreme and Circuit Courts) to 1850 . . 2 Fisher's Patent Cases (Circuit Courts) 1848 to 1873 . . 6 Banning and Arden (Circuit Courts) 1874 to . . 1 Fisher's Patent Reports (Su- preme and Circuit Courts) . . 1821 to 1850 . . 1 Whitman's Patent Reports (Su- preme Court) 1810 to 1874 . . 2 Patent Office Gazette .... 1872 to ' . . 20 Patent Office Decisions .... 1871 to . . 11 1 Citedas"Ct. of Cls." 570 LIST OF EBPOETEKS. BANKRUPTCY EEPORTS. TJ • J No. of Period. y^^^ National Bankruptcy Register . 1867 to . . 19 UNITED STATES AND STATE COURT REPORTS. American Law Times Reports (Leading Cases) 1868 to 1873 . 6 American Law Times Reports, N.S. 1874 to 1877 . . 4 Law and Equity Reporter . . . 1874 to 1877 . . 4 The Reporter (Vols. V. to XIL, in continuation of the two pre- ceding) 1878 to . . 8 CONGRESSIONAL ELECTION CASES. Contested Election Cases (Vol. I. 1789 to 1834. Vol. IL 1834 to 1865. Vol. in. 1865 to 1871. Vol. IV. 1871 to 1876) . . . 1789 to 1876 . . 4 STATE REPORTS. ALABAMA. Minor 1820 to 1826 . . 1 Stewart 1827 to 1831 . . 3 Stewart and Porter 1831 to 1834 . . 5 Porter 1834 to 1839 . . 9 Smith's Condensed Alabama Re- ports 1820 to 1839 . . 5 Alabama Reports 1840 to . . 64 Alabama Select Cases (Shepherd) 1 1861 to 1863 . . 1 ARKANSAS. Arkansas Reports 1837 to . . 36 ^ Most, if not all, of the deci- and 39th volumes of the regular sions in the Alabama Select Cases series of Alabama Reports, are also reported in the 37th, 38th, AMERICAN KEPOETS. 671 CALIFORNIA. Period. ^o-of Vols. Labatt's District Court Reports ^ 1857 to 1858 . . 2 California Reports 1850 to . . 66 Peobate Couets. Myrick 1872 to 1879 . . 1 COLORADO TERRITORY. Colorado Reports 1864 to . . 4 CONNECTICUT. Kirby^ 1785 to 1788 . . 1 Root 1789 to 1798 . . 2 Day 1802 to 1813 . . 5 Connecticut Reports 1814 to . . 47 1 The 2d volume of Labatt was statement of Mr. Day, ' that Mr. never completed. Kirby's volume was the first volume ' This has been said — incor- of Reports published in the United rectly, I think, if we are strict in the States,' has been repeated by other matter — to have been the first vol- persons, as e. g. Mr. Brown, in his ume of Keports ever printed in the ' Forum ' (vol. i. p. 560 note.) United States. Mr. Green writes I think, however, that perhaps all to me as follows: " Mr. Day (Pref- parties may be wrong: I believe ace to 1 Connecticut, p. xviii) — cor- that Hopkinson's 'Judgments in reeling an error of .Mr. David Hoff- the Admiralty of Pennsylvania ' is man, who, he says, states in his really the first volume of Reports ' Course of Legal Study,' p. 147, which ever appeared in the United that we had no Law Reports in the States. Like Kirby's, it was printed United States prior to those of Mr. in 1789. Kirby's preface has no Dallas, and that Pennsylvania set date. Hopkinson's is dated Feb- the example in 1790 — states that rnary, 1789. It would rather seem, Mr. Kirby, of Connecticut, published therefore, — while no doubt Kirby's his in 1789, and that to Connecticut is a much larger, more lawyer-like, IS due the honor of having ' set an and far more valuable production, example to her sister States, which — that in the mere matter of time, it has been their just pride and their Hopkinson is a very little before high advantage to follow.' This him." GEORGIA. Charlton (T. U. P.) 1805 to 1810 Charlton (R. M.) 1811 to 1837 Dudley 1821 to 1833 Georgia Decisions 1842 to 1843 Georgia Reports 1846 to Supplement to Vol. XXXIII. Georgia 1864 IDAHO TBRRITORT. Idaho Reports 1866 to No. of Vols. 572 LIST OP EEPOETEBS. DAKOTA. Period. Dakota Reports 1867 to 1877 . . 1 DELAWARE. Harrington 1832 to 1855 . . 5 Houston 1855 to 1873 . . 4 Houston's Criminal Cases . . . 1856 to 1879 . . 1 CHAi^CEET. Delaware Chancery Reports . . 1814 to 1865 . . 2 DISTRICT OF COLUMBIA. MacArthur 1873 to 1879 . . 3 FLORIDA. 4 Florida Reports 1846 to 1880 . . 17 1 1 1 2 64 AMBEICAN EEPORTS. 673 ILLINOIS. Period. ^■of Vols. Breese 1819 to 1831 . . 1 Scammon 1832 to 1843 . . 4 Gilman 1844 to 1848 . . 5 Illinois Reports (Vols. XI. to XCVIII.) 1849 to . . 88 Appellate Couets Repoets. Bradwell 1877 to . . 8 North Western Reporter, Illinois Supplement 1880 . . 2 INDIANA. Blackford 1817 to 1847 . . 8 Smith 1848 to 1849 . . 1 Indiana Reports 1848 to . . 73 Wilson's Superior Court Reports 1871 to 1864 . . 1 North Western Reporter, Indiana Supplement 1880 . . 1 IOWA. Bradford 1 1839 to 1841 . . 1 Morris 1839 to 1845 . . 1 Greene 1847 to 1852 . . 4 Iowa Reports 1855 to . . 65 KANSAS. McCahon 1858 to 1863 . . 1 Kansas Reports 1862 to . . 25 1 Bradford's Reports were published in two Parts. They were re- printed in Morris's Reports. 574 LIST OP EEPOKTBKS. KENTUCKY. Period. Hughes 1 1785 to 1801 Kentucky Decisions (Sneed)i . . 1801 to 1805 Hardin 1805 to 1808 Bibb 1808 to 1817 Marshall (A. K.) 1817 to 1821 Littell's Reports 1822 to 1824 Littell's Select Cases 1795 to 1821 Monroe (T. B.) 1824 to 1828 Marshall (J. J.) 1829 to 1832 No. of Vole. 1 1 1 4 3 5 1 7 7' 1 Both these boots are rare.* The last is sometimes called, in Ken- tucky, " Printed Decisions; " out of it, "Kentucky Decisions;" and sometimes " Sneed's Reports." " For a case which is a curiosity in jurisprudence," says Mr. Green, " see the book, p. 221. . . . The case, which is of the date of November 3, 1802, is thus: — " ' Hehey Clay, Plaintiff, against The Justices of the Quabtek Sessions OF Fayette County, Defendants. " 'Upon writ of error to reverse a judg- ment of the said court imposing a fine of ten pounds upon the said Henry Clay, " ' The Court being now sufficiently ad- vised of and concerning the premises, and having inspected the record and proceed- ings herein, delivered the following opin- ion, to wit : — " 'It does not appear that the contempt alleged to have been committed was com- mitted in the presence of tlie court, or that the said Clay was present when the fine was imposed, and if not, he ought to have been brought into court bj' summons or attachment to answer the charge. There- fore it is considered by the court that the judgment aforesaid be reversed and set aside, and that the plaintiff recover of the defendants his costs on this behalf ex- pended. Which is ordered to be certified to the said court.' " "It is worth observing," con- tinues Mr. Green : — " 1st, That the plaintiff in error, who was fined for contempt of court, was no other than Henry Clay, who subsequently became so conspicuous a figure in the Congress of the United States, and in the councils and em- bassies of the nation. " 2d, That the judicial incum- bents of the Bench that fined him, and who had properly no interest in the judgment, were to receive the fine instead of the Commonwealth. " 3d, That for pronouncing a judgment deemed erroneous, they were made to pay the costs of revers- ing it. "4th, That the Court of Appeals took cognizance on error of a judg- ment imposing a fine for contempt." Hughes, Printed Decisions, and Hardin have recently been republished. AMERICAN REPORTS. 575 Period. Dana 1833 to 1840 Monroe (Ben.) 1840 to 1858 Metcalfe 1859 to 1863 Duvall 1864 to 1866 Bush ■ 1866 to 1879 LOUISIANA. Martin 1809 to 1823 Martin (New Series) 1823 to 1830 Martin (new edition with notes) . 1809 to 1830 Martin's Reports (condensed) . . 1809 to 1830 Louisiana 1830 to 1841 Louisiana (new edition) . . . 1830 to 1841 Robinson 1841 to 1846 Louisiana Annual ^ 1846 to Courts of Appeals. McGloin's Reports 1880 to Parts 1 and 2 of Vol. I. No. of Vols. 9 18 4 2 14 . 12 . 8 20 in 10 20 in 4 . 19 19 in 10 . 12 . 32 MAINE. Greenleaf 1820 to 1832 . . 9 Fairfield 1833 to 1835 . . 3 Maine Reports (Vols. XIII. to LXXL) 1836 to . . 71 MARYLAND. Law. Harris and M'Henry 1700 to 1799 . . 4 Harris and Johnson 1800 to 1826 . . 7 Harris and Gill 1826 to 1829 . . 2 Gill and Johnson 1829 to 1843 . . 12 Gill 1843 to 1851 . . 9 Maryland Reports 1851 to . . 53 576 list of eeportbes. Chancery. Period. No. of Vols. Raymond's Digested Chancery Cases 1804 to 1835 . . 1^ Bland , . 1811 to 1832 . . 3 Maryland Chancery Reports . . 1847 to 1854 . . 4 MASSACHUSETTS. Quincy 1764 to 1771 . . 1 Cushing's Contested Election Cases 1780 to 1852 . . 1 Massachusetts Reports .... 1804 to. 1822 . . 17 Pickering 1822 to 1842 . . 24 Metcalf 1840 to 1847 . . 13 Cushing 1848 to 1853 . . 12 Gray 1854 to 1860 . . 16 Allen 1861 to 1867 . . 14 Massachusetts Reports (Vols. XCVII. to CXXX.) .... 1867 to 1881 . . 34 Thacher's Criminal Cases . . . 1823 to 1842 . . 1 MICHIQAN. Law. Douglass 1843 to 1847 . . 2 Michigan Reports 1847 to . . 44 Michigan Nisi Prius Cases, Brown 1869 to 1871 . . 2 Chancery. Harrington 1837 to 1842 . . 1 Walker 1842 to 1845 . . 1 MINNESOTA. Minnesota Reports 1851 to . . 27 1 Contained in tiie Reports of the Court of Appeals, 1 H. & McH. to 7 G. & J. AMEEICAN BEPOETS. 677 MISSISSIPPI. Law. Period. ^-."^ Vols. Walker 1818 to 1832 . . 1 Howard 1834 to 1843 . . 7 Smedes and Marshall .... 1843 to 1863 . . 14 Mississippi Reports (Vols. XXIII. toLVIII.) 1851 to . . 36 Chanceey. Freeman 1839 to 1843 . . 1 Smedes and Marshall 1840 to 1843 . . 1 Ceiminal. Morris's State Cases 1818 to 1872 . . 2 MISSOURI. Missouri Reports 1821 to , . 72 St. Louis Couet op Appeals. Missouri Appeal Reports . . . 1876 to 1881 . . 9 MONTANA TERRITORY. Montana Reports 1868 to . . 3 NEBRASKA. Nebraska Reports 1855 to . . 11 NEVADA. Nevada Reports 1865 to . . 15 NEW MEXICO. New Mexico Reports (Gilder- sleeye) 1852 to 1879 . . 1 37 578 LIST OF EEPOBTERS. NEW HAMPSHIRE. Period. Smith New Hampshire Reports Foster New Hampshire Reports 1802 to 1816 1816 to 1850 1850 to 1855 1855 to 1878 No. of Vols. 1 20 11 30 NEW JERSEY. Law. Bloomfield's Manumission Cases ^ 1775 to 1798 Coxe2 1790 to 1795 Pennington 1806 to 1813 Southard 1816 to 1820 Halsted 1821 to 1831 Green 1831 to 1836 Harrison 1837 to 1842 Spencer 1842 to 1846 Zabriskie 1847 to 1855 Dutcher 1855 to 1862 Vroom 1863 to 1 1 2 2 7 3 4 1 4 5 13 1 Sometimes called " Manumis- sion Cases." These Keports hardly deserve to be styled a volume. They are contained in a small pamphlet, and are entitled " Cases Argued and Adjudged in the Supreme Court of New Jersey, relative to the Manu- mission of Negroes." The imprint is at Burlington. " Printed for the New Jersey Society for promoting the Abolition of Slavery, by Isaac Neale, MDCCXCIV." A new edi- tion was printed at Camden, N. J., A.D. 1843. The tract has little in- terest at this day except of a his- torical kind. We find in it, however, the names of the great lawyers of New Jersey of a past day: the Bou- dinots, — Elias and Elisha; Richard Stockton, John DeHart Boudinot of Elizabethtown, and others whose names are now remembered by tra- dition chiefly. 2 It is mentioned by Mr. Griffith in his Law Register that Mr. Coxe (who was the son-in-law of Mr. Griffith) had, in manuscript, a second volume of Reports. These Reports are printed in volume 1st of Halsted's Reports, pp. 30-3, &c., and in volume 2d, pp. 305, &c. The last embrace the cases decided by Chief Justice Kinsey. See note on p. 303 of vol. i. AMEKICAN EEPOETS. 579 Chancery. Period. Saxton 1830 to 1832 Green _ . 1833 to 1845 Halsted 1845 to 1852 Stockton 1862 to 1858 Beasley 1858 to 1860 MoCarter 1861 to 1862 Green (0. E.) 1863 to 1876 Stewart 1877 to No. of Vols. 1 3 4 3 2 2 12 6 NEW YORK. Law. ''Coleman's Cases 1794 to 1800 . . 1 ,, Coleman and Gaines's Cases . . 1794 to 1805 . . 1 V Johnson's Cases 1799 to 1803 . . 3 vOaines's Reports, or N. Y. Term Reports 1803 to 1805 . . 8 V Gaines's Cases 1804 to 1805 . 2 in 1 . Johnson i 1806 to 1823 . . 20 ''Anthon's Nisi Prius Cases . . . 1808 to 1818 . . 1 ^ Yates's Select Cases 2 .... 1811 . . 1 1 "The decisions which are found son's report of the Trial of the in Johnson's Reports have always Journeymen Cordwainers of the come to us with a weight of author- City of New York, which was first ity to which the learning, talents, published in 1810; the first (pp. 1- and exalted legal character of the 110) an exact reprint of a pamphlet learned Justices who composed the containing (pp. 1-66) the report, court so justly entitled thera." verbatim, from 4 Johns. Rep. 317- (Williams, C. J., in Ives v. Hulet, 376, of thecase of John P. N. Yates, 12 Vt. 335.) with notes of Mr. Johnson, and none 2 This volume is completely mis- other, thereto; and (pp. 67-110), named. It might be better called an Appendix, of the proceedings Riley's Select Cases, from the against Mr. Yates in the Court name of the. publisher. It contains of Chancery prior to his being • two cases; the second (pp. 111-278) brought before the Supreme Court being an exact reprint of a pamphlet upon habeas corpus, as reported by containing (pp. 1-168) Mr. Samp- Mr. Johnson. This last-mentioned 580 LIST OF BEPOETEKS. Period. VCowen 1823 to 1829 V Wendell 1828 to 1841 i Hill 1841 to 1844 v; Denio •• . 1845 to 1848 J Lalor's Supplement to Hill and Denio 1842 to 1844 '' Edmonds's Select Cases . . . 1834 to 1848 Lockwood's Reversed Cases . . 1799 to 1847 ' Barbour's Supreme Court Reports 1847 to 1875 -^ Lansing's Supreme Court Reports ^ 1869 to 1873 Hun's Supreme Court Reports . 1873 to New York Supreme Court Re- ports, Thompson and Cook's ^ . 1873 to 1875 Chanceky. Johnson 1814 to 1823 - Hopkins 1823 to 1826 Lansing 2 1824 to 1826 No. of Vols. 9 26 7 5 1 1 1 67 7 24 1828 to 1845 Barbour's Chancery 1845 to 1848 Chancery Sentinel 3 1841 to 1847 7 1 1 11 3 6 is doubtless the same printed report, published in 1809, which was read in the Court of Errors, when Mr. Yates's case came before it, save that possibly the pamphlet may have contained a supplement, of proceed- ings in the Court of Chancery in September, 1809. At any rate, it is certain that neither Mr. Yates nor any friepd of his could possibly have published it. See 6 Johnson's Rep. 337-523." 1 Lansing's Reports should prop- erly be cited as Lansing's Reports. They are sometimes, though erro- neously, cited as 1 to 7 N. Y. Supreme Court Reports. Mucl^t confusion has resulted between Thompson and Cook's Supreme Court Reports, which are properly cited as 1 to 6 N. Y. Supreme Court Reports, and Lansing's Reports being improperly cited as N. Y. Supreme Court Rep. 2 Lansing's Chancery Reports contain 18 pages, "reported by John Lansing, Jr." The titlepage is, "Reports of Cases in Chancery and the Supreme Court in the State of New York in 1824 and 1826. Printed by Packard and Van Ben- thuysen, Albany, 1826." ^ Short notes of decisions by the Chancellor, most of them subse- quently reported in the regular Re- ports. AMBEICAN KEPOETS. 581 Vice-Chancbey. Period. Edwards 1831 to 1850 Hoffman 1839 to 1840 Clarke 1 1839 to 1841 Sandford's Chancery .... 1843 to 1847 No. of Vols. 4 1 1 4 CouET OP Appeals. Comstock 1847 to 1851 Seidell 1851 to 1854' Kernan 1854 to 1856 Smith 1857 to 1863 Tiffany 1863 to 1868 Hand 1869 to 1872 Sickels 1871 to Howard's Appeal Cases .... 1847 to 1848 Abbott's Appeal Decisions . . . 1850 to 1869 Keyes 1863 to 1868 Transcript Appeals 1867 to 1868 Selden's Notes (6 Numbers) . . 1852 to 1854 4 6 4 13 12 6 39 1 4 4 7 1 Peacticb and Miscellaneous Repoets. New York Judicial Repository, Bacon (6 Numbers, 338 pages) New York Legal Observer . . . Howard's Practice Reports . . Code Reporter Code Reports. New Series . . Abbott's Practice Reports . . . Abbott's Practice Reports. New Series Abbott's New Cases 1818 to 1819 . . 1 1843 to 1854 . . 12 1844 to, . 61 1848 to 1851 . . 3 1851 to 1852 . . 1 1854 to 1865 . . 19 1865 to 1875 . . 16 1876 to . 9 1 a new edition was published in 1869, with Notes by N. C. Moak, Esq. • 682 LIST OF EEPOETEES. Period. No. of Vols. New York Monthly Law Bulletin 1879 to 1881 . . 3 New York Weekly Digest . . . 1876 to 1881 . . 11 City Courts Reports 1878 to 1881 . . 1 Civil Procedure Reports . . . 1881 . . 1 SUEEOGATE. Bradford 1849 to 1857 . . 4 Eedfield 1857 to 1880 . . 4 Tucker 1864 to 1869 . . 1 Stjpekiok Couet. Hall's Reports (1-2 N. Y. Superior Ct. R.) 1828 to 1829 . . 2 Sandford's Reports (3-7 N. Y. Superior Ct. R.) 1847 to 1852 . . 5 Duer's Reports (8-13 N. Y. Su- perior Ct. R.) 1852 to 1857 . . 6 Bosworth's Reports (14-23 N. Y. Superior Ct. R.) 1857 to 1863 . . 10 Robertson's Reports (24-30 N. Y. Superior Ct. R.) 1863 to 1868 . . T Sweeney's Reports (31-32 N. Y. Superior Ct. R.) 1869 to 1870 . . 2 New York Superior Court Re- ports (Jones and Spencer) . . 1871 to . . 14 COMMOK Pl,EAS. Smith (E. D.) 1850 to 1854 . . 4 Hilton 1855 to 1860 . . 2 Daly 1859 to . . 8 Buffalo Stjpeeioe Couet. Buffalo Superior Court Reports i - 1854 to 1874 . . 1 1 This volume, when bound, was case by that court, and as there is a backed "43 N.Y.Superior Court Vol. XLIII. of that court, this ought Eep." It does not contain a single to be cited as " Bufi. Super. Ct. R." AMEEICAN liEPOETS. 583 Mayoe's Coxtet, New Yobk. Period. ^"^ Vols. Livingston's Judicial Opinions . 1803 . . 1 Ceiminal. Wheeler's Criminal Cases . . . 1776 to 1824 . . 3 City Hall Recorder, Rogers . . 1816 to 1821 . . 6 Parker's Criminal Reports . . . 1839 to 1868 . . 6 Gardinier's New York Reporter (1 Number published) . , . 1820 . . 1 City Hall Reporter, Lomas (192 pages) 1833 . . 1 Skillman's Police Reports (Bur- lesque) 1830 . . 1 NORTH CAROLINA. Law. Martin's Decisions ^ 1792 to 1796 . . 1 Haywood's Reports (Vol. I.) 2 . 1789 to 1798 . . 1 1 The full title of this volume is the copies of Latch first bound " Notes of a few Decisions in the which were published in 1793. Superior Courts of State of North The two Parts, now very scarce, Carolina, and in the Circuit Court were reprinted, in a condensed form, of the United States for North in the second volume of the second Carolina District." Newbern: edition of Haywood's Reports. They Francis Xavier Martin . 1797. The are cited in Coxe's United States State and the United States cases Digest, as North Carolina Cases, are paged separately. There are ^ " A valuable book." Porfc- 78 pages of the State cases, and folio, Vol. II. p. 359. Philadelphia, 83 of the United States, and an A. D. 1806. In the same place the Index. first volume of Taylor's Reports is . These Reports first appeared at spoken of as "of a moderate repu- the end of Martin's translation of tation." Latch (see supra, p. 264), the whole Haywood's N. C. Rep. are cited together making one volume. Of as 1, 2 Hayw. N. C. ; and Haywood's course they did not come out with Tenn. Rep. as 3, 4, and 5 Hayw. ' Tenn. 584 LIST OP KEPOETEES. Period. Haywood's Reports (Vol. II.) . 1797 to 1806 Taylor 1799 to 1802 Conference Reports 1800 to 1804 Murphey 1804 to 1819 Carolina Law Repository . . . 1813 to 1816 North Carolina Term Reports . 1816 to 1818 Hawk 1 1820 to 1826 Devereux 1826 to 1834 Devereux and Battle 1834 to 1839 Iredell 1840 to 1852 Busbee 1852 to 1853 Jones 1853 to 1862 Winston 1863 to 1864 Phillips 1866 to 1868 North Carolina Reports (Vols. LXIII. to LXXXIV.) . . . 1868 to Equity. Devereux 1828 to 1834 Devereux and Battle 1834 to 1840 Iredell 1840 to 1853 Busbee 1852 to 1853 Jones 1853 to 1863 Winston 1863 to 1864 Phillips 1866 to 1868 No. of Vols. 1 1 1 3 2 1 4 4 4 13 1 8 1 1 21 2 2 8 1 6 1 1 OHIO. Tappan's Reports (Common Pleas) 1816 to 1819 . . 1 Ohio Reports 1821 to 1851 . . 20 Ohio State Reports 1852 to . . 36 Wright's Nisi Prius Reports . . 1831 to 1834 . . 1 Handy's Cincinnati Superior Court Reports 1854 to 1856 . . 2 1 The first Part of Vol. I. was and is sometimes cited as Ruffin reported by Thomas RufBin, Esq., and Hawks. AMEBICAN BEPOKTS. 585 Period. Disney's Cincinnati Superior Court Reports 1854 to 1859 Cincinnati Superior Court Re- porter 1870 to 1872 OREGON. Oregon Reports 1853 to No. of Vols. PENNSYLVANIA. Supreme Court. y Dallas 1754 to 1806 ' Addison 1791 to 1799 ^Yeates ^ 1791 to 1808 -Binney 1799 to 1814 /Sergeant and Rawle 1814 to 1828 -Rawle 1828 to 1835 ^Penrose and "Watts 2 1829 to 1832 -Watts 1832 to 1840 -Wharton 1835 to 1841 -Watts and Sergeant 1841 to 1845 'Grant's Cases 1852 to 1863 -Pennsylvania State Reports ^ . . 1844 to 4 2 4 6, 17 5- 3 10- 6- 9- 3 93 Nisi Peius and Supreme Court. Brightly 1809 to 1851 1 The following is a MS. entry on the fly-leaf of the late Mr. E. D. Ingraham's copy of Yeates: " Chief Justice Tilghman told me to-day that it was a pity these Reports were ever published. They were loose notes. April 16th, 1821. So said Judge Duncan, 7th July, 1821, on looking at the preceding entry. Mr. Lewis said, on hearing that they were to be published, ' that they would unsettle the law.' " 2 Cited as " Penn. Kep." 3 Smith, the former reporter, has recently issued Vol. XXXII. of his Reports. It is labelled or ' ' backed ' ' 8l| Penn. State. 586 list of eepoetees. Common Pleas. Period. No. of Vols. Browne 1806 to 1814 . . 2 Ashmead 1808 to 1841 , . 2 Parsons's Select Equity Cases . 1841 to 1851 . . 2 Pearson 1850 to 1880 . . 2 District Court. Miles 1835 to 1840 . . 2 Various Courts. Clarke.'s (Pa. Law Jour.) Reports 1842 to 1861 Philadelphia Reports (Legal In- telligencer) 1850 to 1876 Pittsburgh Reports 1853 to 1873 Brewster 1856 to 1871 Legal Gazette Reports .... 1869 to 1872 Legal Chronicle Reports . . . 1874 to 1877 Vaux, Recorder's Decisions, Phila- delphia! 1841 to 1843 Weekly Notes of Cases .... 1874 to Sutton's Reporter 11 3 4 1 3 1 10 4 RHODE ISLAND. Rhode Island Reports ^ . . . . 1828 to . . 12 1 A small volume published by ing it a prima facie claim to a posi- Mr. Vaux, for some time Recorder tion among Judicial Reports, I of Philadelphia, of cases thought by insert it in my lists, him of interest, and of his action, ^ The first Part of Vol. I. was in committing persons charged be- repoi-ted by Angell, the remainder fore him with crimes. The title giv- by Durfee. AMEKICAN EEPOETS. 687 SOUTH CAROLINA. Law. Period. Bay 1783 to 1804 Brevaid 1793 to 1816 Treadway's (South Carolina) 1 bound with Brevard's Reports . 1812 to 1816 Mill's Eeports (Constitutional) 1 1817 to 1818 Nottand M'Cord= 1817 to 1820 M'Oord 1821 to 1828 Harper 1823 to 1824 Bailey 1828 to 1832 Hill 1833 to 1837 Riley's Reports (Law and Equity) 1836 to 1837 Dudley 1837 to 1838 Rice 1838 to 1839 Cheves 1839 to 1840 McMuUan 1840 to 1842 Spears. 1842 to 1844 Richardson's Reports (Vols. 1-4) 1844 to 1851 Strobhart 1846 to 1850 Richardson's Reports (Vols. 5-12) 1851 to 1860 Richardson's Reports (13 Law and 12 Equity, bound in 1 vol.) . 1860 to 1866 Richardson's Reports (Vols. 14, 15) 1866 to 1868 South Carolina Reports . . . 1868 to No. of Vols. 2 3 2 1 2 4 1 • 2 3 1 1 1 1 2 2 4 5 8 1 2 14 Chanceey. Desaussure 2 1784 to 1813 . . 4 Harper 1824 . . 1 McCord 1825 to 1827 . . 2 ' The series by Treadway and Mill are also respectively known as the Old Series and the New Series of the South Carolina Constitutional Court Reports. 2 Where these volumes are found in their original binding, most per- sons, I think, are strnck with its peculiarity. The cause of it is, I believe, that it was done by negroes. 688 LIST OF EEPOKTEES. Period. Bailey 1830 to 1831 Richardson's Cases 1831 to 1832 Hill 1833 to 1836 Riley's Chancery Reports. See Law Reports 1836 to 183T Dudley 1837 to 1838 Rice 1838 to 1839 Cheves 1839 to 1840 McMuUan 1840 to 1842 Spears 1842 to 1844 Richardson 1844 to 1846 Strobhart 1846 to 1850 Richardson's Chancery Reports . 1850 to 1868 Vol. 12 bound with 13 Rich. Law. No. of Vols. 1 1 2 1 1 1 1 1 1 2 4 12 TENNESSEE. Overton 1791 to 1817 Cooke 1811 to 1814 Haywood ^ 1816 to 1818 Peck 1822 to 1824 Martia and Yerger 1825 to 1828 Yerger 1832 to 1837 Meigs 1838 to 1839 Humphreys 1839 to 1851 Swan 1851 to 1853 Sneed 1853 to 1858 Head 1858 to 1859 Coldwell 1860 to 1870 Heiskell 1870 to 1876 Baxter^ 1872 to 1878 Lea 1878 to 1 3 1 1 10 1 11 2 5 3 7 12 8 3 1 Vols. 3, 4, and 5 Haywood's low, Esq., in one vol. New York, Tennessee Reports have been re- 1870. printed, and edited by M. M. Bige- " Vols. 1, 2, 3 of Baxter are sometimes cited as 57, 58, 59 Tenn. AMERICAN EEP0ET3. 589 Chancellor Cooper has faithfully edited a reprint of all the Tennessee Reports to Coldwell, Vol. I. inclusive. It is an excellent edition, enriched with brief and accurate notes. Thompson's Tennessee Cases Period. 1847 to 1869 No. of Vols. Chancery. Cooper 1872 to 1878 TEXAS. Dallam 1840 to 1844 Texas Reports 1846 to 25 Texas Supplement! . . . . 1860 to 1868 Texas Court Appeals Reports (Criminal) 1876 to 1 54 1 10 UTAH. Utah Reports 1851 to VERMONT. N. Chipman 1789 to 1791 D.Chipman 1789 to 1825 Tyler 2 1800 to 1803 Brayton .' 1815 to 1819 Aiken 1826 to 1827 Vermont Reports 1826 to 1 2 2 1 2 53 1 The Supplement to Vol. XXV. Texas was published iu 1809. It is so numbered to prevent confusion in numbering the volumes in that State, Vol. XXVI. having been pre- viously published. '^ Tyler's Reports are not con- sidered good authority even in his own State. Per Savage, C. J. (4 Cowen, 28; 3 Griffith, Law Register, 2 note). 590 LIST OF BEPOETEES. VIRGINIA. Period. Barradall's MSS. Reports ^ Jefferson 1730 to 1772 Wythe's Chancery 2 1789 to 1799 Washington 1790 to 1796 Virginia Cases 1789 to 1826 Call 3 1797 to 1825 Hening and Munford .... 1806 to 1809 Munford 1810 to 1820 Gilmer - 1820 to 1821 Randolph 1821 to 1828 Leigh 1829 to 1841 Robinson 1812 to 1844 Grattan 1844 to in No. of Vols. 1 1 2 1 6 4 6 1 6 2 2 33 Patton, Jr. and Heath's Reports, Special Court of Appeals . . 1855 to 1857 WASHINGTON TERRITORY. Washington Territory Reports . 1854 to 1864 . , 1 Washington Territory Reports. New Series* 1854 to 1879 . . 1 ' See the Advevtisement to Wythe's Reports, 2d edition. 2 A very greatly improved edi- tion of Wythe, edited by B. B. Mi- nor, Esq. L.B. of the Kiohraond Bar, with a Memoir by tlie editor, and an Appendix containing many very learned notes by Mr. Green, appeared in 1852. No American Reporter has ever been so learnedly and carefully edited. An interest- ing account of the Reporter himself, George Wythe, is given to us ia " The Republican Court, or Amer- ican Society in the Days of Wash- ington," by Dr. Rufus Wilmot Gris- ■wold, of New York. 3 " In 3 Call, p. 439, 2d ed., are 'Cases in the Court of Appeals,' in June Term, 1790, reported by John Marshall, Esq., afterwards Chief Justice of the Supreme Court of the United States. Call and Marshall married sisters, daughters of Jaque- line Ambler, Esq., some time Treas- urer of the State of Virginia. See 3 Griffith's Law Register, 313, 314. And from internal evidence I should think Mr. Call received also some other Reports from the same hand." (Note by the late Mr. William Green, of Virginia.) * This volume includes Wash- ington Territory Reports. AMEEICAN EEPOETS. 591 WEST VIRGINIA. Period. ^?°* Vols. West Virginia Reports .... 1863 to . , 17 WISCONSIN. Burnetti 1842 to 1843 . . 1 Chandler^ 1849 to 1852 . . 4 Pinneyi 1836 to 1853 . . 3 Wisconsin Reports 1853 to . . 52 WYOMING. Wyoming Reports 1870 to 1878 . , 1 ^ Finney's Reports contain all cases decided between 1842 and thecases in Burnett's and Chandler's 1849. Reports, and in addition some other APPENDIX. APPENDIX, A CHRONOLOGICAL STATEMENT OF TifE PRINTED LAW REPORTS, AND OP THE CONTEMPORARY MANUSCRIPTS BY WHICH THEY MAY BE AUTHENTICATED AND IMPROVED.* HENRY III. — October 19, 1216. PRINTED REPORTS. Jenkins, Exchequer, 4, 19, 21. EDWARD I. —November 16, 1272. PRINTED REPORTS. Jenkins, Exchequer, 18, 34. Keilwey, K. B. and C. P. 6. Year Book Memoranda of the Exchequer only, Part I. 1 to 29. CONTEMPORARY MANUSCRIPTS. Lincoln's Inn Library. A Year Book, 17, 18, 19, 30, 31, and 32 Edw. I. 1 Reprinted from a very scarce Chancery Lane. I am ignorant of pamphlet, published in London in the author. 1834, by Richard Pheney, No. 117 See ante, " Remarks," § 35, p. 42, and pp. 61, 107 note. 596 APPENDIX. Bishop Moris's Collection, Public Library, Cambridge. 402. A Year Book, temp. Edw. I. Lansdowne Collection, British Museum. 564, 14. Reports of Adjudged Cases, temp. Edw. I. MSS. Middle Temple Library. Placita Coram Rege, temp. Edw. I. ; containing, as appears, a short state- ment of Records of Proceedings and Judgments in that King's Courts, in the several years of his reign. EDWARD II.— July 7, 1307. PRINTED REPORTS. Jenkins, Exchequer, 5, 15, 18. Tear Book, Part I. K. B., C. P., and Exch., 1 to 19. Maj-nard. CONTEMPORARY MANUSCRIPTS. Lincoln's Inn Library. Year Book, 1 to 20 Edw. II This MS. is entirely different from the printed Maynard's, Edw. II. ; containing many cases not in the latter, and such as are found in both being differently reported. — Return of Lincoln's Inn to Record Commission. Bishop Moris's MSS., Public Library, Cambridge. 306. A Year Book, temp. Edw. 11. 308. „ „ Edw. n. Bishop Tanner's Collection, Bodleian Library, Oxon. 13. Relationes Placitorum Vulgo diet. Year Book. Incipientes, anno 1 Edw. II. ; et Finientes, anno ultimo Edw. II. Harleian Collection, British Museum. 571. Collectanea de Annalibus Juridices Regni R. Edw. II. 572. Pars Annalium Juridicorum, Regni Regis Edw. 11. — This MS. differs in parts from the two following. 739, 1 to 11. Absti'acts from Year Books, 1 to 10 Edw. II. 739, 13. Year Book, 20 Edw. II. MEANS OF IMPROVEMENT. 597 835. Annales Juridice, ab anno prima to anno 13, inclusive. 2184. Part of a Year Book, temp. Edw. II., particularly as to his 5, 6, 7, 8, 13, and 14 years. 3283. A Year Book of the reign of Edw. II. 3639. Annales Juridice, ab anno 3 ad 19 Edw. II. Hargrave^s Collection, British Museum. 210. Year Book, several years of Edw. II. EDWARD III.— Januart 25, 1327. PRINTED REPORTS. Benloe, K. B. and C. P., 32. Jenkins, Exchequer, 1 to 47. Keilwey, K. B. and C. P., 1 to 47. Year Book, K. B. and C. P., Part II. 1 to 10. „ „ ,, Part III. 17, 18, 21 to 30, 38, and 39. „ „ „ Part IV. 40 to 50. ,, ,, ,, Part V. Liber Assisarum, 1 to 51. CONTEMPORARY MANUSCRIPTS. Lincoln's Inn Library. . Year Book, 1 to 46 Edw. III. Inner Temple Library. Year Book from 10 to 16 Edw. III., inclusive. — " This Year Book is extremely valuable, the whole of the period to which it relates, except the 10th year, being deficient in the printed copies. It is very fairly written in a coeval hand; and upon examining the 10th year with the printed copy, they appear so nearly alike as to induce a belief that this MS. for that year was used in the printed edition." — Return of the Inner Temple to Record Commission. Year Book; contains anni 38, 40, 41, 42, Edw. III.; 3 Hen. VI. — The handwriting in which this MS. is written is not coeval. A Volume of Reports, in which there are a few Cases in the reigns of Edw. III., Hen. VI., but chiefly temp. P. & M. and Eliz. Bishop Tanner's Collection, Bodleian Library, Oxon. 260. Liber Annalium a Termino Hilar, anno R. R. Edw. III., usque ad Term Michs. anno R. Edw. III. 598 APPENDIX. Bishop Moris's Collection, Public Library, Cambridge. 180. Liber Annalis, temp. Regis Edw. III. , annis 5, 6, 7, 8, 9. 307. A Year Book, temp. King Edw. III. 309 to 316 and 325. Eight Vols. Year Books, temp. Edw. III., Rich. 11., Hen. IV., v., VI., Rich. III. Hargrave Collection, British Museum. 297. Reps. HU. 40 Edw. III., to Mich. 45 Edw, in. Harleian Collection, British Museum. 3636. Annales Juridioi, ab anno 2 ad 10 Edw. m. 3626. „ „ „ 3 ad 10 Edw. HI. 739, 14 to 24. Year Books, 1 to 11 Edw. III. 740, 3 to 14. „ 1 to 11 Edw. III. 741, 13 to 19. „ 13 to 19 Edw. III. 741, 21 to 22. „ 20 to 21 Edw. III. 811, 1. Part of Year Book, temp. Edw. III., 19 to 31, the latter part of the 35th year, the 36th, 37th, and greater part of the 38th years. 3283. A Year Book, temp. 3, &c., Law French. Lansdowne Collection, British Museum. 1074, 23. Entries of several sorts of Pleadings on Record, temp. Edw. HI., Hen. VL and VH. RICHARD II.— June 21, 1377. PRINTED KEPORTS. Bellewe, K. B. and C. P., 1 to 22. Jenkins, Exchequer, 1 to 22. CONTEMPORAET MANUSCRIPTS. Lincoln's Inn Library. Year Book, 2, 6, 7, 8, 11, 12, 13, Rich. II. Bishop Moris's Collection, Public Library, Cambridge. 312. Year Book, temp. Rich. II. MEANS OF IMPROVEMENT. 599 Lansdoione Collection, British Museum. 557. The Year Book, or Juridical Annals during the reign of Rich. II. — TJie Year Books of this reign have never been printed. This MS. and the two above, in Lincoln's Inn Library, and Public Library, Cambridge, will fill up the chasm of this reign in the Year Books. HENRY IV. — September 29, 1399. PRINTED REPORTS. Jenkins, Exchequer, 1 to 14. Year Book, K. B. and C. P., Part VI. 1 to 14. CONTEMPORARY MANUSCRIPTS. Lincoln's Inn Library. Year Book, 2, 8, 11, 13 Hen. IV. Bishop Tanner's Collection, Bodleian Library, Oxon. 250. Reports in the time of Hen. IV. Bishop Moris's Collection in Public Library, Cambridge. 310. A Year Book, temp. Hen. IV., &c. ol2. ), „ )i >) Harleian Collection, British Museum. 5142 to 5. Term Reps. 26 Hen. VIII. to 19 Eliz., with some of Hen. IV. andV. Hargrave's Collection, British Museum. 1. A Year Book, beginning Mich. 2 Hen. IV., and ending Easter 9 Hen. V. ; and see note in Hen. V. 600 APPENDIX. HENEY v. — Majech 20, 1413. PRINTED REPORTS. Jenkins, Exchequer, 1 to 10. Year Book, K. B. and C. P., Part VI. 1, 2, 5, and 7 to 10. CONTEMPORAET MANUSCRIPTS. Lincoln's Inn Library. Year Book, 1, 5, 9. Bishop Moris's Collection, Public Library, Cambridge. 310. Year Book, temp. Hen. V. 312. „ ■"„ Hen. V. 5142 to 5. Term Keps. 26 Hen. VIII. to 19 Eliz., with some of Hen. IV. andV. Hargrave's Collection, British Museum. 1. A Year Book, beginning Mich. 2 Hen. IV., and ending Easter 9 Hen. V. — Several Cases in this MS. are given in the same words as in the printed Year Books of the same time. Mr. Hargrave was of opinion that the other Cases were mostly, or wholly, in print; the writing is a very ancient Com-t-hand. The Volume appears heretofore to have belonged to the Yelverton Collection. *j(* If the description of this volume be accurate, it must contain the years of Hen. V. not in the printed Year Books, viz., the 3d, 4th, and 6th years. HENRY VI.— August 31, 1422. FEINTED REPORTS. Benloe, K. B. and C. P., 2, 18. Jenkins, Exchequer, 1 to 39. Year Book, K. B. and C. P. Parts VII. and VIII. 1 to 4, 7 to 12, 14, 18 to 22, 27, 28, 30 to 39. CONTEMPORARY MANUSCRIPTS. Lincoln's Inn Library. Year Book, 1, 2, 3 Hen. VI. MEANS OP IMPEOTEMBNT. 601 Inner Temple Library. A Volume of Keps. in -which there are a few Cases of Edw. III. and Hen. VI. Bishop Moris's Collection, Public Library, Cambridge. 309. A Year Book, temp. Hen. VI. 310. „ „ Hen. VI. 311. „ „ Hen. VI. Harleian Collection, British Museum. 4585. Reports from 24 Hen. VI. to end of Eliz. — The name of Eobert Payne! is in this Book ; then follow Ex-Libro Francisci Moore, Mititis servientis ad legem scripto propria manu ipsius. 4557. Reports, 11 to 22 Hen. VI. —In the first leaf of this MS. is this, in the handwriting of Robert Paynel: '^ Note, in this Book are the 13 and 14 years of Hen. VI., which are not in the printed books." Lansdowne Collection, British Museum,. 1074, 23. Entries of several sorts of Pleading on Record, temp. Edw. HI., Hen. VI. and VII. EDWARD IV. — March 4, 1461. FEINTED EEPOETS. Jenkins, Exchequer, 1 to 22. Year Book, Annals, K. B. and C. P., Part IX. 1 to 22. Year Book, Reports, K. B., C. P., and Exch., Part X. 5th Long Quinto. CONTEMPOEAEY MANUSCRIPTS. Harleian Collection, British Museum. 4585. Reports, 24 Hen. VI. to the end of Elizabeth. 1345. Extracts from Year Books of Edw. IV. 1691, 1. Various Reports, Edw. IV., Hen. VII., &c. Hargrave's Collection, British Museum. 105. Reports, East. T. 22 Edw. IV. to 21 Hen. VII. (Latin>. 602 APPENDIX. EDWARD v.— April 9, 1483. PRINTED REPORTS. Jenkins, Exchequer. Year Books, K. C. and C. P., Part XI. CONTEMPORARY MANUSOKIPTS. Harleian Collection, British Museum. 1345, 4. Extracts from Year Books, temp. Edw. V. 4585. Reports, 24 Hen. VI. to the end of Elizabeth. Lansdoume Collection, British Museum. 105. Reports, Easter Term, 22 Edw. IV., Edw. V., Rich, in., to 21 Hen. VII. EICHAED III— June 22, 1483. PRINTED REPORTS. Jenkins, Exchequer, 1 and 2. Year Book, K. B. and C. P., Part XI. 1 and 2. CONTEMPORARY MANUSCRIPTS. Bishop Moris' s Collection, Public Library, Cambridge. 310. Year Book, Rich. III. Eargraveh Collection, British Museum. 105. Reports, Edw. IV. and V., Rich. HI., and Hen. VTI. Harleian Collection, British Museum. 1345, 5. Year Book Extracts, temp. Rich. III. 4585. Reports, 24 Hen. VI. to the end of Elizabeth. HENRY VII.— April 22, 1485. PRINTED REPORTS. Benloe, K. B. and C. P., 1. Jenkins, Exchequer, 1 to 24. MEANS OF IMPROVEMENT. 603 Keilwey, K. B. and C. P., 12, 13, 17 to 24. Moore, K. B., C. P., Exch., and Chancery, 1 to 24. Year Book, K. B. and C. P., Part XI., I'to 16, 20 to 24. CONTEMPORARY MANUSCRIPTS. Lansdowne Collection, British Museum. 1074, 23. Entries of several sorts of Pleading on Record, temp. Edw. III., Hen. VI. and Vll. Harleian Collection, British Museum. 1345, 3. Extracts from, Year Books, temp. Hen. VII. 1691, 2. Various Reports, temp. Edw. IV. and Hen. VII., &c. 1624, 1. Reports, anno 4 Hen. VII. to the last year of his reign. Lansdowne Collection, British Museum. 105. Reports, East. Term, 22 Edw. IV. to 21 Hen. VII. (Latin). HENRY VIII.— April 22, 1509. PRINTED REPORTS. Anderson, C. P., 25, &c. Benloe, C. P., 1 to 38. New Benloe, K. B., C. P., and Exch., 22, &c. Benloe, Keilwey and Ashe, K. B., C. P., and Exch. Brooks's New Cases, K. B., C. P. , and Exch. Dalison, C. P., 38. Dyer, K. B., C. P., Exch., and Chan., 4, &c. Jenkins, Exchequer, 1 to 38. Keilwey, K. B. and C. P., 1 to 11, and 21. Moore, K. B., C. P., Exch. and Chan., 3. Year Book, K. B. and C. P., Part XI. 13, 14, 18, 19, 26, 27, CONTEMPORARY MANUSCRIPTS. Lansdowne Collection, British Museum. 1077. A miscellaneous irregular Collection of Reports of Cases, from Hen. VIII. to Car. I., by T. Levinge, Serjeant-at-Law; to which is added a Collection of Cases in C. P., 1653 to 1663, by R. Levinge, Barrister-at-Law, of Inner Temple, and Recorder of Chester. 604 APPENDIX. 1059. Containing Reports of Sir F. Moore, transcribed, but not abridged, from his own MSS. Although these are not the whole of Moore's Reports, there are many amongst them not to be found in the printed copy. Harleian Collection, British Museum. 1345, 2. Extracts from Year Book, Hen. VIII., 12 to 27 years. 355. A Paper Book, wherein are contained the Reports of Mr. Serjeant Benlow, with Indexes prefixed. 4817. Anderson and Warburton'.s Reports. The Reports of Mr. Justice Warburton begin at folio 152. 1691, 2. Various Reports, temp. Hen. VIII. 1715, 2. Reports of Pleadings had in the Courts at Westminster, extracted from the Plea Rolls of Hen. VIII. 1624, 2. Reports, anni 1, 6, 9, 11, 17 Hen. VIII. 5142 to 5. Four Volumes of Term Reports in Law French and English, 26 Hen. VIII. to 19 Eliz., &c. 4585. Reports, 24 Hen. VI. to the end of Elizabeth. Hargrave's Collection, British Museum. 2. Reports, 28 Hen. VIII. to 38 Hen. VIII., Edw. VI., and part of Queen Mary's. — The printed Year Books terminate Trin. 27 Hen. VIII. ; but these Reports extend to and include the whole of that reign, the reign of Edw. VI., and pai-t of Queen Mary's. 8. Reports, temp. Hen. VIII., Philip and Mary, and Elizabeth. 4. Reports collected from the reigns of Hen. VIII., Edw. VI., Philip and Mary, and Elizabeth. 6. Reports by Judge Harper, Mich. 37 Hen. VIII. to Mich. 26 and 27 Elizabeth. 33, 2. Extracts from Benlow's Reports, temp. Hen. VIH., Philip and Maiy, and Elizabeth. 388, 1. Reports of Cases, 1 to 32 Hen. VIII. 388, 4. Reports of Cases, temp. Hen. VIII. EDWARD VI.— January 28, 1547. PRINTED REPORTS. Anderson, C. P., 1 to 6. Benloe and Dalison, C. P., 2. Brooks's New Cases, K. B., C. P., and Exch. New Benloe, K. B., C. P., and Exch., 1 to 6. Dyer, K. B., C. P., Exch. and Chan., 1 to 6. Jenkins, Exchequer, 1 to 6. Moore, K. B., C. P., Exch. and Chan., 1 to 6. Plowden, K. B., C. P., and Exch., 4 to 6. MEANS OF IMPEOVEMENT. 605 CONTEMPOEAET MANUSCRIPTS. Lansdowne Collection, British Museum. 1077. An irregular Collection of Reports, by T. Levinge, Hen. VIII. to Car. I. ; to which is added, Cases in Com. Pleas, 1653-1663, by R. Levinge, of Inner Temple, and Recorder of Chester. Harleian Collection, British Museum. 5141. Law Cases, 6 Edw. VI., and 1, 2, 3, 4, and 5 Philip and Mary, by Justice Wm. Dalison, in law French. 6681. A Quarto, containing the Second Book of Plowden's Reports, with Tables prefixed. 5142 to 5. Terra Reports, 25 Hen. VIII., Edw. VI., Philip and Mary to 19 Elizabeth. 4585. Reports, 24 Hen. VI. to the end of Elizabeth. 355. Mr. Serjeant Benlow's Reports, with Indexes. 4817. Anderson and Warburton's Reports. Hargrave's Collection, British Museum. 2. Reports, 28 Hen. VIII. to 38 Hen. VIII., Edw. VI., and part of Queen Mary's. — The printed Year Books terminate Trin. 27 Hen. VIII. ; but these Reports extend to, and include, the whole of that reign, the reign of Edw. VI., and part of Queen Mary's. 3. Reports, temp. Hen. VIII., Philip and Mary, and Eliz. 4. Reports collected from the reigns of Hen. VIII., Edw. VI., Philip and Mary, and Eliz. 6. Reports by Judge Harper, Mich. 37 Hen. VIII. to Mich. 26 and 27 Eliz. PHILIP AND MARY. — July 6, 1553, FEINTED EEPOETS. Anderson, C. P., 1 to 6. Benloe and Dalison, C. P., 1 to 5. Benloe in Keilwey and Ashe, K. B., C. P., and Exch., 1 to 5. New Benloe, K. B., C. P., and Exch., 1 to 5. Brooks's New Cases, K. B., C. P., and Exch., 1 to 5. Gary's Chancery, 5. Dalison in Keilwey and Ashe, C. P., 1, 4, and 5. Dyer's K. B., C. P., Exch., and Chan., 1 to 5. 606 APPENDIX. Jenkins, Exchequer, 1 to 5. Leonard, K. B., C. P., and Exch., 1 to 5. Moore, K. B., C. P., Exch., and Chan., 1 to 5. Owen, K. B. and C. P., 4 to 5. Plowden, K. B., C. P., and Exch., 1 to 5. CONTEMPORARY MANUSCEIPTS. Lansdoione Collection, British Museum. 1072. A Collection of Cases, temp. Mary and Elizabeth, transcribed from Harper. — Mr. Umfreville, the late possessor of this MS., says in a note: " This Book, although a Copy, contains many Special Cases regnante Elizabeth." 1077. A Miscellaneous Collection of Cases, Hen. VIII. to Car. I., by T. Levinge, Sergeant-at-Law ; likewise Cases in C. P., 1653 to 1663, by R. Levinge, Recorder of Chester. Harleian Collection, British Museum. 5141, 1. Law Cases, 6 Edw. VI. ; 1, 2, 3, 4 and 5 PhiUp and Mary, by Justice Wm. Dalison, in law French. 1624, 3. Reports, anno 4 and 5 Philip and Mary. 5142 to 5. Term Reports, 26 Hen. VIII., Edw. VT., Philip and Mary, to 19 Eliz. ; with some Cases in Hen. IV. and V. 4585. Reports, 24 Hen. VI. to the ead of Elizabeth. 355. Mr. Serjeant Benlow's Reports, with Indexes. 4817. Anderson and Warburton's Reports. 6681. Plowden's Reports, Part II., with Tables. Inner Temple Library. A Collection of Reports, temp. Philip and Mary, and Elizabeth. Har grave's Collection, British Museum. 2. Reports, 28 Hen. VIII. to 38 Hen. VIII., Edw. VI., and part of Queen Mary. — The printed Year Books terminate Trin. 27 Hen. VIII. ; but these Reports extend to, and include, the whole of that reign, the reign of Edw. VI., and part of Queen Mary's. 3. Reports, temp. Hen. VIIT., Philip and IMary, and Elizabeth. 4. Reports collected from the reigns of Hen. VIII., Edw. VI., Philip and Mary, and Elizabeth. 6. Reports by Judge Harper, jMich. 37 Hen. VIII., to Mich. 26 and 27 Elizabeth. 33, 2. Extracts from Benlow's Reports, temp. Hen. VIII., Philip and Mary, and Elizabeth. 388, 5. Cases, temp. Philip and Mary, and Elizabeth. MEAN'S OP IMPKOVEMENT. 607 ELIZABETH.— November 7, 1558. PRINTED REPORTS. Anderson, C. P., 1 to 45. Bendloe, K. B., C. P., and Exch., 1 to 17. Benloe in Keilwey and Ashe, K. B., C. P., and Exch., 2 to 20 Benloe, C. P., 1 to 21. Brownlow and Goldesborough, C. P., 11 to 45. Gary, Chancery, 1 to 45. Coke, K. B., C. P., Exch., and Chan., 14 to 45. Croke, K. B., and C. P., 24 to 45. DaUson, C. P., 1 to 16. Dalison in Keilwey and Ashe, C. P., 2 to 7. Dickens, Chancer^', a few Cases. Dyer, K. B. and C. P., 1 to 23. Godbolt, in all the Courts, 17 to 45. Gouldsborough, in all the Courts, 28 to 31, 39 to 43. Hobart, in all the Courts, a few Cases. Button, C. P., 26 to 38. Jenkins, Exchequer, 1 to 45. Leonard, K. B., C. P., and Exch., 1 to 45. Moore, K. B., C. P., Exch., and Chan., 1 to 45. Noy, K. B. and C. P., 1 to 45. Owen, K. B. and C. P., 1 to 45. Plowden, K. B., C. P., and Exch., 1 to 21. Popham, K. B., C. P., and Chan., 34 to 39. Savile, C. P. and Exch., 22 to 36. Tothill, Chancer}', 1 to 45. Yelverton, K. B., 44 and 45. CONTEMPORAKT MANUSCRIPTS. Lansdowne Collection, British Museum. 582. Short Notes of Cases at Common Law, temp. Eliz. and Jac. L 1057. A large Collection of Cases, Pleadings, and Keports, in various Courts, temp. Elizabeth. At the beginning is the great case of Scroggs V. Colshill. 1060. A Collection of Reports of certain Cases adjudged, temp. Eliza- beth, in E. B., C. P., and Exchequer, by divers eminent persons; amongst whom are Justice Harper, Baron Savile, Sir J. Walter, and MatJJiew Ewens. From internal evidence this MS. was Mr. Powle's, and afterwards Mr. Umfreville's. It appears to have been written anterior to 38 Elizabeth. 608 APPENDIX. 1061. Keports of Cases between 28 Eliz. and 11 Jac. I. 1065. „ „ K. B., Hil. 41 to Mich. 43 Eliz. 599. Reports of Cases in Chancery, collected from the Records of the Court. 1058. Reports, K. B., East. 43 to Hil. 45 Eliz. 1172, 1. Reports of Cases, temp. Eliz. and Jac. I. 1067. Reports, K. B., 14 to 43 Eliz. 1058. A Collection of Cases in various years, during the reign of Eliza- beth. Mr. UmfrevUle calls this volume "a copy from a good collection." 1074, 24. Reports, K. B., Hil. to Mich. 39 Eliz. " Qui sunt bans," says Mr. Umfreville. 1074, 24. Various Reports in Com. Pleas, from 40 Eliz. to 1 Jac. I. 1072. A Collection of Cases, temp. Mary and Elizabeth, from Judge Har- per. See Mr. Umfreville's note to this number, PbUip and Mary. 1073. Cases, C. P., from 28 to 37 Eliz. 1076. Reports, K. B. and C. P., 25 to 42 Eliz. 1077. A Miscellaneous Collection of Cases and Reports, Hen. VHI. to Car. I., by Serjeant T. Levinge; and Cases in C. P. 1653 to 1663, by R. Levinge, Recorder of Chester. 1078. Reports of Cases, K. B. temp. Eliz., written at the time. 1084. A Miscellaneous Collection of Cases, &c. , temp. Eliz.; amongst ■which, at fol. 36, will be found some Reports of Ch. Jus. VVray. This volume has the Autograph of Mr. Calthorpe, but was writ- ten at the time before mentioned. 1086. Reports and Pleadings, temp. Eliz. 1087. A Collection of Cases in K. B., C. P., and Exch., 24 to 37 Eliz. Mr. Umfreville observes that many of the Cases in C. P. are reported in Anderson. 1088. Reports, K. B., 42 and 43 Eliz. 1095. Reports, K. B. and C. P., 6 to 36 Eliz.; at the end are a few Cases, 4 Car. I. 1099. Reports of Cases in K. B., 39 and 40 Eliz., by T. Fleming, after- wards Chief Justice. Some of these Cases have been printed in Coke's Reports, but they are much more fully reported in the pi-esent Collection, according to a remark made at the end of the Tables, where such cases are particularly named. 1101, 1. Sir J. Savile's Reports in the Exch., temp. Eliz. Mr. Umfre- ville says, "not in the printed Reports." 1101. 4. Reports of Cases in various years of Elizabeth. 1102. Reports of Cases in B. R. and C. B., 35 and 36 Eliz. 1103. Reports of a few Cases in C. P. in various years of Elizabeth. 1104. An Abridgment of Cases in K. B., C. P., and Exch., 6 to 41 Eliz. 1106. Reports of Cases in various years of Elizabeth, transcribed 1698. Some of the Marginal References are in the handwriting of Rob. Paynel. ( 1018. A part only of Yelverton's Reports. 1110, 2. Reports of Chancery Cases in divers years Queen Elizabeth. MEANS OF IMPROVEMENT. 609 1113. A Collection of Reports of Cases in divers Courts from 43 Eliz. to 10 Jae. I. " Seemingly in the handwriting of Mr. Siderfin; and see 1111 in Jac. 1." 1121. With Readings of Coke, &c. A few Cases, temp. Eliz. ; amongst them is Sir F. Bacon's argument in the great case of Pei-petui- ties, or Chudley's Case. 1079. Sir Edw. Coke's Reports, 12 and 13 Parts. 601, 1. A volume formerly belonging to Chief Justice Hale, whose Autograph is on it. " The 12th Part of Coke's Reports, said, in a note by Mr. Umfreville, to contain cases not in the printed copy." 1059. The Reports of Sir F. Moore, transcribed from his own MSS. ; although these are not the whole of Moore's Reports, there are many amongst them not to be found in the printed copy. Harleian Collection, British Museum. 1575. A Book of Reports, 37 Eliz. to 12 Jac. I. These Reports and such like, says a note, are not only useful to Students in our Common Law, but to Historians, Antiquaries, and Heralds, who, from these books, may gather many noble materials for illustrating the history of places and families. 1631, 1. Reports, law French, 23, 27, 33, to 40 Eliz. 1631, 4. Like Reports, but larger than the former, 36 to 40 Eliz. 1679, 1. Reports of Trials, Mich. 41 to Hil. 42 Eliz. 4558. Reports 39 Eliz., and 15 and 16 Jac. I. This book belonged to R. Paynell, of Gray's Inn. 4562. Reports Commini Banco, 26 to 32 Eliz. 4552. A Book of Precedents and Abridged Cases in Law, from 33 to 41 Eliz. 443, 4. Reports of Cases temp. Eliz., 27, 28, and 29 years. 443, 5. Reports and Shorter Notes touching divers Cases, adjudged 28 to 36 Eliz., both inclusive, with an Index. 3327. Exemplification of several Cases in the first five Books of Reports, Coke. 3920. Continuation of the above to the 11th Part. 1331. Reports, 27 to 30 Eliz., by Sir Ed. Hendon, afterwards a Baron of the Exchequer. 1636. A Manuscript of Hutton's Reports. 1059, 1, &c. A large Collection of detached Cases of this time. 1330, 1. Reports of Trials in the Star Chamber, 40 Eliz. to 4 Jac. I. 1330, 2. Reports of many Pleas and Trials in B. R. In this and the preceding Tract are many extraordinary Cases. 1693. Reports of Law Cases, argued in the Queen's Courts towards the latter end of Queen Elizabeth's reign. 1696. A pretty large Collection of Law Cases happening from 5 to 27 Eliz. inclusive. 1697. A Collection of Law Cases and Reports of Trials in the Queen's Bench, 36 to 40 Eliz. 89 610 APPENDIX. 1624, 4. Reports, anni 1, 2, 5, 7, 8, 9, 10, 14, 15, 23, 26, 27, 30, 31, 32, 34, 35, 36, 37, 38, and 39 Eliz., but not in the order of time as here stated. 514, 2 to 5. Terra Reports, 26 Hen. VIII. to 19 Eliz., with some of Hen. IV. and V. 1588, 1. Reports, ab anno 23 to 27 Eliz. inclusive. 1633. Reports of Law Cases tried in the Queen's Bench, anni 30, 31, 32, and 33 Eliz. 1722. A Collection of Reports, Trin. 27 Eliz. to Hil. 29 Eliz. "Which seem to be accurately taken." 2036, 1 to Many Terms in Elizabeth's reign. 4812. Reports from 29 to the 33d of Elizabeth. 4814. Miscellaneous Reports, temp. Eliz. and Jac. I. 4988. Reports in the Queen's Bench, 21 to 34 Eliz. 4998. Reports from 31 to 40 Eliz. 6686. Cases and Precedents in Law, from 33 Eliz. to 5 Jac. I. 6707. Proceedings in K. B. and Exch., temp. Eliz. 6745. Proceedings in the Queen's Bench, 35, 36, 37, 38 years of Queen Elizabeth. 4585. Reports from 24 Henry VI. to the end Eliz. 355. A volume containing the Reports of Mr. Serjeant Benlow. 4817. Anderson and Warburton's Reports. 6681. The 2d Part of Plowden's Reports, with tables. Inner Temple Library. A volume of Cases in Philip and Mary and Elizabeth. 9 volumes of Reports, K. B., C. P., and Exch., temp. Eliz., Jac. I., and Car. I. LincoMs Inn Library. A Collection of Reports, temp. Eliz., Jac. I., and Car. I. Hargrave's Collection., British Museum. 3. Repoi-ts temp. Hen. VIII., Philip and Mary, and Elizabeth. 4. Reports collected from the reigns of Hen. VIII. , Edw. VI. , Philip and Mary, and Eliz. 5. Reports by Lord Chief Baron Walter, being Cases temp. Eliz., with a short Account of the Reporter,,who lived till the 6 Car. I., in the handwriting of Mr. Umfreville. 6. Reports by Judge Harper, Mich. 37 Hen. VIII. to Mich. 26 and 27 Eliz. 7. Reports 36 to 41 Eliz., by Mr. Hy. Were, afterwards Judge of the Marshalsea. 8. Another copy of Harper's Reports, and a part of Sir J. Walter's Reports. 9. Exchequer Cases temp. Eliz., formerly in the Yelverton Collection. MEANS OF IMPROVEMENT. 611 10. Judge Harper's Reports, beginning 2 and ending 15 and 16 Eliz. At the end of these Reports is a learned argument proving the King's right to the Sea Lands and Salt Shores ; together with a Copy of a Decree in the Exchequer, upon an Information for an encroachment npon the river Thames, by the erection of houses. 11. Reports of Cases in K. B., C. P., and Exch., 24 to 30 Eliz. This volume was formerly in the Yelverton Collection, and con- tains, among other cases, a full Report of the famous Case of Fen wick and Mitford. 12. Reports in K. B. and C. P., collected by Mr. Godfrey, temp. Eliz. and Jac. I. 13. Reports, Mich. 42 Eliz. to Trin. 43 Eliz. 14. Cases in B. R. and C. B., Trin. .36 to Hil. 38 Eliz. 15. 2. Reports of Cases in K. B., C. P., and Exch., Eliz. and Jac. I. These Reports begin 9 Eliz., but are not in chronological order. 15, 8. Reports of various Cases in various years of Queen Elizabeth's reign, not placed chronologically. — The volume containing the last two numbers formerly belonged to the Yelverton Collec- tion, and Mr. Hargrave was of opinion that some of the cases in the time of Elizabeth, without the Reporter's name, were by Sir Christopher Yelverton. lY, 1. Reports, Hil. 32 Eliz. to Trin. 10 Jac, presumed, from internal evidence, to be by Sir Christopher Yelverton. 26. Reports, K. B., C. P., and Star Chamber, temp. Eliz., with difierent readings in the same reign: amongst the Reports, at folio 571, is a Collection of Cases by Sir James Dyer, not in print. 27, 2. Chief Justice Popham's Reports, beginning Mich. 34 Eliz., and ending Easter 39 Eliz. This MS. is bound with Chief Justice Hyde's Reports, in his own handwriting. The above Reports are attributed to Popham, by a title at the beginning in the handwriting of Lord Chief Justice Hyde. 29. Cases Eliz. and Jac. I. , in the Court of Wards and in the C. P. — The first part of this MS. contains Cases expressed to be taken from Mr. Noy's Reports, folio 1 ; the second is a Collection of Cases stated to be copied from Reports of a Mr. Deane, Reader of Gray's Inn, folio 145; the third is intituled Yelverton, folio 235, and contains only two Cases, the first of which is a very long and full Report of the case of Zangis against Wischard, about a right of towing-path next the river Lea, which Case is cited in 3 Term Reports, 258, from Serjeant Turner's MSS. 83, 2. Extracts from Bendlow's Reports, temp. Hen. VIII. , Philip and Mary, and Eliz. 34, 8. Cases of Error in Exchequer Chamber, temp. Eliz. and Jac. I. 37, 1. Reports temp. Eliz. and Jac. I., in the Exchequer Chamber, K. B., and C. P. 45. Notes taken in C. P. by Mr. Gouldsborough, one of the Prothono- taries of the same Court, concerning amendment of Writs and 612 APPENDIX. Records, and arresting of Judgment in all manner of actions. — " This collection of Notes by Gouldsborough seems quite dis- tinct both from the printed Reports with his name, and from the printed Collection with his and Brownlow's name, F. H." 50. Reports of Cases in B. R. and Exchequer, 34 to 39 Eliz., with Indexes. 51. Reports of Cases C. B. from 37 Eliz. to 39, by Mr. Duck, of Lin- coln's Inn, with Index. 88. Reports of Qases 33 to 39 Eliz., expressed to be in the proper hand of Ld. Ch. J. Popham. 150. Cases in C. B. 1656 and 1657, also from the 12 to 19 Car. II., by H. Darrell, Esq. , with cases and opinions of Hale, Maynard, and Finch, relative to Wills and Settlements. 213. Reports in the K. B., 42 and 43 Eliz. 281, 5. Causes in Chancery, gathered by Sir Gteorge Gary, one of the Masters of the Chancery. 356. K. B. Reports, 37 to 39 Eliz., with an Index to the Cases, in the handwriting of Mr. Umfreville. 373. A volume entitled by Mr. Umfreville, to whom it formerly belonged, as well as Mr. Hargrave, " Jordan's Collectanea," containing copies of Cases of the time of Queen Elizabeth, reprinted at large, and not elsewhere to be found. A Table of Cases is given, p. 246: at page 53 is Lord Coke's Report of the Judgment and part of the Arguments in Shelley's case in English. 374. Judge Harper's Reports temp. Eliz. 388, 5. Cases temp. Philip and Mary and Eliz. 403, 1. Reports of Cases temp. Eliz. JAMES I. — Makch 24, 1603. PRINTED KEPORTS. Anderson, C. P., 1. Benloe, K. B., C. P., and Exch., 19 to 23. Bridgman, C. P., 12 to 19. Brownlow and Goldesborough, C. P., 1 to 23. Bulstrode, K. B., 7to 15. Gary, Chancery, 1. Coke, K. B., C. P., Exch., and Chan., 1 to 13. Croke, K. B. and C. P., 1 to 23. Davies, K. B., C. P., and Exch., 2 to 9. Glanville, Election before Committee of H. C, 21 to 22. Godbolt, all the Courts, 1 to 23. Hobart, all the Courts, 1 to 23. Hutton, C. P., 10 to 23. MEANS OF IMPROVEMENT. 613 Jenkins, Exchequer, 1 to 21. Jones, William, K. B. and C. P., 18 to 23. Lane, Exchequer, 3 to 9. Leonard, K. B., C. P., and Exch., 1 to 12. Ley, K. B., C. P., Exch., and Court of Wards, 6 to 23. Moore, K. B., C. P., Exch., and Chan., 1 to 18. Noy, K. B. and C. P., 1 to 23. Owen, K. B. and C. P., 1 to 12. Palmer, K. B., 17 to 23. Pophara, K. B., C. P., and Chan., 15 to 23. Keports in Chancery, 13. Eolle, K. B., 12 to 22. Tothill, Chancery, 1 to 23. Winch, C.P., 19 to 23. Yelverton, K. B., 1 to 10. Contemporary Manuscripts. Lansdowne Collection, British Museum. 582. Short Notes of Cases at Common Law, temp. Eliz. and Jac. I. 1061. Reports of Cases between 28 Eliz. to 11 Jac. I. 1063. Keports of Cases in K. B. from 22 Jac. I. to 2 Car. I., by Ravenseroft. 1172, 1. Reports of cases temp. Eliz. and Jac. I. 1172, 2. Reports 4 Jac. I. — Said by Mr. Umfreville to be Yelverton's Collection, beginning at fol. 95 in pi'inted copy, and to be, per- haps, original. 1172, 4. Reports 7 to 9 Jac. I. — Said by Mr. Umfreville to be Yelverton's, beginning at page 153 of the printed copy. 1172, 5. Reports K. B., 8 Jac. I. 1172, 6. Reports K. B., 9 Jac. I. 1172, 7. Reports in the Exch., Mich. 8 Jac. I. to East. 10 Jac. I.— Said by Mr. Umfreville to be part of Lane's Reports. 1074, 24. Various Reports in C. P., from 4 Eliz. to 1 Jac. I. 1075. Cases concerning the Customs and Privileges of London temp. Jac. I., by Sir Henry Calthorpe, Recorder; at the end of them, fol. 40, is a Collection of K. B. Cases, 1 to 9 Jac. I. 1077. A Miscellaneous Collection of Reports, Hen. VIII. to Car. I., by T. Levinge, Serjeant-at-Law; likewise C. P. Reports, 1653 to 1663, by R. Levinge, Recorder of Chester. 1090. Lord Hobart's Book of Reports, K. B., &c., temp. Jac. I. 1091. Sir Humphrey Winch's Reports in C. P. temp. Jac. I. — Mr. Umfreville states, in a note on the first leaf, that these Reports, though printed as Judge Winch's, are by Mr. AUestree. 1093. A Collection of Cases, Special Pleadings, &c., temp. Jac. I. 1094. Ravencroft's Reports, Chan., K. B., C. P., Ex., and Star Chamber, 21 Jac. I. to 9 Car. L 614 APPENDIX. 1096. 6. Reports of Cases, K. B., 3 Jac. I. 1097. Reports of Cases in K. B., 20 and 21 Jac. I. 1098. Reports of Cases at the Assizes temp. Car. I., interspersed with some Exch. Cases, Jac. I. 1108. A part only of Sir H. Yelverton's Reports in K. B., being those which begin at 33, and end at page 148 of the printed copy. 1110. 1. Reports of Chancery Cases 9, 10, 12, 13 Jac. I., by an anon- ymous, but able, Person. 1111. Reports of Cases in K. B., &c., from 2 to 7 Jac. I. 1113. A Collection of Reports of Cases in divers Courts, from 43 Eliz. to 10 Jac. I. — Mr. Umfreville, with some reason, conceives the handwriting to be that of Mr. Sidei'fin [" which," says Mr. Heterick, " is the more pi-obable, as his son, in the Preface to 2d Siderfin's Reports, dated April 23, 1664, informs us that the Reporter, with his own hand, transcribed some volumes of Reports taken by judicious and learned authoi-s, for his private use."] 1112. Reports of Cases, 3 to 20 Jac. I. — At the end of the Volume is a Collection of Cases concerning Errors in the Exch. Chamber, printed in Moore's Reports. 120. The Original of Serjeant Ravenscroft's Reps., K. B. temp. Jac. I. 601, 1. A Volume, formerly belonging to Lord Hale, whose Autograph is on it. The 12th Part of Coke's Reps., said, in a note by Mr. Umfreville, to contain cases not in the printed copy. 485, 1. Mr. Serjeant Glanville's Election Cases, 21 and 22 Jac. I. 1080. Reports in K. B. from 15 to 21 Jac. I. — There is a long note in this work on the subject of Palmer's Reports, which Mr. Umfre- ville contends to be part of Godfrey's Reports, of which this Manuscript is likewise a portion. 1059. Containing Reports of Sir F. Moore, transcribed from his own Manuscript. — - Although these are not the whole of Moore's Reports, there are many amongst them not to be found in the printed copy. Harhian CoUeclion, British Museum. 1575. A Book of Reports, 37 Eliz. to 12 Jac. I. — See note to this No. in Elizabeth's reign. 1631, 5. Reports of Trials at Westminster, 1, 2, and 4 Jac. I. 1631, 8. Do. in B. R., 4 and 5 Jac. I. 1679, 2. Reports of Trials and Cases, Mich. 1 to Pasch., 11 Jac. I. 4558. Reports, 33 Eliz. to 15 and 16 Jac. I. — This Book belonged to Rob. Paynel, of Gray's Inn. 4561. Reports K. B., 13 and 14 Jac. I., with Index. 5131. Reports C. P., 5, 6, 7 Car. I. and 22 Jac. I. 6688, 3-4. Reports 2 and 3 Jac. I., law French. 6713. Proceedings K. B., 7, 8, 9, 10 Jac. I. 1330, 1. Reports and Trials in the Star Chamber, 40 Eliz. to 14 Jac. I. 1332, 2. Reports of Many Pleas and Trials in Banco Regis, 2, 3, 6, 7 Car. 1. — In this and the preceding Tract are many extraordinary MEANS OP IMPROVEMENT. 615 4813. Hutton's Reports. — A true copy of the MSS. written by the Judge's own hand, 15 Jao. I. to 14 Car. I. 1636. Another MS. Copy of Hutton's Reports. 4814. Miscellaneous Reports temp. Eliz. and Jac. I. 4815. 12th Part of Coke's Reports. — This MS. , says a note, is " not pub- lished in print." 6686. Cases and Precedents in Law, 33 Eliz. to 5 Jac. I. 855. Mr. Serjeant Benlow's Reports, with Indexes prefixed. 4817. Mr. Justice Anderson's Reports, and Mr. Justice Warburton's Reports of this time. Inner Temple Library. 9 vols, of Reports in K. B., C. P., and Exch., temp. Eliz., Jac. I., and Car. I. Lincoln's Inn Library. A Collection of Reports in the reigns of Elizabeth, Jao. I., and Car. I. Ilargrave's Collection, British Museum. 12. Reports of Cases K. B. and C. P., collected by Mr. Godfrey, temp. Eliz. and Jac. I. 15, 9. Reports of Cases inC. B., beginning East. 8, and ending East. 11 Jac. I. 15, 10. Reports, by Mr. Pettie, taken in K. B., beginning Hil. 9 Jac. I., and ending Mich. 10 Jac. I. — Mr. Hargrave was of opinion that these Reports temp. Jac. I. were by Sir H. Yelver- ton, son of Sir Christopher Yelverton. 16, Sir Hy. Calthorpe's copy of Lane's Exch. Reports temp. Jac. I. — Mr. Hargrave has written this note at the beginning: " I find that this MS. copy of Lane's Reports contains matter not in the printed book. The cases of Airi and Alcock, which is here in fol. 66 and 206, and in the printed book page 33, is an instance; the latter has not the first part of the case." 17, 1. Reports Hil. 32 Eliz. to Trin. 10 Jac. I. — Presumed, from in- ternal evidence, to be by Sir Christopher Yelverton. 17. 4. Sir Christopher Yelverton's Argument, in the Exchequer Cham- ber, in the Case of Post Nati, 7 May, 1608, 6 Jac. I. 18. Cases in B. R., in the 9 and 10 Jac. I., with Lidexes. 19. Reports, by Mr. Antony Mills, of Cases in C. B., beginning Mich. 2 Jac. I., ending Hil. same year. 20. Reports in B. R., 13 and 14 Jac. I., supposed, by Mr. Hargrave, to be a MS. copy of part of Rolle's Reports, having many cases reported in the same words as in vol. 1 of that work. 21. Reports in B. R., from 17 to 20 Jao. I., with Indexes. — On ex- amination, several cases appear to be the same as in Palmer's Reports. , 616 APPENDIX. 22. Judge Button's Reports of Cases in the time of Jac. I. and Car. I., ■with Indexes. — A Note at the beginning says, " 9 Aug. 1793. This MS. copy of Hutton's Reports does not seem quite so copious as my other MS. copy (see Numb. 46), but I calculate that it contains at least twice as many cases as are in the printed copies. It begins and ends like the printed Reports, and has not the full account of Judge Hutton's case with Harrison, which my other copy contains, but only the short Report in print. — Francis Hargrove." 28. Reports of Cases C. B., temp. Jac. I. This MS. consists of two Parts : the first is a copy of part of Hobart's Reports; the second is intituled "Reps, incerti Authoris." Some of the Cases in this latter Part are in Hobart, but the Report is by a different hand, and the Cases are more fully given. 30. Reports of Cases in the Courts of Chancery, King's Bench, and Exchequer, in the reign of Jac. and Car. I., by Arthur Turner. The author of these Reports is stated, in a note by Mr. Umfreville, who formerly possessed this volume, to have been called to the degree of Serjeant, in Trinity Term, 12 Car. I. ; and to have been the father of Sir Edward Turner, who was Speaker of the House of Commons in the reign of Car. II., and made Chief Baron of the Exchequer, May 23, 1671. 81. Reports of Cases in the Exchequer Chamber and C. B., from Mich. 15 to Mich. 18 Jac. I. 32, Reports of Cases in B. R., East. 7 Jac. I., to Trin. 10 Jac. I. 38, 1. Reports in the Exch. from 3 to 12 Jac. I. These Cases are stated, by a former possessor of the book, to be chiefly by Lane, and to contain many Cases not in the printed collection. 33, 4. A copy of the Record in Fuller's case, Trin. 5 Jac. I. 34, 2. Calthorpe's Cases respecting the Customs of London; and see Nos. 35 and 36. 34, 6. Part of Sir Edward Coke's 12th Report. 34, 8. Cases of Error in the Exchequer Chamber and other Courts, temp. Eliz. and Jac. I. 37, 1. Reports temp. Eliz. and Jac. I., in the Exchequer Chamber, K. B., and C. P. 46. Reports in Common Bank, from Trin. 15 Jac. I. to Trin. 14 Car. I., inclusive, by Judge Hutton. On the first leaf is this note: " 9th Aug. 1793. This volume, upon examination, I find to contain about twice as much in quantity as is in the printed edition of Hutton's Reports. The disproportion in the numr ber of Cases is still greater ; for this book, according to the table prefixed, contains three hundred ; whereas the printed book, according to its table, has only seventy- two. — F. H." 47, 2. Cases B. R. 13 Jac. I. 52. Cases in C. B., beginning Hil. 6 Jac. I., and ending Trin. 8 Jac. I. 174. Cases in Chancery in the reigns of Jac. I., Car. I. and II. " These Cases are at the beginning stated to be from Docquets of Decrees, MEANS OP IMPROVEMENT. 617 Sec, in the office of John Wilkinson, Esq., one of the Six Clerks in Chancery. After the first 82 pages, many of the cases are printed in the book, called 1 Chan. Cases. — F. H." 317. The Reports of Sir William Jones, one of the Justices of the Com- mon Pleas, in the latter part of the reign of James I., and in the early part of Car. I., translated into English by Mr. Hargrave, before he was called to the Bar. 362. Reports in B. E. and C. B. from 20 Jac. 1 to 4 Car. I., by Robert Paynell, Esq. 385, 386, 387. Sir Henry Calthorpe's Reports, temp. Jac. I. and Car. I. ; vols. 1 and 2. CHARLES I.^May 27, 1625. PRINTED REPORTS. Aleyn, K. B., 22 to 24. Bendloe, K. B., C. P., and Exch., 1 to 3. Bulstrode, K. B., 1 to 14. Clayton's Pleas of Assises at Yorke, 7 to 24. Croke, K. B. and C. P., 1 to 16. Godbolt, all the Courts, 1 to 13. Hetley, C. P., 3 to 7. Hutton, C. P., 1 to 14. Jones, WUliam, K. B. and C. P., 1 to 16. Latch, K. B., 1 to 3. Ley, K. B., C. P., Exchequer and Court of Wards, 1 to 4. Littleton, C. P. and Exch., 2 to 7. March, K. B. and C. P., 15 to 18. Nelson, Chancery, 1 to 24. Noy, K. B. and C. P., 1 to 24. Palmer, K. B. and C. P., 1 to 4. Popham, K. B., C. P., and Chan., 1 to 2. Reports in Chancery, 1 to 24. Style, K. B., 21 to 24. Tothill, Chancery, 1 to 21. CONTEMPORARY MAN0SCRIPTS. Lansdowne Collection, BritisTi Museum. 580. Notes and Arguments of Cases at Common Law, in the reign of Car. I. 1063. Reports of Cases K. B. from 22 Jac. I. to 2 Car. 1. 618 APPENDIX. 1064. Reports of Cases in K. B. from 14 Car. I. to 2 Jao. II. 595. Short Notes of Cases in K. B. temp. Car. I. 1066. Reports in the Upper Bench, 1650 to 1659. At folio 259 is the case of Forster v. Barringtoo, 1659, concerning the privilege of officers of the Exchequer to be sued in their own Court. 1077. A Miscellaneous Collection of Reports, Hen. VIII. to Car. I. ; with a collection of Cases, at folio 67, in C. P., by R. Levinge, Recorder of Chester, from 1653 to 1663. 1081. A large Collection of Reports in K. B., C. P., and Exchequer, 11 to 15 Car. I. 1082. Reports in C. P., 11 and 12 Car. I. 1083. Reports of Sir T. Widdrington in the K. B., and Robert Paynell's Reports in the Exch. temp. Car. I. Mr. Umfreville remarked that many of the Records of the Exchequer having been lost by fire, Paynell's Reports are become very valuable, and from the known integrity of the author may be depended on as authentic ; with Biographical Notices of the authors. See pages 1 and 355 of the MSS. ; and see No. 1092 following. 1092. Another copy of Widdrington's Reports, with some variations from the former. Mr. Umfreville remarks that many of these Cases will correct the erroneous impressions in Latch. 1094. Ravenscroft's Reports in Chan., K. B., C. P., and Exch. and Star Chamber, 21 Jac. I. to 9 Car. I. 1085. Reports, K. B., 8 to 7 Car. I. 1089. Ditto of Cases in K. B., 4 to 18 Car. I. 1095. Reports, K. B. and C. P., 6 to 36 Eliz. At the end are a few Cases, 4 Car. I. 1098. Reports of Cases at the Assises, temp. Car. I., interspersed with some Exch. Cases Jac. I. 1100. Reports of Cases in the K. B. , 2 to 4 Car. I. 1100. An original CoUeotion of Reports in the Upper Bench, 1654-1673. Harleian Collection, British Museum. 298, 4. Sir Simon D'Ewes's Reports, Trin. and Mich. 1 Car. I. 1631, 9. Reports of Trials in B. R., 9 Car. I. 5131, 1. Reports, C. P., 5, 6, 7 Car. I., and 21Jac. 1. 4553, 1. A Collection of Precedents and Adjudged Cases in Law, from 2 to 5 Car. I. 1330, 2. Reports of many Pleas and Trials in B. R. , 2, 3, 6, 7 Car. I. 1694, 2. Reports in B. R., 9 Car. I. 4811. Reports in Court of K. B. from 9 to 14 Car. I. 4813. Hutton's Reports, a true copy of the MS. written with the Judge's own hand, 15 Jac. 1 to 14 Car. 2. See also 1636. 4816. Cases, 5 to 9 Car. I. 355. Mr. Serjeant Benlow's Reports, with Indexes prefixed. 1636. A MS. Copy of Hutton's Reports. See also 4813. MEANS OF IMPROVEMENT. 619 Inner Temple Library. 9 Vols, of Cases in K. B., C. P., and Exch., temp. Eliz., Jac. I., and Car. I. LincoWs Inn Library. A Collection of Reports ia the reigns of Eliz., Jac. I., and Car. I. Hargrave's Collection, British Museum. 22. Judge Hutton's Reports, temp. Jae. I. and Car. I. See note to this number in Elizateth. 23. Reports of Cases in C. B., beginning Mich. 12 Car. I., and ending Trin. 1656, by Thomas Cory, Chief Prothonotary of that Court; with Indexes. On a leaf at the beginning of this volume is the following annotation by a former possessor, Mr. Umfreville: " This Note-book is much estimated, as it contains a collection of very many Cases determined upon Demurrers and Special Verdicts, debated and determined Communi Banco, few whereof are elsewhere to be found. — E. U." 24. Reports of Cases in the K. B., Chan., and Exch., but chiefly in the former Courts, from the 1st to the 8th Car. I. ; with Indexes. 25. 1. Reports of Cases argued and adjudged in the Court of K. B., 1 to 8 Car. I. The Cases are not chronologically arranged; but there are Indexes to the cases and matter. 27, 4. Reports of Cases in the K. B. and Star Chamber, beginning Trin. 3 Car. I., and ending Trin. 7 Car. I., by Sir Nicholas Hyde, Chief Justice K. B. The following note accompanied the title of this volume in the MS. catalogue, delivered with the Hargrave Collection : — The Reports, by Lord Chief Justice Hyde, are in his own handwriting; the other Reports are attributed to Popham, by a title at the beginning, in the handwriting of Lord Chief Justice Hyde. In 3 Keble, 467 (?), there is a citing of these Reports of Hyde, by Lord Hale. This MS. was formerly a part of the collection of the first Duke of Chandos, and it was once the book of Sir Rob. Hyde, Chief Justice of B. R. in the reign of King Car. II., and nephew of Sir Nicholas Hyde. In fol. 97 of this MS. Lord Chief Justice Hyde gives a very particular and curious account of the manner in which King Car. I., previously to passing the Petition of Rights, consulted the Judges secretly on the claimed Right of the King to commit without showing cause, and on the effect which the Petition might have on his prerogative. The questions to the Judges, and their answers, are given at length. And this account of a Transaction, which does not appear to be noticed in print, concludes with other circumstances which attended the passing of the Petition of Rights. 620 APPENDIX. 27, 6. Coriton's Case, K. B., Trin. 13 Car. I. 30. Reports in the Courts of Chancery, K. B., and Exch., in Jac. I. and Car. I., by A. Turner. 35, 36. Select Arguments in Parliament and other Courts, by Sir Hy. Calthorpe, Recorder of London, with Indexes. " Amongst the arguments in the first vol. is one upon the case of Habeas Corpus, in the 3d of Car. I., on a commitment for refusing a loan to the King; with two or three others upon great State Cases in the same reign." 38, 39. Reports by Serj. Widdrington in B. R., from 1 to 7 Car. I., in 2 vols., with Indexes. In the beginning of vol. 1 these books are styled " Mr. Justice Wadham Wyndham's Copy of Widdring- ton's Reports." Amongst the cases, one is of Mr. Seldon, &c., on Habeas Corpus, in Trin. 5 Car. I. ; and it is observable that Mr. Rushworth, in his collections relative to the same case, pro- fesses to take part of them from Widdrington's Reports. See Rush. 679, and Appendix 18. At the end of vol. 2 there is a distinct Collection of Widdring- ton's Reports, marked Liber K. This Part begins with East. 9 Car. I., and has a separate Index of names of cases. 40. Cases in K. B. and Exchequer Chamber, beginning East. 5 Car. I., ending East. 13 Car. I., by Sir Orlando Bridgman, Attorney- General to Car. II., while Prince of Wales, and, after the Resto- ration, successively, Lord Chief Baron of the Exchequer, Lord Chief Justice of the C. P., and Lord Keeper of the Great Seal. 41. Exch. Cases from Trin. 3 Car. I., to Hil. 4 Car. I., with names of cases at the beginning. 42. Reports of Cases in B. R., Hil. 14 Car. I., to East. 4 Car. U., with names of cases. 43. Reports chiefly of Cases in B. R., beginning Mich. 4 Car. I., and ending Hil. 20 Car. I., with Index. 44. Circuit Cases before the Judges of Assise and Nisi Prius, from 4 to 11 Car. I. 46. Judge Button's Reps. C. P., 15 Jac. I. to 14 Car. I., with Table of Cases. See note to this number in Jac. I. 47, 1. Cases in B. R. from Hil. 4 Car. I. to Trin. 8 Car. I. 53, 2. Reports of Cases in the K. B., 15, 16, and 17 Car. I., and of Cases in Chancery, in Mich. 1651, and also a few Cases in B. R. and C. B., 26 and 27 Car. U. 99. Reports of Cases determined in the Court of Chancery, principally in the reign of King Car. II. Some of the cases are in the reign of Car. I. See Case No. 1. "Many of these Reports are in totidem verbis, as in the printed Reports. Sometimes where the case is in print, the report here is a different one." See Cases Nos. 233, 276. " Some of the Cases are not given in the printed Reports." See Cases Nos. 322, 332, 126. 111. Cecly's Reports, temp. Car. I. MEANS OF IMPEOVEMBNT. ' 621 174. Cases in Chancery, temp. Jac. I., Car. I., and Car. II. See Note to this No. in Jac. I. 317. Mr. Hargrave's Translation of Sir Wm. Jones's Reports. See this No. in Jac. I. 362. Reports in B. R. and C. B., from 20 Jac. I. to 4 Car I., by Robert Paynell. 378. Reports in B. R., 8 to 15 Car. I. 383, 386, 387. Sir Henry Calthorpe's Reports temp. Jac. I. and Car. I., vols. 1 and 2. 404, 1. Notes of a few Cases, taken about the year 1638. 48. Cases in the Upper Bench, Mich. 1652 to Hil. 1657, with Index. 59. Cases and Determinations in 1653 and 1654, and some special Cases in the Exch. Chamber in the reign of Car. II. — In this collec- tion there is a Report of the Case of Manby and Scott, with Lord Chief Justice Hyde's argument in the Exch. Chamber, verbatim; there is also a Report of the famous case of Soame and Barnard- iston, containing the arguments of the Counsel B. R., and those of the Judges upon the Writ of Error in Exch. Chamber. 150. Cases in C. B., 1656 to 1657; also from the 12 to 19 Car. II., by H. DaiTel, with Cases and Opinions of Hale, Maynard, and Finch, relating to Wills. CHARLES II.— Mat 29, 1660. FEINTED KEPOKTS. Biidgman, O., C. P., 1 to 8. Carter, C. P., 16 to 27. Cases in Chancery. Part 1, 12 to 30. „ 2, 26 to 37. Clayton's Pleas of Assises at Yorke, 1 and 2. Dickens, Chancery, a few Cases. Finch, Chancery, 25 to 32. Freeman, K. B., C. P., Exch., and Chan., 22 to 37. Hardres, Exchequer, 7 to 21. Jones, T., K. B. and C. P., 19 to 37. Keble, K. B., 13 to 30. Kelyng, Sir J., Crown Cases, and in K. B., 14 to 20. Levinz, K. B. and C. P., 12 to 37. Lutwyche, C. P., 34 to 37. Modern, K. B., C. P., Exch. and Chan., vol. 1 and 2, 1 to 29. „ 3, 26 to 30. „ 3, 34 to 37. 622 APPENDIX. Nelson's Chancerj", 1 to 37. Parker, Exchequer, 30. PoUexfen, K. B., C. P., Exch., and Chan., 22 to 37. T. Raymond, K. B., C. P., and Exch., 12 to 35. Reports in Chancery, 1 to 37. Saunders, K. B., 18 to 24. Select Cases in Chancery, 33. Shower, K. B., 30 to 37. Siderfin, K. B., C. P., and Exch., 9 to 22. Skinner, K. B., 33 to 37. Style, K. B., 1 to 7. Vaughan, C. P., 17 to 25. Ventris, K. B., C. P., Exch., and Chan., 20 to 37. Vernon, Chancery, 32 to 37. CONTEMPOEAEY MANUSCEIPTS. Lansdolone Collection, British Museum. 596. Short Notes of sundry Law Cases temp. Car. I. 1064. Reports of Cases K. B., from 14 Car. I. to 2 Jac. II. 1077. A Miscellaneous Collection of Cases from Hen. VIII. to Car. I, with a Collection of Cases in C. P., by R. Leviuge, from 1653 to 1663. 1105. Sir Bartholomew Shower's own Note Book of Cases, chiefly wherein he himself was counsel; several amongst them concerning the Customs of London, that have never been printed. On the first leaf is the following interesting note by the former possessor of the volume, Mr. Umfreville : " 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 con- ceive, 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 bookseller, he causa lucri at diflerent times printed his general collection, without due consideration had of these selected Cases, which were the only Cases, I conceive. Sir Bar- tholomew ever intended for the Press. — E. U." Mr. Umfreville then notices the Cases in this MS. which are omitted in the printed copy. At the end of the volume are various Biographical Notices of Sir Bartholomew's, likewise in his own hand, and the names of the Cases reported, but not alphabetically. 1109. An Original Collection of Reports in the Upper Bench, 1654 to 1673. 1069, 1070. The Original of Parts 1 and 2 of Siderfin's Reports in K. B. and C. P., beginning with the year 1657. MEANS OF IMPEOVEMENT. 623 Harleian Collection, British Museum. 4813, A true copy of Mr. Justice Hutton's Reports, taken from a MS. written with his own hand, 15 Jao. I. to 14 Car. II. 1636. Another copy of Judge Hutton's Reports. Hargrave's Collection, British Museum. 42. Reports of Cases in B. R., from Hil. 14 Car. I. to East. 4 Car. II. 47, 10. Two or three Ca.ses Mich. 15 and 16, and Pasch. 20 Car. II. 49, 1. Reports of Cases in C. B., from Trin. 1664 to Hil. 1665, by Edw. Edkins, Esq., with a table of cases. 53, 2. Reports of Cases in the King's Bench, in the 15, 16, and 17 Car. I. ; and Cases in Chancery in Mich. 1651 ; and also of a few Cases in B. R. and C. B., 26 and 27 Car. II. 55 to 58. Sir Orlando Bridgman's Reports and Arguments, from the 12 to 17 Car. II., being the time during which he was Chief Justice of Common Pleas. The Reports of Sir Orlando Bridgman were known to Chief Justice Holt, for in 1 Raymond, 380, he cites from thence the Case of Chamberlayne and Prescott, which is reported in the first volume of this Collection, p. 54. 59. Cases and Determinations in C. B. 1653 and 1654, and some special Cases in the Exch. in the reign of Car. II. — See note to this ISTo. , Car. I. 60. The Reports of Sir Thos. Jones temp. King Car. II., apparently the original of the printed edition. 60. Proceedings in the case of Quo Warranto against the City of Lon- don, temp. Car. II. 62. A small Collection of Exch. Cases in the 16, 17, 20, 21, and 22 Car. II. and Mich. 1671. 63. Cases in the reign of Car. II., with Sir Thos. Powys's Arguments in them. — These cases and arguments seem to be in the Judge's own handwriting whilst he was at the bar. 64. 65. Reports of Cases in B. R. from the 12 to the 26 Car. II., in 2 vols, with Indexes. In the first vol. is the following Manuscript Note, in Mr. Hai-grave's hand: " Some few of the cases in this and the accompanying volume, particularly the first two cases in this volume, are the same with Levinz's Reports ; but this collec- tion contains a great number of cases not in Levinz, and also different Reports of the same cases. How much more copious this collection is than Levinz's for the same time, will appear by this, — the collection here and in the accompanying volume begin exactly at the same time as the first volume of Levinz, namely, Mich. 12 Car. II., and ends, exclusive of a case placed out of order, with the Case of Rea and Barnes, which was in Mich. 26 Car. II., and is in page 117 of the second volume of Levinz. But, as I calculate, for this space of time there is about twice as many cases and twice as much matter here as will be in Levinz's Reports." 624 APPENDIX. 70, 8. Cases, collected by Lord Chief Baron Dodd. 71, 2. Eeports of Cases in B. R., Chan., and Exch. Chamber, and Parliament, and also before the Delegates, beginning Trin. 30 Car. II., and ending Trin. 1713, by Ld. Ch. Baron Dodd. 99. A volume containing Reports of Cases determined in the Court of Chancery, principally in the reign of Car. II. — Some of the cases are of the reign of King Charles I. ; see Case No. 1. — See note to this No. in Car. I. 150. Cases in C. B., 1656 and 1657; also from the 12 to 19 Car. II., by H. Darrell, with Cases and Opinions of Hale, Maynard, and Finch, relating to Wills and Settlements. 161. Eeports of Cases in B. R., beginning Mich. 33 Car. II., and ending Mich. 4 Will, and Mary, with Indexes. 162. Cases in Chancery of 20 Car. 2, and of other years both before and after. Many of them are said to be in print. 174. Cases in Chancery temp. Jac. I. , Car I. , and Car. II. See note to this No. in Jac. I. 204. Cases in Chancery, chiefly between 29 Car. II. and Trin. 1709. 320. Cases in Chancery, Mich. 19 Car. H. 339, 4. Lord North's Argument as Chief Justice of C. B., in the Exch. Chamber, in the great case between Soame and Barnardiston, being the case in action against a sheriff for a double return, with a-memorial prefixed relating to a censure of Lord North, in some of the printed copies of PoUexfen's Report of that case; and written, as Mr. Hargrave apprehended, by Roger North. — And see this table Car. I., No. 59, Hargrave Collection. 839, 1. Some few Cases in B. R., East. 19 Car. H. ; the first and princi- pal one being the case of Sir Hugh Wyndham and others, of a Somersetshire Grand Jury, fined by Lord Chief Justice Keeling, for finding against his direction. 369. Reports of Cases in B. R., 36 Car. II. to 1 Will, and Mary. 370. The Reports of Sir Thos. Street, one of the Judges of the Common Pleas, 36 Car. IL,4 Jac. II. 493, 5. The Earl of Shaftesbury's Case, Trin. 29 Car. n. JAMES II. — February 6, 1685. PRINTED REPORTS. Carthew, K. B., 2 to 4. Cases in Chancery, Part II., 1 to 3. Cases of Settlements, K. B., 2 to 4. Comberbach, K. B., 1 to 4. Freeman, K. B., C. P., Exch., and Chan., 1 to 4. MEANS OF IMPKOVEMENT. 625 Leviuz, K. B. and C. P., 1 and 2. Lutwyche, C. P., 1 to 4. Modern, K. B., C. P., Exch., and Chancery, vol. 3, 1 to i. Parker, Exchequer, 3 and 4. Reports in Chancery, 1 to 3. Shower, K. B., 1 to 4. Skinner, K. B., 1 to 4. Ventris, K. B., C. P., Exch., and Chan., 1 to 4. Vernon, Chancery, 1 to 4. CONTEMPOEAKT MANUSCJRIPTS. Lansdowne Collection, British Museum. 1064. Reports of Cases, K. B., 14 Car. II. to Jac. II. 1105. Sir Bartholomew Shower's Note-book of Cases, chiefly wherein he himself was counsel, &c. — See note to this number, Car. II. Hargrove's Collection, British Museum. 71, 2. Cases in B. R., Chan., Exch., and Delegates, 30 Car. 11. to Trin. 1713, by Ch.' Baron Dodd. 161. Reports of Cases inB. R., beginning Mich. 33 Car. II., and ending Mich. 4 Will, and Mary, with Indexes. 204. Cases in Chancery, chiefly between 29 Car. II. and Trin. 1709. 369. Reports of Cases in B. R., 36 Car. II. to 1 Will, and Mary. 370. Reports of Sir Thomas Street, Judge of the C. B., 36 Car. 11. to 4 Jac. II. WILLIAM III. — Febkuakt 13, 1689. PRINTED EEPORTS. Carthew, K. B., 1 to 12. Cases of Settlement, K. B., 1 to 14. Colles, Parliamentary Cases, 9 to 14. Comberbach, K. B., 1 to 10. Comyns, K. B., C. P., Exch., Chan., and Delegates, 7 to 14. Fortescue, K. B., C. P., Exch., and Chan., 7 to 14. Freeman, K. B., C. P., Exch., and Chan., 1 to 14. Kelying, Sir J., Crown Cases, and in KB., 8 to 13. Levinz, K. B. and C. P., 1 to 8. Lutwyche, C. P., 1 to 14. 40 626 APPENDIX. Modern, K. B., C. P., Exch., and Chan., vol. 3, 1 and 2. ,, ,, „ „ „ vol. 4, 3 to 7. „ ,, „ ,, „ vol. 5, 5 to 11. „ „ vol. 12, 2 to 14. Parker's Exchequer, 4 to 13. Peere Williams, Chan, and K. B., 7 to 14. Precedents in Chancery, 1 to 4. Lord Raymond, K. B. and C. P., 4 to 14. Reports in Chancerj', vol. 2,5. Reports temp. Holt, K. B., C. P., Exch. and Chan., 1 to 14. Salkeld, K. B., C. P., Exch., and Chan., 1 to 14. Select Cases in Chancerj', 5, 9. Shower, K. B., 1 to 6. Skinner, K. B., 1 to 9. Ventris, K. B., C. P., Exch., and Chan., 1 and 2. Vernon, Chancery, 1 to 14. CONTEMPORAKT MASTUSCEIPTS. Lansdoione Collection, British Museum. 568> A Collection of Cases in Chancery and B. R. temp. Will, m., made by some Lawyer, and formerly possessed by Mr. Umfreville. 1114. A small volume of Cases in Chancery before Lords Commissioners Trevor, Rawlinson, and Hutchins, in the reign of William and Maiy. 628 to 631. Cases in various matters of Law and Commerce, with Opin- ions thereon of eminent Counsel, 1700 to 1733, in 4 vols., fairly written. 687. A Collection of Cases in various matters of Law, with the Opinions of eminent Counsel therein, temp. AVill. III., Anne, and Geo. I. At the end are some Precedents of Pleadings in Latin. — Formerly in the possession of J. West, Esq. 583. A Note-book of Decisions in Chancery Cases on Appeals, 1700 to 1730. 1105. Sir Bartholomew Shower's Note-book of Cases, chiefly wherein he himseK was Counsel, &o. See note to this number, Car. II. Harleian Collection, British Museum. 5314, 1. Law Reports and Cases in English and French, temp. Will, and Mary. Hargrove's Collection, British Museum. 66, 2. Reports in C. B. and B. R., 6 Will, and Mary, 1694 to 1696, taken by Sir Robert Raymond, and transcribed from a copy in the possession of H. Jacob, Esq., of the Inner Temple. MEANS OF IMPROVEMENT. 627 66, 3. Reports of Cases in K. B., 9 Anne, and C. B. ,1697, taten by Mr. Serjeant Salkeld. 66, 4. Cases by H. Jacob, Esq., in B. R. andExch. 12 Will, and Mary, to 1705. 66, 6. Cases in B. R., Mich. 8 Will. III., to Trin. 10 Will. III., inclusive. 71, 2. Reports of Cases in B. R., Chancery, and Exchequer Chamber, and Parliament, also before the Delegates, beginning Trin. 30 Car. II., and ending Trin. 1713, by Chief Baron Dodd. 72. Cases in Chancery, 1700 to 1709, Feb. 11, inclusive, by William Melmoth, Esq., with Indexes. — This MS. volume is copied from the first volume of Mr. Melmoth's Reports. Mr. Melmoth was a senior Bencher of Lincoln's Inn, and died April 6, 1743, in the 77th year of his age. He was joint editor with Mr. Peere Wil- liams, of Vernon's Reports. His own Reports came down to 1742. 161. Reports of Cases in K. B., beginning Mich. 83 Car. II., and ending Mich. 4 Will, and Maiy, with Indexes. 182. Cases in B. R., temp. Will, and Mary, Will., and Anne. 205. Chancery Cases, chiefly between 29 Car. II., and Trin. Term, 1709. 369. Reports of Cases in B. R., 36 Car. II., to 1 Will, and Mary. 493, 4. Cases in C. B., 3 May, 1700, Civitas London v. Woods. 84 to 86. Reports of Cases in the House of Lords, Chan., B. R., C. B., and Exch., chiefly from 1727 to 1752, inclusive, but containing one Case before the House of Lords as far back as 1693 ; with Indexes. — The first case is a very curious one, before the House of Lords in 1693, on the Petition of Lady Isabella, Duchess of Grafton; and W. Bridgman, Esq., her trustee, concerning the office of Chief Clerk of the King's Bench; and on this num- ber in Geo. I. ANNE.— May 8,1702. PKINTED EEPOKTS. BrowD, Parliamentary Cases, 1 to 13. Bunbury, Exchequer, 12 to 13. Cases concerning Settlements, K. B., 1 to 13. Cases on Practice, C. P., 5 to 13. CoUes, Parliamentary Cases, 1 to 8. Comyns, K. B,, C. P., Exch., Chan., and Delegates, 1 to 13. Dickens, Chancery, a few Cases. Fortescue, K. B., C. P., Exch., and Chan., 1 to 13. Freeman, K. B., C. P., Exch., and Chan., 1 to 5. 628 APPENDIX. Gilbert's Cases in Law and Equity, 12 and 13. Gilbert's K. B., Chan., and Exch., 4 to 13. Kelyng, Sir J., Crown Cases and in K. B. Lutwyche, C. P., 1 and 2. Modern, K. B., C. P., Exch., and Chan., vol. 6, 2 and 3. „ „ 5) „ ?) vol. 7, 1. „ „ „ ,, „ vol. 10, 8 to 13. „ „ ,, „ „ vol. 11, 4 to 8. Parker, Exchequer, 6 to 12. Peere Williams, Chan, and K. B., 1 to 13. Practical Register, C. P., 3 to 13. Pi-ecedents in Chancery, 1 to 13. Lord Raj'mond, K. B. and C. P., 1 to 13. Reports in Chancery, 4 to 8. Reports temp. Holt, 1 to 9. Salkeld, K. B., C. P., Exch., and Chan., 1 to 10. Sessions Cases, K. B., 9 to 13. Vernon, Chancery, 1 to 13. CONTEMPORAET MANUSCRIPTS. Lansdowne Collection, British Museum. 628 to 631. Cases in various matters of Law and Commerce, with Opinions thereon of eminent Counsel, 1700 to 1733, in 4 vols. 637. A Collection of Cases in various matters of Law, with opinions of eminent Counsel thereon, temp. Will. III., Anne, and Greo. I. At the end are some Pleadings in Latin. — Formerly the property of J. West, Esq. 583. A Note Book of Decisions on Chancery Cases on Appeals, 1700 to 1730. 1107. Reports of Cases, K. B., from 9 Anne to 12, by P. C. Marsham, Esq., afterwards a Master in Chancery; in the Reporter's own hand. Hargrave's Collection, British Museum. 66, 1. Cases in K. B. 1702 to 1704, transcribed from the MS. of Herbert Jacob, Esq., of the Inner Temple, written with his own hand. 66, 8. Cases in B. K., 9 Anne and C. B., 1697, taken by Mr. Serjeant Salkeld. 66, 4. Cases by Herbert Jacob, Esq., in B. R. and Scaccario, 12 WiU. and Mary to 1705. 66, 5. Cases in B. R. , 1702 and 3, inclusive, taken by Mr. Serjeant Rugelly [or, as Mr. Heterick and Mr. Green both, and without consultation, suggest, Pengelly].* 1 In 2 Lord Raymond, 1163 and relatione M'ri Pengelly," and one &om 1219, are two cases, 4 Annas, one " ex the report of Mr. Pengelly. MEANS OF IMPROVEMENT. 629 71. 2. Reports of Cases in B. R., Chancery, Exch. Chamber, and Par- liament, and also before the Delegates, beginning Trin. Term, 30 Car. II., and ending Trin. 1713, by Lord Chief Baron Dodd. 72. Cases in Chancery, 1700 to Feb. 11, 1709, inclusive, by Wm. Melmoth, Esq., with Indexes. — See note to this number in Will. and Mary. 73. Liber Albo; being a Collection of Chancery Cases, in the reigns of Queen Anne and Geo. I. — Lord Chief Baron Gilbert, in his Lex Prsetoria, refers to this book both by the name of Liber Albo, and likewise under the title of 2 MS. Chanceiy Cases. Most of these Reports are printed in Gilbert's Equity Reports, Precedents in Chancery, or Equity Cases Abridged. , 75. Cases in Chancery, B. R., and C. P., in the reigns of Anne and Geo. I. — Most of these Cases are printed in Gilbert's Precedents in Chancery. 76. Cases in Chancery, &c., temp. Anne and Geo. I., mostly printed in Precedents in Chancery. 77. Cases in Chancery during the latter end of Anne's reign, and for the first four or five years of Geo. I. — The Cases are not placed in order of time. 78. 2. Cases in B. R. , 4 Annse Reg. 78, 9. Cases in C. B. and Chancery, from the third to the seventh year of Queen Anne. 80, 81, 82. Cases in Chancery, C. B., and Exch., but chiefly the former, from 1706 to 1724, inclusive, in 2 vols. — A note, in Hargrave's hand, says : ' ' Upon looking into several of these cases I found some not in print, and others to difEer from the printed Reports of the same cases." 182. Cases in B. R., temp. W. and M., King Will., and 2 Anne. 202. Reports of Cases argued and adjudged in the Courts of K. B., C. P., and Chancery ; together with some Cases and Opinions, chiefly between 1705 and 1746. 204. Chancery Cases, chiefly between 29 Car. 11. and Trin. 1709. 306. Reports of Cases in Chancery in the time of Queen Anne, and of two Cases at Common Law. — At the beginning is the following note, in Mr. Hargrave's hand: "Upon examination I find the Chancery Cases here to be in Gilbert's Equity Reports in tot. verb. except in one instance, in which I have made a note to the con- trary.' As to the two Common Law Cases, one is printed in 11 Mod., and the other is reported in the same book, but not exactly in the same words. — F. H." 365 to 367. Reports at Law and Equity, by James Strode, Esq., of Lincoln's Inn, in 3 vols., temp. Anne, Geo. I., and Geo. IL 70, 8. Cases collected by Lord Chief Baron Dodd. 630 APPENDIX. GEORGE I. — AtFGUST 1, 1714. PRINTED EEPOETS. Barnardiston, K. B., 12 and 13. Brown, Parliamentary Cases, 1 to 13. Bunbury, Exchequer, 1 to 13. Cases concerning Settlements, 1 to 13. Cases of Practice, C. P., 1 to 13. Comyns, K. B., C. P., Exch., Chan., and Delegates, 1 to 13. Dickens, Chancerjs 1 to 13. Fortescue, K. B., C. P., Exch., and Chan,, 1 to 13. Gilbert, K. B., Chan., and Exch., 1 to 12. Modern, K. B., C. P., Exch., and Chancery, vols. 8, 9 —8 to 12- „ ,, „ ,, ,, vol. 10— 1 toll. Mosely, Chancery, 12 and 13. Parker, Exchequer, 4 to 13. Peere Williams, Chancery and K. B., 1 to 13. Practical Register, C. P., 1 to 13. Precedents in Chancery, 1 to 8. Lord Raj-mond, K. B. and C. P., 1 and 10 to 13. Select Cases in Chancery, 10 to 13. Sessions Cases, K. B., 1 to 13. Strange, K. B., C. P., Exch., and Chan., 2 to 13. Vernon, Chancer}', 1 to 5. CONTEMPOEAET MAinJSCEIPTS. Lansdowne Collection, British Museum. 628 to 631. Cases in various matters of Law and Commerce, with the Opinions of eminent Counsel thereon, 1700 to 1783, in 4 vols. 637. A Collection of Cases in various matters of Law, with the Opinions of Eminent Counsel thereon, temp. Will., Anne, and Geo. I. At the end are some Pleadings in Latin ; formerly the property of J. West, Esq. 588. A Note Book of Decisions in Chancery Cases on Appeals, 1700 to 1780. 586. Notes of Pleadings and Cases in K. B., 12 Geo. I. 587. „ „ ,, ,, 13 Geo. L 588. ,, ,, ,, ,, 13 Geo. I. and 1 Geo. 11. MEANS OF IMPEOVEMENT. 631 Hargrave's Collection, British Museum. 70, 1. Cases in the Exchequer, A. D. 1721 and 1722, copied from Bun- bury's Reports. 70, 5, 7, and 9. Further Extracts from Bunbury's Reports. 73. Liber Albo ; being a Collection of Cases in Chancery, temp. Anne and Geo. I. — See note to this number in Anne. 75 and 76. Cases in Chancery, B. R., and C. B., in the reigns of Queen Anne and Geo. I. — Most of them printed in Precedents in Chan- cery. 77. Cases in Chanceij during the latter end of Anne's reign, and for the first four or five years of Geo. I. 80, 81, 82. Cases in Chancery, C. B., and Exchequer, but chiefly in the former, from 1706 to 1724. — See note to this number in Queen Anne. 83. Cases in the House of Lords, Chancery, C. B., and B. R., from 1720 to 1730, inclusive. 84 to 86. Reports of Cases in the House of Lords, Chancei-y, B. E., C. B. , and Exchequer, chiefly from 1727 to 1752, inclusive, but containing one Case before the House of Lords, as far back as 1693 ; 3 vols, with Indexes. — See note to these numbers in Anne, and the following: " Amongst other important matter in these volumes there is a full Report of the Arguments of Mr. Henley, afterwards Earl of Northington, for the defendant in error, at the Bar of the House of Lords in the case of Martin, on the demise of Treconnell, against Straohan ; and of the Opinion of the Judges for the defendant in error, as delivered by Willis, Ch. J. There is also a full Report of the famous case of Burgess v. Wheate, in the King's Bench, upon its being sent there by the Lord Chan- cellor." 138. A Collection of Chanoeiy Cases and Opinions, chiefly in the time of King George I. 202. Reports of Cases argued and adjudged in the Courts of K. B., C. P., and Chancery, together with some Cases and Opinions, chiefly between the years 1705 and 1746. 303. Cases in Chancery, temp. Geo. I. 365 to 367. Reports at Law and in Equity, by James Strode, Esq., of Lincoln's Inn, in 3 vols., temp. Anne, Geo. I., and Geo. 11. GEORGE II.— June 11, 1727. PRINTED REPOKTS. Ambler, Chancery and Exch., 11 to 34. Andrews, K. B., 11 and 12. 632 APPENDIX. Atkyns, Chancery, 9 to 27. Barnardiston, K. B., 1 to 7. Barnardiston, Chancery, 13 and li. Barnes, C. P., 5 to 34. Belt's Supplement to Vesey, Sen., Chan., 20 to 28. Blackstone, W., K. B. and C. P., 20 to 24, 30 to 34. Brown's Parliamentary Cases, 1 to 34. Bunbury, Exchequer, 1 to 14. Burrow^ K. B., 30 to 34. Burrow, Settlement Cases, K. B., 5 to 34. Cases of Settlement, K. B., 1 to 5. Cases of Practice, C. P., 1 to 20. Cases temp. Talbot, Chan., K. B., and C. P., 7, 10. Comyns, Exch., Chancery, and Delegates, 1 to 13. Cunningham, K. B., 7 to 10. Dickens, Chancery, 1 to 34. Eden, Chancery, 31 to 33. Fitzgibbon, K.B., C. P., Exch., and Chan., 1 to 5. Fortescue, all the Courts, 1 to 10. Foster, Crown Cases, 16 to 34. Kelynge, W., K. B., C. P., and Chan., 4 to 8. Kenyon, K. B. and C. P., 26 to 30. Leach, Crown Cases, 4 to 34. Mosely, Chancery, 1 to 3. Parker, Exchequer, 16 to 34. Peere Williams, Chancery and K. B., 1 to 8. Practical Register, C. P., 1 to 15. Raymond, Lord, K. B. and C. P., 1 to 6. Reports temp. Hardwicke, K. B., 7, 10. Sayer, K. B., 25 to 29. Select Cases in Chancery, 1 to 6. Sessions Cases, K. B., 1 to 20. Strange, K. B., C. P., Exch., and Chan., 1 to 21. Vesey, Sen., Chancer}', 20 to 28. Willes, C. P., Exch., Chan., and House of Lords, 11 to 32. Wilson, K. B. and C. P., 16 to 34. CONTEMPORAET MANUSCRIPTS. Lansdowne Collection, British Museum. 628 to 631. Cases in various matters of Law and Commerce, with Opin- ions of eminent Counsel thereon, 1700 to 1733, in 4 vols. 583. A Note Book of Decisions in Chancery Cases upon Appeals, 1700 to 1730. 585. 588. 589. 590. 591. 592. 593. MEANS OF IMPROVEMENT. 633 594. Short Notes of Cases in Chancery and K. B., 1731 to 1739. 584. Notes of Pleadings and Cases in B. R., 9 to 12 Geo. II. ,. „ 12 Geo. II. .. „ 13Geo. Land 1 Geo. n. )> ,, 1 Geo. II. 11 ,, 1 and 2 Geo. II. ,. „ 2 and 3 Geo. H. ), ,, 4 Geo. II. )) ,) 3 and 4 Geo. n. Inner Temple Library. Cases determined in Law and Equity, 1750 to 1765, by Thomas Ley, Esq. (bequeathed to the Society) , in 4 vols. Hargrave's Collection, British Museum,. 54. Cases in Law and Equity, A. D. 1731 to 1746, with an Index. — At the beginning of the volume is this note, in Mr. Hargrave's hand, in pencil: " 11th Feb. 1795. — One of the Ballow MSS. now be- longing to Earl Camden, received from Mr. Hardinge this day." 67. Cases in Chancery, Hil. 1785 to 1736-7. 79. Cases, in Chancery whilst Lord King held the Great Seal, Mich. 1726 to Mich. 1730. The MS. note of a former possessor says: " These cases are in print, Mosely's Reps, being the same." 83. Cases in the House of Lords, Chancery, K. B., and C. P., from 1700 to 1730, inclusive. 84 to 86. Reports of Cases in the House of Lords, Chan., K. B., C. P., and Exchequer, chiefly from 1727 to 1752 inclusive, in 3 vols. — , See note to this number in Anne and Geo. I. 152. Cases from 1733 to 1766. — The same as those in Forrester's Reports. 202. Reports of Cases argued and adjudged in the Courts of K. B., C. P. , and Chanceiy, between 1705 and 1746. 328. Cases in the Court of K. B. in the reign of Geo. 11. 334. Cases in Chancery and K. B., 11 Geo. II. — Inside the cover of this volume is the following note: " 11 Feb. 1795. One of the Bal- lowe MSS., now belonging to Earl Camden, received from Mr. Hardinge this day. — F. H." 365 to 367. Reports at Law and in Equity, by James Strode, Esq., of Lincoln's Inn, in 3 vols., temp. Anne, Geo. I. and II. 383 and 412. Vols. 2 and 4 of Cases in Chancery, with Index. — Within the cover of this manuscript is the following note, in Mr. Har- grave's handwriting; " Note that the whole collection of Mr. Paul Jodrell's Equity Notes, of which this volume is the fourth, con- sists of 6 vols, in quarto ; a complete set is in the possession of Mr. Henry Jodrell, who is so obliging as frequently to indulge me with the use of vols. 1, 2, 3, 5, and 6. I have a copy of vol. 2, but it is without an Index of matter." At the end of this vol- ume are a few notes in Mr. Hargrave's handwriting, from the Index of matter to vol. 6. 634 APPENDIX. 435. Cases in B. R., 32 Geo. II., and one Case in C. B., 33 Geo. 11., in the handwriting of Mr. Hargrave. — Wilhin the cover of this MS. is written, " Ex notis Francisci Filmer Armigeri." In closing this statement of the Manuscript Reports, it may not be inappropriate to make some observations on the sources from which it has been derived, and to give, by waj' of illustration, a few extracts from the reports of the commissions appointed by the legislature to inquire into the state of the public records of the country, and from the returns made to the commissioners ^ by the several inns of court, the universities, and other public institu- tions, of the legal manuscripts in their possession. The first report on the public records, made by a select com- mittee of the House of Commons, in the 3ear 1800, contains much valuable matter. That part of it which relates to the Year Books and judicial proceedings is as follows : — " The judicial proceedings of the earliest date are those of the Curia Regis, commencing in the reign of Richard I. ; the Placita Forestse, and the Courts of King's Bench and Common Pleas, be- ginning from the reign of Edward the First." " Some of the most curious and instructive records of the Curia Regis have been already published by Maddox in his Notes to his Historj' of the Exchequer ; others of them are probably contained in the abstracts and transcripts preserved at the Chapter House, and in the libraries of some of the Inns of Court ; and, with regard to the rest, it is very doubtful whether they are sufficiently perfect for publication. . " Of the Placita Forestse, which are dispersed in so many different repositories, it might be useful to print one General Catalogue.'' "The special judgments of the Common Law Courts, in the reign of Edward the First, are highly commended by Lord Hale, who says,^ ' That the reasons of the law, upon which the court 1 The names of the Commissioners vester Douglas, Knt., one of the Corn- were as follows : William Henry Cav- missioners of the Treasury (late Lord endlsh (Duke of Portland), William Glenbervie) ; Sir John Mitford, Knt, Wyndham (Baron Grenville), and the then Attorney-General (late Lord Kight Honorable Henry Dundas, the Redesdale) ; Sir William Grant, Knt., three principal Secretaries of State; then Solicitor-General (late Master of the Riglit Honorable Henry Adding- the Rolls) ; Robert Dundas, Esq., ton, Esq., Speaker of the House of Com- Lord Advocate for Scotland; and mens; William Pitt, Chancellor and Charles Abbot, Esq. (late Lord Ten- under Treasurer of the Exchequer; terden). Sir Richard Pepper Arden, Knt., Master -Hale's History of the Common of the Rolls ; Lord Frederick Camp- Law, cap. vii. bell, Clerk-Register of Scotland; Syl- MEANS OF IMPROVEMENT. 635 proceeded, is many times expressly delivered upon the record itself.' And the value which he set upon them, appears by the large selections and copies from them which he obtained and be- queathed, with his other MSS., to the Society of Lincoln's Inn. " It may be desirable, therefore, that his selections should be printed, and that such other selections should be made as were sug- gested by the Keeper of the Chapter House Records, in 1 732, or that the Abstract now preserved in the Chapter House, and specified by the present officer in his return upon this subject, or the book mentioned in the return from the Society of the Middle Temple, should be printed ; accordingly, as it may appear upon a careful in- spection and comparison of them all, that any of the latter compila- tions can be substituted for Lord Hale's if his cannot be obtained for the public, or perhaps be made supplementary to it, if they should appear to take in a larger compass of time. "As these records would be particularly serviceable in illustrating the Year Books, a subject discussed with great erudition and ability, in a return made from the Society of Lincoln's Inn, your committee strongly recommend that the series of those books, from Edward the First to Henry the Eighth, should be completed, by printing those hitherto unpublished, of which there are several extant in the libraries of Lincoln's Inn, the Inner Temple, and the British Mu- seum ; and also by reprinting the rest from more correct copies, as those which are already in print are known to be, in many instances, . incorrect and erroneous. A General Index to the whole would be a very necessary addition to such a work, which forms so valuable a monument of our practical jurisprudence in its earliest ages." The return made by the Society of Lincoln's Inn, alluded to in the above extract, contains the following section upon the subject of these pages : — " Reports of judicial proceedings, viz. : First, Year Books, some- times called Selationes, Annates, Narrationes, Anni, and Tempora. Of these there are many volumes, a few of them being duplicates. They also are, for the most part, fairly written, and in the hands of the respective periods to which they relate, and which periods are : — Ebigns. Years. Edward 1 17, 18, 19, 30, 31, and 32. II 1 to 20 III 1 to 46. Richard II 2,6,7,8,11,12,18. Henry IV 2,8,11,13. V 1, 5, 9. ;; VI .-. 1,2,8. EdwardIV 10- 636 APPENDIX. "2. Reports not official, in the reigns of Eliz., Jac. I., and Car. I. "1. Year Books. Whatever may have been the nature of the authority under which those books were compiled, and whatever the particular description of the compilers (concerning which there seems to be a considerable diversity of opinion), they are univer- sally considered as containing official and authentic accounts of the arguments and decisions in the most important causes which came before the chief tribunals of this country, from a very early period down to the general introduction of printing. About which time certain eminent judges and lawyers, as Keilwey, Moore, Benloe, Dyer, Plowden, &c., began, without any special appointment or duty, to make similar compilations, with a view of committing them to the press. Such a valuable monument of practical law and juris- prudence as the Year Books probably does not exist in any other country. But "1. In the printed editions of these important annals there are many chasms and interruptions in the series of years. ' ' 2. The printed copies abound with many imperfections of other sorts. The cases, arguments, and judgments are not so fuUy stated in them as they are to be met with in some of the manu- scripts, because those editions were (so it should seem) made from other manuscripts, less complete, the editors not having had the means or industry, at least, of resorting to those which were more full and accurate. "3. They are printed so close, so many of the manuscript abbreviations are retained, and there is so little separation in para- graphs, or distinction between what is said by the counsel and what is said by the judges, that it often requires the experience and sagacity of a legal antiquary, and generally much more time than the practising lawyer can bestow, to read, or rather to decipher, the passages to which there is occasion to refer. " 4. There is no general well-digested index to them. "1. Of the chasms. There are extant, in manuscript, in this and other repositories, Year Books from Edward I. inclusive to the 1st of Henry VIII. ; but of the series of years, in that long space of tiijie, there are wanting in the printed editions, " The whole of the reign of Edward I., except the short memo- randa in Scaccario prefixed to what now forms the first printed volume. "The reign of Edward III., anno 11 to 16, anno 19, 20, and 31 to 37. " The whole of Richard II. " Of Henry V. anno 3, 4, 6. MEANS OF IMPROVEMENT. 637 "Of Henry VII. anno 17, 18, 19.^ " A variety of reasons concur to render it probable that, if not the whole, a considerable part of these deflciencies might be sup- pUed from existing manuscripts." The subject of Lord Hale's will, and the obstruction it might occasion to the suggestions of the commissioners, is hinted at in those suggestions. That part of the will of Lord Hale which relates to his books and manuscripts is as follows : — "As a testimony of my honor and respect to the Society of Lincoln's Inn, where I had the greatest part of my education, I give and bequeath to that honorable Society the several manuscript books contained in a schedule annexed to my will. They are a treasure worth the having and keeping, which I have been near forty years in gathering, with very great industry and expense. My desire is that they be kept safe and all together, in remembrance of me. They were fit to be bound in leather, and chained and kept in archives. I desire that they may not be lent out or dis- posed of. Only, if I happen hereafter to have any of my posterity of that Society, that desires to transcribe any book, and gives very good security to restore it again within a prefixed time, such as the benchers of that Society in council shall approve of; then, and not otherwise, only one book at one time may be lent out to them by the Societj'. They are a treasure not fit for ever}' man's view, nor is every man capable of making use of them. Onty, I would have nothing of these books printed, but entirely preserved together for the use of the industrious learned members of that worthy Society." After stating instances in which the restrictions contained in the will of Lord Hale had been disregarded, the learned Eeporter^ proceeds : — " I have judged it right to set forth, specially, all that could be stated with authenticity, relative to this departure, under the direc- tion and authoritj' of the House of Lords, from the words of Lord Hale's will, as, when we consider the eminent persons then living who were benchers, or had been members of the Society, it will not be doubted but that they must have given due consideration to the subject, and must have thought that they were either bound to a compliance with the orders of that House and its sub-committee, or, at least, fully justified in their compliance. Their conduct on that occasion may therefore, perhaps, be considered as having formed a rule and precedent for a like compliance with any similar 1 This statement omits the 5, 6, 13, ^ Sylvester Douglas, Esq., after- 15, 16, 17, Henry VI., which are like- wards Lord, Glenbervie. wise wanting in the printed editions. 638 APPENDIX. order of either house of Parliament. Indeed, it can hardly be sup- posed that Sir Matthew Hale himself would have wished to oppose his own desire of withholding his manuscripts from the public to Buch high authorit3' ; although a sense of the value of his gift to the Societj', and an anxiety for its preservation, may seem to have led him, in making his will, into a way of thinking on the subject in- consistent with his general love of his profession, and that zeal for extending to the country at large the benefit of his great learning, which he so fully manifested by the valuable works he himself either published or prepared for the press." The return of the benchers of the Inner Temple contains an im- portant MS. of a Year Book, temp. Edward III., extending from the 10th to the 16th of his reign. See the table of that reign and the note appended. The return of records deposited in the Chapter House, made by Sir George Eose, lays open a valuable source for the correction of a portion of the Year Books bj' official MSS. The following ex- tract will be read with interest : — "It will probably be difficult to decide now, when the proceed- ings of the Curia Eegis finished, and the Courts of King's Bench and Common Pleas first sat as distinct courts. In the old calen- dars, the Rolls are called of the Curiae Regis to the end of Henry III., and from 1 Edw. I. of the King's Bench and Common Pleas ; but nothing I have seen appears to justify that. On the contrary, I find, in King John's reign, mixed titles in the Rolls. A few Rolls, of the reign of Henry III. , are said to be in the Tower. " Not being able to decide when the court was di\nded, I state, as has been formerly done, that the Rolls of the King's Bench in this Treasury are from 1 Edw. I. to the end of Henry V. ; and the Rolls of the Common Pleas, from the beginning of Edw. I. to the end of Henry VII. ,^ except those of a few terms in the latter reign, which are in the Treasury of the Common Pleas." The returns made by the British Museum under this commission are very incomplete, since the catalogues which now give access to the invaluable and very extensive stores of MSS. in that institution were not then in existence, and may be said to have emanated from that commission. The catalogue of the Harleian Collection is a great work, aud its indexes have, in the course of the present in- quiry, been found strictly correct and complete. The catalogue of 1 Sir Matthew Hale says, that in distinct courts, but states mixed pro- the time of King Jolm the Courts of ceedings on the Eolls. Hist. Com. King's Bench and Common Pleas were Law, 182, 191, ed. 1820. MEANS OP IMPfiOVEMENT. 639 the Lansdowne Collection describes the several contents with suffl- cient accuracy ; but its index is so grossly defective, that the com- piler found great difficulty in giving an accurate statement of the objects of legal research with which that collection is enriched. No pains were spared, arid it is hoped that little, if anything, worth noticing has escaped his observation. Since the date of the com- mission above alluded to, the valuable and extensive Manuscript Collection of Mr. Hargrave has been added to the Museum. The MSS. in the table under the following title, " Bishop Moris's MSS., Public Library, Cambridge," are not mentioned in the rctui-n made by that University, which leads to a doubt whether the de- scription of this collection, given in the table, is a correct one. The catalogue of the collection, of which these MSS. is a portion, will be found in a volume in the British Museum, entitled " Catalogi Librorum Manuscriptorum Angliae et Hibernise," and against the title of it is this note, in writing : " Now, in the Public Library of Cambridge." Not having had an opportunity of ascertaining this fact, and not doubting but that these MSS. are in existence, if not at Cambridge, elsewhere, we have included them (imperfectly de- scribed as thej- are, without any guide as to what portion of the several reigns they include) in our table, with this brief explanation, and we shall take an earlj' opportunit}' of looking into and describ- ing them accurately. Independent of the value of these MSS. with a view to the collations of the printed Year Books, whicli, from what we have seen, is likely to prove of the first importance in authenticating them, there are the following in this collection, which are doubly important as not being in print, and no perfect copies elsewhere apparently to be found. — No. 402. A Year Book in the reign of Edw. I. may be more at large than the short notes of that reign contained in the volume in the Middle Temple Librarj'^, and may complete the reign of Edw. I. of Lord Hale's MS., the printing of which has been recommended by the Record Commis- sion ; and this is the more probable from the following statement, extracted from the Lincoln's Inn returns before mentioned: "As to the reign of Edw. I., it is clear, from Fitzherbert's Abridgment, that there were extant, in his time. Year Books of that period ; and Sir M. Hale, in his Historj' of the Common Law, mentions ' that some of those, though broken, yet the best of their kind, were in Lincoln's Inn Library.'" (Cap. 8, p. 186.) Likewise those in the reign of Richard II., Henry V., and Henry VI. There is likewise another Year Book, not included in the table for want of date ; it is thus described in the catalogue, — " No. 399. An ancient Year Book, bound in vellum, fol." 640 APPENDIX. It is presumed that, from among the various MSS. enumerated, the reign of Edw. I. may be added, for the first time, to the printed Year Books ; the various years now omitted in the reigns of Edw. III., Richard II., Henry V., VI., VII., and VIII., supplied; and that the Hargrave and Harleian collections wUl furnish an additional volume, including the reigns of Edw. VI., and Philip and Mary. The detached collections of Reports, by eminent practitioners, after the Year Books ceased to be continued, are very numerous, and most of them of the first authority and consequence ; others, of less authority, derive their value from their forming so many links in the series, which would otherwise be incomplete. The notes appended to the various MSS. in the table, which are for the most part to be found in the handwriting of their former possessors, or have been since written upon examination of their contents, will show the improvements which many published Reports are capable of receiving from these invaluable sources ; and there are doubtless many more MSS. appearing in the table without note or observa- tion, which wiU be found, upon examination, of no less value. "In addition to the MS. Reports mentioned in the preceding list, and in the note on p. 107, supra, I may make mention," says Mr. Heterick, " of the following, viz. : — " Blencoe's MS. Reports, vol. i. p. 214, cited by Bayley in his edition of Lord Raymond, vol. i. p. 719. " Burnet s MS., in Lincoln's Inn Library, cited 1 Maddock's Chancery Practice, 324, note I. " Cox's MS. notes in Lincoln's Inn Library, cited 2 Id. 23, note g. " Hyre's, Lord Chief Justice, MSS., referred to 2 Atkyns, 665. "Jacob's {Herbert) MS. Reports, referred to 1 Smith's Leading Cases, 82. " Nottingham's, Lord, MSS., spoken of in Swanston's Chancery Reports, vol. iii. p. 87, as a ' most valuable collection.' " Perrot's, Baron, MS. cases spoken of in H. Blackstone, 397, note." AN ALPHABETICAL LIST THE EEPOETEES. AN ALPHABETICAL LIST THE EEPOETERS. A, Page' ^Abbott 566 K^ Abbott's Aamiralty .... 567 y, Abbott's Appeal Decisions . . 581 ^^Abbott'sNe-w Cases .... 581 j^Abbott's Practice Reports . . 581 ^Abbott's Practice Reports (New (^ Series) 581 Acta Cancellarise 467 Acton 526 .^Addams 535 Addison 585 —^dolpbus and Ellis 530 — — Adolphus and BUis (New Series), or, Queen's Bench Reports . 530 Aiken 589 Alabama 570 Alabama, New Series (Select Cases) 570 Aloock 549 Alcock and Napier 548 •^-Aleyn 289 Allen (N. B.) 558 *^llen (Mass.) 576 AUstree 262 ^^Ambler 513 American Law Times Reports . 570 .^-Anderson 136 *«rAndrews 439 Anglo-Norman Law Cases . . 59 Annaly 436 "" Anstruther 534 Pacm Antbon's Nisi Prius Cases . . 579*-" Arkansas 570 Arkley . 554 Armstrong, McCartney, and Ogle 548 Arnold 533 Arnold and Hodges . . . . 531 Ashhurst 329, 330 Ashmead 586»" AspinaU's Maritime Law Cases . 536 Atkyns . . . .^ . . ._^ 510— B. Bail Court Cases 532 Bailey 587 Bailey, Chancery . . . . 588 Baldwin 564 — Ball and Beatty 547 Bankruptcy and Insolvency Re- ports 537 Banning and Arden . . . . 569 "- Barbour, Chancery 580 — Barbour's Supreme Court Re-- ports .... ... 580— Bamardiston, K. B. . . 423 Bamardiston, Chancery . . . 514 Barnes 432'^- Barnewall and Adolphus . . . 530~" Barnewall and Alderson . . . 530~~ Barnewall and Cresswell . . . 530 ~" Barradall, MS 590 644 AN ALPHABETICAL LIST OF Barron and Arnold .... 545 Barron and Austin 545 ^atty 548 Baxter 588 Bay 587 ^easley 579 Beatty 547 SBeavan 528 Beavan and Walford .... 544 SBee 568 -Belie. C 538 Bell (Scotch) 552, 553 Bell's Dictionary of Decisions . 554 Bellewe, temp. Ric. II. . . . Ill .-Benedict 567 Benloe and Dallison . . . 114 Berton 558 - Best and Smith 530 Bibb 574 Bigelow, Anglo-Norman Law Cases 59, 60 ""Bingham 533 -Bitigham (New Cases) ... 533 — Binney 585 ..'Bissell 565 Bittleston and Wise . . .' . 543 ^lack 561 Blackerby 347 Blackford 573 Blackham, Dundas, and Osborne 548 if Advocates . , . . 553 Fairfield . . . 575 Falconer 553 Falconer and Fitzherbert . . . 545 -•Federal Reporter 566 -^ergusson 555 Fisher's British License Cases . 567 - Fisher's Patent Cases .... 569 -Fisher's Patent Reports . . . 569 •S'itzgibbon 437 Flanagan and Kelly .... 548 ^FUppin ..... .565 Florida 572 Foley 210 Ponblanque 537 Forbes 553 -JPorrest . ...... 534 Fortescue 408 -Foster (K. B.) 440 Foster (N. H.) 578 Foster and FinJason .... 543 Fountainhall 553 s-Fox and Smith 548 Fraser 544 ""Freeman, Chancery .... 486 Freeman, K. B 390 Freeman (Mississippi) . . . 577 G. Gale 534 -jGale and Davison .... 531 —Gallison 562 Gardinier's N. Y. Reporter . . 583 Georgia Decisions 572 Georgia Reports 572 Giffard 539 .Jjilbert, Cases ,Law and Equity 417, ^— C;.~ H. Haggard, Admiralty .... 536 Haggard, Ecclesiastical V^^in^, 535 •»< Hailes 553 Hall 582— HaUandTwells 527 Halsted 579— Halsted, Chancery . . 578—- Hand 581 Handy. . 584" Haniiay 558 Harcarse 553 Hardin 574 Hardres 291— Hare 529>* Harper, Chancery . . . ; . 587 Harper, Law 587 Hamngton 572 Harrington, Chancery . . . . 576^ Harris and Gill 575 Harris and Johnson .... 575 Harris and M'Henry . . . . 575 Harrison . 678^ 648 AN ALPHABETICAL LIST OP Harrison and Hodgins . . . 557 ■fllarrison and Rutherfurd . . . 533 - Harrison and Wollaston . . 531, 532 Hawks 584 ■eHayes 548 Hayes and Jones 548 -Haywood (N. C.) • • • • 583, 584 Haywood (Tenn.) 588 Head 588 Heiskell 588 Hemming and Miller .... 539 ■'Hempstead 565, 568 Hening and Munford .... 590 vHetley 370 -«ill (N. Y.) 580 Hill (S. 0.) Chancery .... 588 Hill (S. C.) Law 587 .^ilton 583 History of Procedure in England from the Norman Conquest . 60 -Hobart 220 Hodges 533 •^Hoffman, Chancery .... 581 "•Hoffman's Land Cases . . . 569 Hoffman's Reports 569 Hogan 548 Holmes 563 Holt 543 Holt, Cases temp 529 —Hopkins 580 Hopkinson 567 Hopwood and Coltman . . . 545 Hopwood and Philbriok . . . 545 Horn and Hurlstone .... 534 Jlorwood, Year Books of the reign of Edward the First . 73 —House of Lords Cases (Clark) . 525 Houston 572 Houston's Criminal Cases . 572 Howard (Irish) 551 Howard (Miss.) 577 —Howard (U. S.) 561 ^^oward's Appeal Cases . . . 581 ^Howell's State Trials .... 67 — Hudsoh and Brooke .... 548 -Hughes (C. C. U. S.) ... 565 Hughes (Ky.) 574 Hume 553 Humphreys 588 Hun 580^ Hurlstone and Coltman . . . 534 Hurlstone and Norman . . . 634 Hurlstone and Walmesley . . 535— Hutton 246 I. Idaho 572 lUinois 573 Indiana 573 Internal Revenue Recorder . . 569 Iowa 573- Iredell ... V .... 584 Iredell, Equity 584 Irish Chancery and Common Law -. . 549 Irish Jurist 550 Irish Law and Equity .... 549 Irish Law Reports 549 Irish Law Times 550 Irvine 554 J. Jacob 537*— Jacob and Walker 537*- James 568 Jebb 549 Jebb and Bourke 548 Jebb and Symes 548 Jefferson 590 Jenkins 69 — Johnson (English Chancery) . 539 Johnson and Hemming . . . 529 Johnson's Cases 579'^~ Johnson, Chancery ..... 580— Jones (Ir. Exch.) 548 Jones (N. C.) 584 Jones (N. C.) Equity ... 584 Jones, Wm. or 1st Jones. . . 355 — Jones, Thomas, or 3d Jones . . 343 •• Jones and Carey 548 Jones and La Touche .... 547 Jurist, The 545 - Jurist, The (New Series) . . 545 ^ THE EEPOETEES. 649 E. Kames (B«markable) . . . . 553 Karnes (Select) 553 Kansas , 573 •Kay 529 Kay and Johnson 529 Keane and Grant 545 "^Keble 315 -Keen 528 -Keilwey 119 - Kelyng, J. or 1st Kelyng . . 326 Kelynge, W. or 2d Kelynge 431, 506 Kentucky Decisions . . . 574 Kenyon 445, 516 -^Keman 581 Kerr 558 -4Keyes . 581 KUkerran 553 -Kirby 571 Knapp 526 Knapp and Ombler 545 L. Labatt 571 >ialor 580 •Lane 237 •Ijansing 580 Lansing, Chancery 580 -iatch 262 La Themis 558 Law and Equity Reporter • . . 670 Law Cases, Wm. I. to Rich. I. 59, 60 Law Journal, The .... 545 Law Journal, The (New Series) 545 Law Recorder .550 Law Reports (English), 1865- 1875 538 Law Reports, New Issue com- mencing January 1, 1876 . . 540 Law Reports, New Issue com- mencing January 1, 1881 , . 540 Law Reports (Indian Appeals) 541 Law Reports (Ireland) . . 549 Law Tim,es„The 546 LawTimesReporfs(NewSeries) 546 Lea 588 Leach 430— Lee 521 Legal Chronicle Reports . . . 586 Legal Gazette Reports . . . 586 Legal Observer 545 Leigh 590 Leigh and Cave 538 Leonard 142~" Levinz 304'— Lewin 587 Ley 24]r«« Lilly 423 Littell's Reports 574 Littell's Select Decisions . . . 574 Littleton 265 Livingston's Judicial Opinions . 583 Lloyd and Goold, temp. Plunkett 547 Lloyd and Goold, temp. Sugden 547 Lloyd and Welsby 544 Lockwood's ReTersed Cases . 580 Lofft 452^ Longfield and Townsend . . . 548"" Louisiana . 575 Louisiana Annual . , . . . 575 Louisiana (New Edition) . . 675 Lower Canada . / 557 Lower Canada Jilrist . . . . 557 Lower Canada Law Journal . . 557 Lower Canada Legal News . . 557 Lowell 662, 566 Lowndes and Maxwell . . . 532 Lowndes, Maxwell, and Pollock 532 Luders 644 Lushington 636 Lutwyche 395 v Lutwyche, Registration Appeal Cases ...*.,.... 545-" M. MacAllister 566 »>. MacArthur 569, 572 McCahon 569 MoCarter 679-— McCrary 565~- M'Cord, Chancery 587 M'Cord, Law 587 Macfarlane 555 McGloin 675 650 ■C. AN ALPHABETICAL LIST OF JKcLexj^ 565 Maclean and Robinson . 525, 553 — M'Cleknd 534 — M'Cleland and Yoimge , ... 534 Maequeeu 552 McMuUan 587 MoMullan, Chancery Cases . . 588 ~-Macnaghten and Gordon . . . 527 Macrae and Hertslet .... 537 Macrory . . . . . ,. ^.^ . 644 •-Maddock .V ['-iMi4v'-.V'^;s//' 1.<:'528 Maine [. . . 575 —Manning and Granger . . . 533 Manning and Ryland, King's Bench 531 Manning and Ryland, Magis- trates' Cases 543 -March 135 March (New Cases) .... 274 Maritime Law Cases .... 536 Marriott 536 -^Marshall 533 Marshall, A. K 574 Marshall, J. J 574 .-Marshall's Decisions . .565 Martin (La.) 575 ^Martin (La.) (New Series) . . 575 Martin (New Edition) ... 575 Martin (N. C.) 568, 584 Martin's Decisions . . . 568, 583 Martin's Reports, Condensed . 575 Martin and Yerger 588 Maryland 575 Maryland Chancery .... 576 -^dason 562 ■—Massachusetts . .... 576 — Maule and Selwyu 530 ■^Meeson and Welsby . . . 534 Meigs 588 —Merivale 526 -Metcalf 576 Metcalfe 575 —Michigan 576 Michigan Nisi Prius Cases . . 576 -Miles 586 MiU 587 Miller, U. S. S. C. Decisions . 661 ''Miller's Decisions . . .565 Milward 549 Minnesota 576 Minor 570 Mississippi 577 Missouri 677 Missouri Appeal 577 Modern . . 34?- Molloy 547 Monroe (T. B.) 574 Monroe (Ben.) 675 Montana 677 Montagu 536 Montagu and Ayrton .... 536 Montagu and Bligh . . . . 636 Montagu and Chitty ... 537 Montagu and Macarthur . . . 536 Montagu, Deacon, and De Grex . 537 Moody 537 Moody and Malkin .... 543-— Moody and Robinson .... 543 Moore, A 582 Moore, East India Appeals . 526 Moore, J. B 633- Moore, Sir Erancis .... 122 ~ Moore, Privy Council .... 626 Moore, Privy Council (New Series) 526 Moore and Payne .... 533—. Moore and Scott 538-« Morison's Dictionary of Deci- sions . 554 Morris (Iowa) 573— Morris's State Cases . . . 677 Morrison's Transcript .... 561 Mosely 504 - Munford 590 Murphey 584 Murphy and Hurlstone . . . 534 Murray 555 Mylne and Craig 527»- Mylne and Keen 52?-- Myrick 571 National Bankruptcy Register . 569 Nebraska 577 Nelson 480 Nevada 577 THE EEPOKTEES. 651 Nevile and Manmng, King's "^ Bench 531 Nevile and Manning, Magistrates' Cases 543 JSTevile and Perry, King's Bench 531 "•Nevile and Perry, Magistrates' Cases 543 NeviEe and Macnamara . . . 544 New Benloe 135 dewberry 568 New Hampshire 578 New Mexico 577 New Practice Gases (Welford, Bittleston, Pamell, &c.) 543, 545 New Keports 546 New Reports (Bosanquet and Puller) 532 New Sessions Cases . . . . 543 —New York Court of Appeals . 581 New York Judicial Repository . 581 —Hew York Legal Observer . . 581 «Jfew York Monthly Bulletin . 583 _^ew York Superior Court Re- ports 582 -Jfew York Supreme Court Re- ports 580 New York Weekly Digest . . 582 •-Nichol, Hare, Carrow, Oliver, Beavan, and Lefroy . . . 544 Nolan 543 North Carolina 584 North Carolina Term .... 582 North Western Reporter (111.) . 573 North Western Reporter (Ind.) 573 Notes of Cases ^ 536 » Nott and Hopkin"s~~;~ . . . . 569 —Nott and Huntington .... 569 Nott and M'Cord 587 -Nova Scotia 558 ■^oy 154 o. -Ohio Reports 584 -Ohio State Reports .... 584 -Olcott 567 Oldwright 558 O'Malley and Hardoastle ... 545 Oregon 585 Overton 588'~ Owen 153*' P. Paige 58CK« Paine 562- Palmer 254^ Parker 442, 534 - Parker's Criminal Reports . . 583-" Parsons 586 Patent Office Decisions . . . 569 Patent Office Gazette .... 569 Paterson ... .... 552 Patton, Jr. and Heath ... 590 Peake 541 Peake's Additional Cases . . . 541 Pearson 586 Peck(Tenn.) 588 Peckwell 5441— Peere Williams 498*" Pennington 578^ Pennsylvania State 585— Penrose and Watts .... 585 Perry and Davison .... 531*"> Perry and Knapp 544— Peters, Admiralty 567< Peters, C. C. II. S 564— Peters, S. C. U. S 561— Peters's Condensed Reports . 561 Petit or Little Brooke ... 132 Philadelphia Reports . . . . 586 Philipps 544 Philliraore 535— Phillips (Eng. Chancery) . . 527— Phillips (N. C.) 584 Phillips (N. C.) Equity ... 584 Pickering 576^ Pike 558 Pinney 591 •« Pittsburgh 586 Placita Anglo-Nonnaunica . . -59— Plowden 143- Pollexfen 346— Popham 206— Porter 570 Power, Rodwell, and Dew . . 545 Practical Register in Chancery . 492 652 AN ALPHABETICAL LIST OF Practical Eegister of the Com- mon Pleas 415 Precedents in Chancery . . . 497 ■^Price 534 Price's Notes of Practice Cases 535 Pugsley 558 Pugsley and Burbidge . . . 558 Q. Quebec Law Reports .... 558 ■" Queen's Bench 556 —Quincy 576 K. Randolph 590 -Rawle 585 Raymond's Digested Chancery Cases 576 — Raymond, Lord 401 •-Raymond, Sir Thomas . . . 304 —Redfield 583 Reports, The (Coke) . 165, 166 note Reports in Chancery .... 477 Reports temp. Pinch .... 488 Revue Critique 558 RcTue de Legislation . . . . 558 Revue Legale 558 Rhode Island 586 Rice, Chancery 587 Rice, Law 587 Richardson 587 Richardson, Chancery . . . 588 Ridgway, Appeals and Writs of Error 547 Ridgway's Hardwicke . 434, 514 •"^lidgway, Lapp, and Sohoales . 548 Riley, Law and Equity . 587, 588 .^Robb's Patent Cases .... 569 Robertson's Appeal Cases . . 417 ..--Robertson (Eocl.) 535 Robertson (Scotch) .... 552 .^Robertson (N. Y.) 582 Robinson, Admiralty .... 536 Robinson (Scotch) .... 553 ==>B,obinson (Sir C.) 536 Robinson (La.) 575 Robinson (Va.) 590 Robinson (Dr. W.) .... 536 RoUe 249 Romilly 528- Root 571- Rose 536 Rotuli CurisB Regis .... 60 Rowe 646 Russell 52>>. Russell and Cbesley . . . . 558 Russell and Chesley, Equity . 558 Russell and Geldert .... 558 Russell and Mylne 527—- Russell and Ryan 535*^ Ryan and Moody 542 - S. Salkeld 399- Sandford, Chancery 581-- Sandford, Superior Court Reports 583-. Saunders 338 • Saunders and Cole 532 Sausse and ScuEy 548 Savile 197- Sawyer 566,569- Saiton 579" Sayer 445 Scammon 573 Schoales and Lefroy . . . . 547 •» Scott 533 Scott, New Reports .... 533' Scottish Jurist, The ... . 554 Scottish Law Reporter . . . 555 Searle and Smith 535 Select Cases in Chancery . . . 503 - Seigniorial Reports (English) . 558 Seigniorial Reports (French) . 558 ■ Selden 68?- Selden's Notes ■SSL- Sergeant and Rawle . . . . 585 Sessions Cases 417 Shaw 552, 554, 555 Shaw and Dunlop 554 Shaw and Maclean .... 553 Shower 392— Shower, House of Lords . . . 400 Siokels 581- Siderfin 395- Simons 528- THE EEPOETEES. 653 — fiimons and Stuart 528 ^^imonSj New Series .... 528 ""Skillman's Police Reports . . 583 -"Skinner Sdi Smale and Giffard 529 Smedes and Marshall . . . . 577 Smedes and Maisball, Chancery 577 »^mith, E. Delafield .... 582 Smith {Ind.) 573 -Smith, J. P 531 Smith (N. H.) 578 -r«mith (N. Y.) 581 Smith's Condensed Alabama Re- ports 570 —Smith and Batty 64.8 Smythe 5i8 Sneed 588 Solicitor's Journal, The . . . 546 .-Southard 578 South Carolina 587 Spear, Chancery 588 Spear, Law 587 Special Law Cases 282 Spencer 578 .. Spinks 536 — Sprague 566 Stair 553 -^tar Chamber Cases .... 274 -^tarkie 5'4.2 -*tate Trials 64 --Stewart 570 -Stewart (N. J.) Chancery . . 579 Stewart and Porter .... 570 Stewart's Vice-Admiralty . . . 558 Stiles 573 ■.Stockton, Chancery .... 579 -Story 562 —fitrange 420 Strobhart 587 Strobhart, Equity 588 Stuart, Lower Canada Reports . 557 Stuart, Milne, and Peddie . . 554 Stuart's Vice- Admiralty . . . 558 ~1Style 287 Sloe's Practical Register. . . 288 >*umner 562 Sutton's Reporter 586 Swabey 536 Swabey and Tristram .... 535 Swan . . Swanston . Sweeney . Swinton . Syme . . T. Tamlyn Taney Tappan Taunton Taylor (N. C.) Taylor (U. C.) Temple and Mew Tennessee Term Reports (Durnford and East) Texas Texas Court of Appeals , . . Thatcher Thompson Tiffany Tothill Transcript Appeals Treadway Tucker Turner and Russell .... Tyler Tyrwhitt Tyrwhitt and Granger . . . United States Supreme Court Reports Upper Canada Appeal .... Upper Canada Chamber . . . Upper Canada Common Pleas . Upper Canada Error and Appeal Upper Canada Law Journal . . Upper Canada Law Journal, New Series Upper Canada Law Reporter . Upper Canada Local Courts Gazette Upper Canada Practice . . . Utah 688 526- 582- 654 554 528»* 565^ 584 533- 684 656 538 589 529^ 589 589 576 558 581 474 581-- 587 582^ 527S»^ 589~. 534- 534— 561 556 557 557 556 557 557 557 667 557 589 654 AN AliPHABETICAL LIST OF THE EEPOETEES. Van Ness's Prize Cases Vaughan Vaux Ventris Vermont «^ernon —Vernon and Soriyen . --Vesey, Jun — Vesey, Sen. . ,-,^- <-. — Vesey and Beames Virginia Cases . . . _3rroom w. *^alker. Chancery Walker, Law •, Wallace . .' -Wallace (J. B.) Wallace, Jun Wallis, by Lyne Ware -Washiogton (C. C. U. S.) . . "Washiagton (Va.) Washington Territory .... -Watts •-Watts and Sergeant .... Webster Weekly Notes Weekly Notes of Cases . . . Weekly Reporter, The . . . ^^^elsby, Hurlstone, and Gordon Welsh -Wendell West 509, West Virginia -Wharton -Wheaton -^Theeler Whitman's Patent -Wightvrick fWiKes 567 334 586 345 589 493 548 526 515 526 590 578 576 577 561 563 564 547 566 564 590 590 585 585 644 546 586 546 534 549 580 525 591 585 561 583 569 534 438 Williams (Sir E. V.) Notes to Saunders 338 Wilmore, Wollaston, and Davi- son 531, 532 Wilmore, Wollaston, and Hodges 531, 532- ■^ilmot 446 \1''ilson 442 •« Wilson, Chancery 527 Wilson, Exchequer .... 535 Wilson (Ind.) 573 Wilson and Shaw 552 Winch 261 Winston 584 Winston, Equity 584 . Wisconsin 591 — Withrow . , 573 Wolferstan and Bristowe . . . 545 Wolferstan and Dew .... 545 Wollaston 533 Woodbury and Minot .... 562 Woods 565<, Wright 584 Wyoming 591 Wythe 590 I rr(u' Yates 579 — Year Books 73 Year Books of the reign of Ed- ward the Eirst (Horwood) . 73 Yeates 585^ Yelverton 211—' Yerger 588 Younge 535r — . Younge and CoUyer, Chancery . 529*~- Younge and CoUyer, Exchequer 535 .^ Younge and Jervis 534. , Zabriskie 57S«— Date Due JV»- 9 "'^ LibrauY Bureau C«t No. 1137