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remarkable that the Committee, with ample materials before them, did not deal with such an important part of the subject referred to them.
The Committee, we are told, before entering upon the consideration of any scheme of amendment to be suggested by any of its members, resolved to issue a circular to the profession inviting observations and suggestions; such circular was as follows:
The Committee are anxious, in order the better to discharge the duty entrusted to them, to collect the opinion of the profession upon the subject of LAW REPORTING; and for that purpose the Committee are desirous of receiving any observations which you, either alone or in conjunction with others, may be so obliging as to make upon what, in your opinion, are the advantages or disadvantages of the present system, and also any suggestions, either as to the principle or details of any amendment of the existing system which you may think desirable.
This circular was sent to the judges, and extensively distributed among both branches of the profession. In reply, the Committee received numerous and valuable observations and suggestions. Although these exhibited differences of opinion as to the proper mode of amending the existing system of law reporting, they exhibited, at the same time, a very general desire for amendment; and the Committee have been greatly assisted in the discharge of their duties by the observations and suggestions thus received.
The Committee, also, before entering upon the consideration of any plan of their own, appointed a Sub-Committee (consisting of the Hon. George Denman, Q.C., Mr. Serjeant Pulling, Mr. Henry Matthews, Mr. Quain, and Mr. Westlake) to inquire into the mode of recording and reporting judicial decisions in the various European States, and in the United States of America.
The Sub-Committee undertook these duties, and reported as follows:
The Sub-Committee thus appointed have received valuable com
munications from a number of competent foreign jurists, and other gentlemen professionally or officially connected with the chief tribunals of the countries embraced in the inquiry, and thus conversant with the subject-matter of the reference.
The Sub-Committee have by this means obtained information which they recommend to the Committee as worthy of their attention.
To begin with the system adopted in France. Every judicial decision is required to be in writing, and to be motivé, i.e., to disclose on the face of it the grounds and reasons on which it is founded; and when the signature of the President of the Tribunal has been affixed to these solemn judgments, it is the business of the Greffier to see them entered on the register of the courts, and only one version of them can therefore ever legally appear.
The records of the tribunals thus containing an authentic version of every decision, the legal profession and the public have at all times access to the register to ascertain what has from time to time been decided, and it is competent for anyone to make from the register a selection of such decisions for publication. The collections of decisions by Sirey and Dalloz, and Ledru Rollin, have been thus prepared. Though these works are deservedly held in great esteem, they are not official publications, any more than any series of English law reports.
In Norway and Sweden the judgments of the ordinary tribunals are always given in writing, and in every case entered on the protocols of the courts; and in the supreme courts of appeal, when the votes of the judges are given separately, it is the business of the registrar of the court to enter on the records of the court, not only the final judgment or conclusion, but the grounds and reasons of the decision of each judge. Here, as in France, therefore, the records of the courts supply ample materials for the preparation of books of reports or collections of decisions, and such publications are left wholly to free trade.
In Denmark, though it is competent for any one to take down, print and publish reports of cases and decisions of which he has himself taken notes, the only authentic version of judicial proceedings is the entry in the dombistocol, under the hand of the judge; containing not only the conclusion itself to which the court has
arrived, but the facts and reasons and grounds of the decision; and from these, selections of cases which may serve for precedents are made by the direction of the courts, though it would seem that other selections made by competent private publishers would be received with equal attention.
In Italy all judicial decisions, whether civil or criminal, must be read aloud in open court, with the grounds in fact or law set out at length; and authentic minutes of the judicial opinions so pronounced are duly entered in the register of the court; and compilations of the principal decisions of the four superior courts of cassation at Milan, Florence, Naples, and Palermo are published by voluntary editors, whose province it is to make a proper selection of cases for publication, to give an analysis of them in the head and marginal notes, and to explain or illustrate them in other annotations. These compilations only so far receive the protection of the State that a certain number of copies are subscribed for out of the public treasury. The compilation entitled "La Legge Romana" is a journal of judicial and administrative proceedings for the Kingdom of Italy, published at short intervals (the judicial three times a week), and containing in an abridged form notes taken from the minutes in the registers of all the important cases disposed of.
In the United States of America there is no law requiring either written decisions or a record or register of the grounds and reasons of the decisions; but the judgments are generally in writing, and in most of the States, and in the Supreme Court of the United States, there are now official reporters, remunerated by salary as well as by a portion of the profits of the publications. These reporters are generally appointed by the State, and are always removable at the discretion of the appointing power, but enjoy in the performance of their duties the same freedom as the authors of our own law reports. In the superior court of the City of New York, the judges publish the reports of their own decisions, choosing an editor from among themselves. As a rule, the official reports omit the arguments of counsel, and give only a narrative of the facts and the copy of the written judgments. The official publication rarely appears for many months after the judgment is pronounced, and until that time publications called the Law Reporter and Law Journal are referred to, but do not profess to give more than the
most important cases.
No suggestion is made that the official reporters are less efficient or more dilatory than their predecessors under the voluntary system, nor is it found that they are subject to any improper influence in the discharge of their duties; and in the State of New York the official reports are required by law to be sold at a much smaller price.
The Committee, with the information they now had before them, proceeded to consider proposals for amendment.
The first proposal discussed by the Committee was a joint proposal by Mr. Serjeant Pulling, Mr. Joshua Williams, and Mr. Westlake, and was as follows:
The present system has arisen from the default of proper records of their own proceedings being kept by the courts. The privilege which the Bar has of reporting comes to this, that any barrister may inform the court of that which the court might much better know from its own records. No remedy appears to us sufficient which does not strike at the root of the evil. It would be desirable that all judgments should be written; but this may be thought impracticable. We therefore propose as follows:
It should be the duty of the registrar, in all cases in which judicial opinions are pronounced, to record the names of the parties, and of their counsel and attorneys, or solicitors, the authorities cited, the judicial opinion or opinions delivered, and the formal judgment, order or decree; also the substance of the pleadings and the case, and the points relied upon by counsel, wherever a mere transcript of the judicial opinions actually delivered did not render any other summary of the case, pleading and points unnecessary.
Each registrar should be assisted by one or more short-hand writers, whose duty it should be to take down all remarks of the judges, especially their judgments, and any remarks by counsel which may be necessary to render them intelligible.
The short-hand writers should be allowed to furnish notes to applicants for their own profit.
The short-hand writers' notes should be written out as soon as possible, and furnished to the registrar.
It should be the duty of the registrar, from these notes and his own, with the assistance of the judges, the other officers of the
court, and the counsel and attorneys or solicitors employed, to prepare such record of the case as aforesaid.
This record should be printed as soon as possible by the Queen's printers, on paper of a given shape, each cause being on separate paper, and the transactions of each day being printed within a week at furthest.
The records so printed should be published and sold at a low price, with liberty to any person to reprint them.
The record so made should be amended by the court on sufficient evidence of its inaccuracy, and should be evidence in the same manner as the records of the courts now are.
All printed pleadings and evidence should be on paper of the same size and shape with that of the records, so that the printed documents relating to each cause might be bound up, as those relating to Privy Council causes now are in Lincoln's Inn Library ; and copies of all such printed documents should be furnished to the libraries of the Inns of Court and the Incorporated Law Society.
If a ministry of justice should be established, which we think very desirable, it might be charged with the preparation of an annual or semiannual digest, and with supplying marginal notes to the records of cases, but so that such records might also be bought without such notes by those who might think it important to get them sooner.
Mr. Joshua Williams has, since the presentation of the Report of the Committee, given his own views on the subject as follows:
I think it is due to the Bar that I should state my reasons for not concurring in the Report of the Committee on Law Reporting, of which I was nominated a member. The joint proposal of Mr. Serjeant Pulling, Mr. Westlake, and myself, mentioned in the Report, does not in every particular represent my views. I agreed to some alterations for the purpose of securing the co-operation of these gentlemen.
It appears to me that the essence of all that is practicable by way of amendment of the present system of law reporting is comprised in the three following propositions :
1. That all judgments of the superior courts should, as far
as practicable, be written.