LAW REPORTING.
EVERY profession has its myths—beautiful and venerable fictions, which enable it to attain useful practical results without being ostentatiously illogical. The English legal mind especially has been prolific of these spiritual crea- tions, of which the most magnificent is the common law. Those two words have been to the English lawyer just what "the voice of the universal Church" is to the theologian. Whenever two men quarrel over a complication of affairs which has never happened before, and for which there is therefore no law,—a thing which happens much more often than people generally suppose,—the judges make a law for it, and loudly assert that they are doing nothing of the kind. They are simply declaring the common law, which is the perfection of human reason, and contains a rule applicable to every state of circumstances which ever did or ever will exist among mankind. Persons of a reverent turn of mind would be, and for many centuries people were, content to leave this awful abstraction to be gradually revealed. Every fresh decision dispelled something of the cloud which veiled her awful form, and if sometimes the judges were dim-sighted and could not accurately discern her features through the mist—if, in plain words, they declared what was not law, or as scoffers would have it, made bad law, time was sure to remedy the error. This, however, is an age which respects nothing, and there are people whose impatient curiosity demands that all the clouds round the common law should be forthwith puffed away and every atom of her nakedness revealed. They clamour for a code, and it is probable that if they had been ancient Romans they would have clamoured for the pub- lication of the Sibylline books. While, however, the religious
mind shudders at the callous profanity of the thorough-going codifiers, it willingly admits that the principle of reverence may be carried too far. There are limbs and features of the common law which ought to be revealed and accurately set forth, as, for instance, the criminal law and the rules of legal procedure. But above all, it seems reasonable that when the judges have declared a bit of the ineffable "perfection of human reason" it should be written down at once and pre- served. Reverence may degenerate into carelessness. For- tunately, Themis has many worshippers, and they have found their account in sedulously noting down every feature of her countenance, as from time to time it is revealed. But if it had not been for these zealots, or as they are called law reporters, the revelation of the common law would have been like a panorama, which vanishes from your gaze almost as soon as you have seen it. Probably the cause of this carelessness on the part of the Government is to be found, like so many other of our shortcomings, in our excessive love of being practical. Law courts are places for the transaction of business, and when justice has been done between A and B the business was over. The notion of at the same time developing a system of jurisprudence is an idea of lawyers— a theory, and so it happens that while formal proceedings in a cause and the decision or decree of the Court have from time immemorial been recorded and preserved with scrupulous care, the judgment, or to speak accurately the reasons for the judg- ment, have never been authoritatively recorded at all. In this we are behind the best part of Europe. In France, Norway, Sweden, Denmark and Italy, the judges are required to reduce their judgment to writing and to state the reasons for their decision, and the whole document forms a portion of the record and is accessible to the public. We cannot doubt that at all events thus far law reporting is properly a function of the Government.
Every system, however, has its advantages, and we do not desire to see the judges of our Courts bound to write their judgments and the judgments a part of the formal record. Such a composition would inevitably take a technical shape. A French judgment is like an English conveyance. It begins with a tedious string of recitals, and is about the most unin- viting document which human pedantry ever composed. An English judgment on an important point of law is a finished essay, always logical and luminous, and very often a model of good English. The beauty of Lord Stowell's decisions is proverbial, the judgment of Lord Mansfield on the reversal of Wilkes's outlawry is one of the finest compositions in the English language. Again, to compel the judges to write their judgments would at least in the Courts of common law cause very great delay. The system of pleading which eliminates the questions of fact for the decision of a jury, and puts the questions of law to the Court nakedly, makes their work often very easy, and the point in dispute is argued and disposed of in a few minutes. Even in equity Vice-Chancel- lor Wood—not the least eminent of the Chancery lawyers— pronounces his decisions ore tenus, and is understood to justify himself on the ground that writing is injurious to his health, and that suitors would lose more by the delay which the writing would cause than the public could gain by the in- creased clearness of the composition. All that is wanted is that every Court should have an authorized reporter, and that, when the judgment is oral, the judge should be bound to do as Vice-Chancellor Wood does,—revise the proof sheets of his judgments before they are printed.
This requisition, however, obviously implies that the records of the Courts should be printed and published, and this has almost always, abroad as well as at home, been left to private enterprise. Abroad probably this has scarcely done all it might do ; at home it has done too much. Without going into the antiquities of the subject, we may say that the modern practice of law reporting has arisen in this way :—The judges of the various Courts have encouraged, or perhaps nominated, some able barrister to report the proceedings of their Courts, and have been in the habit of sending him the draught of any judgment which was reduced to writing. From the publica- tion of the reports he derived a handsome addition to his income, but not enough to induce him to give up practice. As his practice grew, his reports fell into arrear. Of course they were costly, for even then an able man was barely com- pensated for his loss of time. Then private.enterprise came again into the field. A body of competent men without much practice set up a report of all the proceedings of all the Courts at a very moderate price, and forestalled the " authorized " reporters. The speculation paid, and has been imitated. The "authorized reports" diminished in value. They are said to , have fallen into the hands of the same class as their compe-
titors—men without practice. They revenge themselves for the loss of customers by increasing the bulk of their reports. Hence prolixity. Under the influence of competition the number of reports has risen to six or seven. Each is afraid to leave out a case lest his rivals should publish it. Hence the report of judgments which decide trivial points or merely confirm former decisions. Hence, again, delay and expense, and again prolixity in a never-ending series. At last the patience of the profession has broken down, and after a year of inquiring, and reporting, and debating, it has determined on • a scheme in a general meeting held last Monday, of which our readers have probably seen the report in the daily papers. The scheme is not at first sight very promising. It is simply to start a sixth—or, as the case may be, seventh—set of reports. They propose to get rid of prolixity by giving the reporters a fixed salary, to get rid of costliness by publishing the whole set at a fixed moderate annual price, and to get rid of delay by making it a fundamental requirement that the reporters' duties be "faithfully and punctually" discharged. There are to be two editors to revise the reports, and a Council elected by the Inns of Court, the Law Institution as representing the solicitors, and the Lord Chancellor if he will favour the pro- ject, to superintend and direct the whole publication.
In a business point of view it is not for us to estimate what are the chances of the success of this scheme. But it seems clear that if it is to answer it must obtain the support of three' interests—the Government, the judges, and the barristers who publish the so-called ‘, authorized reports." The latter class are offered the refusal of the reporterships. But as the matter stands the Council can offer them no security for the payment of their salaries, they would pro- bably lose money by the change, and above all, they would lose their independence. Nevertheless they will probably be manageable if the judges and the Government can be gained. The former will probably favour the project. The revision of the proofs of their spoken judgments will not be a very onerous addition to their labours, and every judge must take a certain interest in the progress of our jurisprudence. The difficulty will probably be with the Government, and especially with the Chancellor of the Exchequer. The evils complained of after all chiefly affect the legal profession. They alone buy law reports. The public interest is altogether remote. No doubt the public do in the long run pay for the obscurity of the law, but they do not see it, and it would be hard to get the House of Commons to give any support to what is after all a private speculation. On the other hand, there is a very important public object to which this scheme might be made subservient, and that is the consolidation of the law. Most practical reformers begin to see that for the present codification is not possible, even if it be desirable. Consoli- dation, on the other hand, is possible, and is besides a good step towards codification. Moreover, you can consoli- date not only the statute but even the common law, so far at least as judicial decisions have given it a visible form. This is the truth which Sir James Wilde impressed on the last meeting of the Social Science Association. But to consolidate the old decisions without making some provision to prevent the excessive accumulation of the new is only a half-hearted reform. Perhaps the most logical scheme would be for the Government to take the whole affair into its own hands, pro- vide every Court with a salaried reporter, and publish the reports at the public risk. This, however, is hardly suited to our notions. But if the Government would guarantee the salaries of the reporters for a few years, it might effect an important public object without any real risk. This would certainly conciliate "the authorized reporters." Authorized reports, corrected by the judges, as cheap and as expeditious as the Law Journal or Jurist, would certainly sell. And if the Crown were to demand an authoritative voice in the appoint- ment of the Council, a body might be formed to which it would be safe to entrust the duty of excluding from the reports decisions which are not needed as precedents. With such a publication nothing could, we are convinced, perman- ently compete, and a very important public object would thus be attained, if not very systematically, very effectually. Without Government support the new law reports are not unlikely to do nothing but increase the confusion they are intended to remedy.
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