Early Court Reporters

Gerald T. Dunne


Brave men were living before Agammenon

And since, exceedingly valorous and sage

A good deal like him too, but quite the same none

But then they shone not on the poet's page l

To suggest the lustre of Mr. Chief Justice John Marshall and Lord Mansfield would be diminished were it not for the talents of Mr. Henry Wharton and Sir Jame Burrows 2 is merely to follow the insistence of Horace that Agammenon would be much the lesser man without Homer's lyre.

But there is more to it than the petulance of the trade union of poets, for if poetic commemoration is essential to

epic heroism, the reporter's craft is indispensable, not only to the art of judging but to law itself, as another great poet, John Milton, made clear in a tribute to Cyriack Skinner's still unknown ancestor:

CYRIACK, whose grandsire on the royal bench

Of British Themis with no mean applause,

Pronounced, and with his volume taught, our laws.3

Interestingly, Roscoe Pound said much the same thing on the other side of the Atlantic in pointing out that law holds a dimension transcending precepts and institutions: "Indeed, in the everyday administration of justice, along with legal precepts, the traditional art of the lawyer's craft--the traditional mode of selecting, developing and applying the received legal materials, the traditional technique of finding the grounds of decision in those materials and of developing them into a judgment--is a factor of no less importance. That art and a certain body of received ideals . . . are in truth much more enduring than legal precepts. They give unity and continuity to legal development."

Pound went on to assert the distinct cachet of the common law inheritance: "Ours is a technique of utilizing recorded judicial experience . . . Even when we have written texts, as on American constitutional law, we proceed at once to look at them through the spectacles of the common law, and our method is not one of development of the text but of development of judicially found grounds of decision which, if they began in the text, have since led an independent existence.4

Pound also noted that mystic chord of purpose which linked the modern advance sheets and term reports to the same spirit which prompted Glanville to write his Customs and the shadowy medieval figures to compile their yearbooks. Indeed the constellation of talents which makes a reporter of the law a true reporter is an elusive thing indeed--foremost perhaps is to be a frustrated judge with essentially the same feel for the law, and also with industry, purpose, and dedication.

But to be a mindless recorder of all that transpires simply will not do, for as a rare criticism of Sir James Burrow put it, in recording everything which fell from Lord Mansfield's lips he "has in many cases given weight and permanence to what was a mere casual or suggestive remark, never intended to be delivered as an utterance for posterity."5 Above all, selectivity is indispensable, for as Edmund Plowden, doubtless the greatest of them all, wrote in 1578: "I have purposely omitted much that was said both at the Bar and at the Bench, for I thought that there were few Arguments so pure as not to have some refuse in them, then and yet holding that to be the best method of reporting. But this is a task not easily accomplished. . . 6

Beyond all this, the reporter's product must ring true in the hours of test. If it does not, even a great name in other areas of law (and the reporter's list includes Blackstone, Coke, Thomas Jefferson and John Marshall)7 will not save it. "All the respect we entertain for the reporter," observed Chief Justice John Marshall of Sir William Blackstone, "cannot prevent the opinion that words of the land keeper have been inaccurately reported. If not, they were inconsiderately uttered.''8

Mention of Marshall does suggest that in the rise of the Supreme Court, surely one of the factors was that group of men to whom are due "that magnificent series of reports, extending in an unbroken line down to the present that chronicles the work of the world's most powerful court." 9

The magnificent chronicle began modestly enough, particularly in view of the fact that when the Supreme Court first met in the national capitol of New York City for the (February) 1790 Term, it had clerk and marshal but no reporter at all, a circumstance doubtless reflected by the fact that only one volume of American reports (reputedly Kirby's Connecticut cases) was in existence.10 Kirby's had made the first appearance the previous year in response to a 1785 statute of that state requiring the judges of its highest court to give their opinions in writing.

The oral-manuscript tradition yielded ground grudgingly in the federal Supreme Court. Not until March of 1834 did an order even require the filing of opinions (8 Peters vii). Moreover, the printed record of the Court began only with the (December) 1837 Term and from 1863 to 1871, two records of opinions, one printed and one manuscript, co-existed side by side.

Hence, it was indeed a singular stroke of good fortune that when the Supreme Court moved to Philadelphia to join the President and Congress in that city, in early 1791, Alexander James Dallas of that city's bar was prompted to respond to that mysterious combination of love of law, self-satisfaction, private gain, and public spirit which had moved nameless and shadowy predecessors in intellectual title to comb the court rolls and produce both for his own use and the profession those reactions or reports which Lord Coke called "a publike relation or a bringing again to memory cases judicially . . . resolved . . . together with such causes or reasons as were delivered by the judges.''11

Two points might be made clear. First, in the long tradition of English reporting, Dallas was working for personal gain, or (what was much the same thing), professional reputation. As he himself said in the preface to his first volume, he undertook the task, "pursuant to the wish of some friends [he] was desirous to oblige."12 Second, Dallas had no intention of becoming the founder of the literary dynasty he did in fact commence, for his concerns were provincial enough--with state, not national, decisions as the title page of his first volume makes clear: "Report of Cases Ruled and Adjudged in the Courts of Pennsylvania, Before and Since the Revolution." It was in his second volume, appearing in February, 1790, that he added the opinions of the Supreme Court then sitting in his home town, changing his title page to indicate the volume covered reports of the "Several Courts of the United States and Pennsylvania held at the seat of the federal government." The amorphous title indicated what may have been another element in Dallas' decision to "federalize" his product, namely, a decision to include in the original project the opinions of the Third Circuit Court, which began its sessions in Philadelphia shortly after the initial Supreme Court meeting in New York.

Thus, almost as a by-product to a state reporting system, did the "magnificent chronicle" begin. Notwithstanding such happenstance, however, Dallas does indeed for the service alone warrant the econium bestowed in Bray Hammond's Pulitzer prize-winning Banks and Politics in America (1957)--"Mr. Dallas was a very competent person who left things better than he found them."12 Something of a real Renaissance man, the West Indian born, British educated (Inner Temple) Dallas did well at everything to which he put his hand--Secretary of the Commonwealth, district attorney, and finally service as Madison's Secretary of the Treasury, in which office he found the national exchequer virtually bankrupt and left with a surplus of $2 million. In addition, he also served for a short time as Secretary of War. He has a claim to fame beyond this--his son was George Mifflin Dallas, Polk's vice-president, and through whom his name is perpetuated in that of the Texas metropolis, "Big D."

Dallas' work as reporter has been criticized both for promptitude and completeness, his last volume not appearing until 1807. The flaws were doubtless the inevitable consequences of the lack of institutional habit and precedent. Thus, Charles Warren observed that in 16 "active" terms following 1790, Dallas reported decisions in only sixty cases and omitted a number of important ones which consequently went unreported. On the other hand, Chief Justice Hughes, following J. C. Bancroft Davis, concludes that Dallas "probably" published all opinions that were filed.l3

The transit of the Court to Washington in 1800 brought a change in the office of reporter, and a remonstrance of Dallas' successor, William Cranch, suggested that opinion writing had at last become habituated for the nation's highest court. Cranch asserted he was "rescued from much anxiety as well as responsibility by the practice which the court had adapted of reducing their opinions to writing in all cases of difficulty or importance."14

The Yankeelike anxiety was most appropriate for a reporter who had come to his post from the Boston Bar. Cranch, an Adams relative and a Harvard classmate (1787) of John Qunicy Adams, came to the new capital as an agent for a real estate speculation syndicate. The venture failed disastrously, and wound up a subject in the reports Cranch was to publish.15 In 1800 President Adams appointed him a commissioner of the public buildings of the District of Columbia and then, pursuant the Judiciary Act of 1801, probably made him one of the "midnight judges" appointed thereunder. Despite the subsequent Jeffersonian proscription of those officials in 1805, and the Adams relationship notwithstanding, President Jefferson made Cranch Chief Justice of the District Court in 1805 and he served on that Court an unprecedented 54 years. It was in 1802 that he undertook to become the reporter of the Supreme Court and published the volumes covering the terms from 1801 to 1815.

Like Coke, Cranch's work as judge was more prominent than that as reporter. Particularly outstanding were the views he expressed in U.S. v. Bollman & Swartwout, when his close reading of the treason clause forecast Marshall's historic decision.16

The demands of judicial office forced his resignation as Supreme Court reporter in 1817, but subsequently he collected and published his own decisions on the District Bench in the six volumes of the Reports of Cases Civil and Criminal in the U.S. Circuit Court for the District of Columbia (1852-53). In addition, there was also officially published his Decisions in Cases of Appeal from the Commission of Patents, 1841-47.

Cranch never returned to Massachusetts, dying in Washington in his 87th year on September 1, 1855. His reports, note the Dictionary of American Biography, "have been highly regarded for their clarity and accuracy and are of great importance since they contain a large number of Chief Justice Marshall's most vital opinions on fundamental constitutional problems."

Cranch's successor, Henry Wheaton of New York, in many ways personified the strengths and the flaws of the early system. Exemplifying the institutional crystallization of the Court, his was the first official appointment, the office of reporter having been formalized by statute in 1816. More than that, the following year Congress provided an appropriation of $1,000 per annum as his stipend. Not that the payment was seen as anything approaching a living wage, for the office was indeed expected to support the incumbent as Wheaton's published advertisements announced his availability both at the New York bar and "at the Supreme Court of the United States at Washington which Mr. Wheaton regularly attends as a Counsellor and the Reporter of its decisions."l7

Moreover, purchasers of Mr. Wheaton's reports received a real dividend for in addition to the opinions of the judges as well as illuminating headnotes, the volumes also contained long, baroque disquisitions on arcane branches of law. (Wheaton's fifth volume even included a speech of John Marshall in the House of Representatives.) Unfortunately, this genre of writing provoked an intimacy with members of the Court, particularly Justice Story, which eventually involved its own undoing.

Not only did Wheaton plead with Story for editorial help ("Will you have the goodness to . . . draw up a short marginal note of the principal points decided in Dartmouth College v. Woodward'')18 but of professional employment as well ("I pray you bear me in mind on the Circuit for retainers'').19 Typical of a familiarity whose ultimate consequence could only be contempt were the slighting comments on other members of the Court which Wheaton felt secure enough to pass on to the Massachusetts Justice ("I am sorry," he wrote of the outspoken Justice William Johnson, "that there are so many of our friend's crudities in this volume . . . he has unfortunately most concert where he is most deficient--But what can't be cured must be endured.").20

Justice Story, himself something of a reporter manque obviously regretted Wheaton's resignation upon the latter's appointment as Minister to Denmark in 1827; Story nonetheless effected a rapport with the successor, Richard Peters of Philadelphia, as close as the one he had ever held with Peters' predecessor.

In an illuminating datum of cultural history, and proving that each age must write its own reports, Peters turned out a very different product from that of Wheaton. It was typical of the busy, bustling young republic that lawyer demand shifted from the lengthy Wheaton erudition to the streamlined, stripped-down, synoptic product which Peters turned out, not only for his own time in office but for the years of his predecessors. In updating and summarizing the entire Supreme Court series, Peters disclaimed any intention of "interfer[ing] with the interests of those gentlemen who have preceeded the reporter in [that] station. . . ." In effect telling Wheaton to keep his notational embellishments, Peters insisted that the "opinions of the court are public property."21 Asserting the contrary, Wheaton returned from Denmark and filed suit for an accounting for the materials in his own volumes. The issue went all the way to the Court whose cases he had once reported, and at the 1834 Term that Court, per Justice McLean, held against him in Wheaton v. Peters,22 (1834), and insisted that its opinions were indeed in the public domain, with only the notations being the subject matter of private ownership.

Wheaton was especially distressed at the decision, which he regarded as Story's betrayal and he insisted that Chief Justice Marshall "pinned his faith on the sleeve of his prevaricating brother." Indeed the outraged Wheaton hinted at blackmail, insinuating that Peters (or someone) had "something in writing under the hand of one of [the] learned bench which if made public would condemn him to infamy."23

Wheaton assuredly had grounds for his wrath, for if any characteristic of the reportorial system was quintessentially clear, was the status of the work product as private property. Such was the entire thrust of the common-law tradition 24 supported by an abundance of confirmatory data from testamentary litigation 25 to extrajudicial comment. Threads of the fabric can be seen in Justice Story's observation on his own circuit opinions ("A volume . . . is prepared by the reporter, but he finds no person willing to print them or pay any value for the copyright").26 Indeed Dallas copyrighted his work product as did Cranch (who duly protested to Peters, when the synoptic series appeared, that he was still $1,000 out of pocket for the publication of his last three volumes). And so did the luckless Wheaton, all doing so in the spirit of Lord Hale's legacy of his manuscripts to Lincoln's Inn, which epitomized the whole proprietary spirit:

"They are a treasure well worth the having and keeping, which I have been forty years in gathering with very great industry and expense."27

Yet, insofar as poor Peters was concerned, his erudite "industry and expense" of his learned asides made as little impression on the anti-intellectualism of the age of Jackson as his proprietary claims outraged the new antipathy to private monopoly. Wheaton was literally ruined by the decision--in fact he spent his inheritance on the fruitless litigation seeking to uphold his claim.

Wheaton was to have a sweet revenge, all in due course. At the moment, however, the adverse legal decision, for all its distressing financial consequences was but the momentary faltering of a meteorically successful rise. Returning to Europe, this time to Berlin for at the request of the Kingdom of Prussia he was appointed charge d'affaires in 1835 and promoted to minister in 1837. The promotion was largely occasioned by the publication of his Elements of International Law in the preceding year. Wheaton continued to serve under successive Presidents until James K. Polk requested his resignation. He returned to the United States in 1847 after an almost unprecedentedly long and successful diplomatic career, and was preparing notes for a lectureship at Harvard when he died at Dorchester in March 1848.

In addition to his Reports and Elements, Wheaton's literary legacy--indeed thirteen printed pages are required for his bibliography 28--includes his Histoire des Progres du droit des gens en Europe, despuis la Paix de Westphalie Jusq'au Congres de Vienne, which was published in Leipzig in 1841, and republished in New York in English (1842) under the title History of the Law of Nations in Europe and America. The History, thanks to editorial cross-reference, eventually became a companion volume to the Elements, the fourth (French, 1848) of the latter work being repeated, re-issued and translated into Italian, Spanish and even Chinese and Japanese.

Moreover, in an ironic post-mortem, Wheaton's name and widow were again involved in copyright litigation in Lawrence v. Dana (5 Clifford)29 which unsuccessfully asserted an unfair use by (Richard Henry) Dana in the eighth edition of the Elements of the plaintiff's notes to the sixth and seventh editions.

Indeed, just as Wheaton's career was approaching its meridian, that of poor Peters encountered a virtually Gothic deadfall when he was summarily discharged as a consequence of a long simmering antipathy with certain members of the Taney Court, principally Justices Catron and Baldwin. While the formal occasion of the breach seemed to have been the delay in publishing the reports--a long standing complaint about reporters, down through the ages-- an item that surfaced even in appropriation statutes 30--the actual cause seems to have been a personality conflict, pure and simple. Indeed, little came of the incident save that the outraged, overreached and unconsulted Justice Story considered resigning over the incident but philosophically forbore ("But let it pass, I no longer expect to see revived the kind and frank courtesy of the old Court" ).31

Peters lived to 1848, his other works including Cases in the Circuit Court of the United States for the Third Court . . . District of New Jersey 1803 to 1818, and in the District of Pennsylvania 1815 to 1818 (1819); Report of cases . . . in the Circuit Court of the United States for the Third Circuit from the Manuscripts of Bushrod Washington (4 vols. 1826-1829); The Public Statutes at Large of the United States (1848); and A Practical Treatise on the Criminal Law (3 vol. 1847), an edition of Chitty's earlier work.

Exemplifying Peters' brittle personality was his action in publishing the (now rare) last volume of his reports, Vol. 17, covering the same ground as the first volume of his successor's, the latter including a terse notice of the change of reporters and a letter from Justice Catron appending a multipage list of errata per an alleged promise. Typical also was Peters' reply to an apparent complaint from Justice McLean (who surprisingly voted for retention) that the latter's delay in furnishing an opinion delayed the Term reports by five weeks.

Peters' successor was Benjamin Chew Howard (1791-1872) of the Baltimore Bar, a veteran of the War of 1812 who had then undertaken a long career in Maryland politics serving in the Baltimore City Council and the Maryland House of Delegates and the National House of Representatives from 1829 to 1833 and from 1835 until 1839 and bore the militia title of "General" with dignity. He was thereafter Senator in the Maryland legislature, resigning to accept appointment as reporter of the Supreme Court. There does not appear to be any evidence that he sought the appointment (which apparently came his way through long association with Chief Justice Taney) or was otherwise implicated in Peters' ouster. Significantly, his term carried into and ended in the days of the Civil War which he dreaded. ("I fear that our country is to be cut up . . . as you would slice up a loaf of bread.")32 He served as a delegate to the wartime Peace Conference of February 1861, and resigned during the vacation following the 1861 Term to become the Democratic nominee for the Maryland governorship, but was defeated by an unconditional Unionist. He died in Baltimore in 1872 after a lingering illness.

The 23 volumes of his reports were models of "clarity, diction, and thoroughness.

Irascible, outspoken and choleric William Sullivan Black (1810-1883), who thought Abraham Lincoln "very small potatoes and few in a hill" and Horace Greeley "A musntord and traitor,"33 missed elevation to the Supreme Court itself by the narrowest of margins, became its reporter in December 1861, coming to the job from an extensive background in law and politics. Born in Stony Creek, Pennsylvania, he was admitted to the bar in 1830, quickly succeeding to an extensive practice and thereafter rising through the offices of deputy state attorney general and to the state supreme court, which he eventually headed as chief justice.

Black was brought to Washington as Attorney General by his fellow-Pennsylvanian and political associate James Buchanan. There his hard-lining strict construction made his cabinet post a cockpit of controversy. His first targets were the "squatter" sovereignty supporters of Stephen Douglas, whom he vigorously attacked by word and pen on the thesis that state legislatures were powerless to override the guarantees of the Fifth Amendment per Dred Scott and he subsequently supported the Lecompton Constitution in the Kansas tragedy. This experience doubtless shaped the doctrinaire and paradoxical policy which, at his urging, the Buchanan administration adopted in its closing days--that secession was unconstitutional, that the President was nonetheless bound to protect federal prerogative and property everywhere throughout the Union, that the President was constitutionally powerless to coerce a seceding state. Manifestly grateful for services rendered, Buchanan appointed Black Secretary of State in December of 1860 and named him to the Supreme Court in February of 1861. On the eve of Washington's birthday at the 17th year, Black's temper and pugnacity caught up with him as the Senate rejected him 25-26, the negative votes being supplied by a strange coalition of Republicans, Douglas-Democrats and Southern secessionists, all of whom Black had progressively outraged.

After Lincoln's inauguration, Black settled into the comparatively placid reportership of the Supreme Court, which he held for two terms, mainly spending his time as a consultant on California land litigation, an expertise he had acquired during his Attorney-Generalship. Political adversity did not dull his sharpness for throughout the War he remained an outspoken critic of the Lincoln dictatorship and scored a decisive postwar victory for his views in Ex Parte Milligan, 1 Wall. 243 (1864): ("Of all the arguments, the most powerful is that of Jeremiah S. Black . . . `undisputably the most remarkable forensic effort before that argued tribunal, delivering his address without a solitary note of reading from a book, and yet he presented an array of law, fact, and argument with such remarkable force and eloquence as startled and bewildered those who listened to him . . .' ")34; and, Ex Parte McCardle ("The speech of Terry Black was an extremely bitter copperhead harangue on State Rights and the unconstitutionality of the Reconstruction laws. He evidently argued the McCardle case con amore")35; and the Slaughterhouse cases as well.

Devout Campbellite and champion of lost causes to the end, Black expounded Tilden's claims to the presidency before the Electorial Commission of 1876-1877. As an admiring biographer writer in the Dictionary of American Biography notes, ". . . he died in August 1883, his great mental energy unflagging to the end . . . and [after] quarter of a century upon the national stage as a defender of the Constitution, the Union, and the Ten Commandments."

The last of the oldtime reporters was also a Philadelphian, John William Wallace, who ,was in addition the first law librarian to hold that position. A man of extraordinary literary talents which included the art of print, Wallace's extensive bibliography included, in addition to his Supreme Court reports, a remonstrance, The Want of Uniformity in the Commercial Law Between The Different States of our Union (1851), Pennsylvania as a Borrower . . . Her Ancient Credit, Her Subsequent Disgrace (1863), remarks on his grandfather, An Address Delivered at the New York Historical Society, May 20, 1863, of the Two Hundredth Birthday of Mr. William Bradford (1863), and in the same vein, An Old Philadelphian, Col. William Bradford, The Patriot Printer of 1776. In view of his ultimate appointment, his most significant writing must surely be accounted an anonymous contribution to the January (1844) American Law Magazine entitled The Reporters, Chronologically Arranged: With Occasional Remarks Upon their Reporting Merits. Subsequently republished (1845, 1855 and 1882, the latter photo-reprinted in 1959) as a book, the work, a towering tour de force of scholarship, firmly established Wallace's reputation, and rightly so in view of its remarkable combination of solid research and lively style.36 Unfortunately, only English reporters were the subject of appraisal, but no Americans.

Nonetheless, certain of these asides, made by the subjects themselves, their contemporaries, or Mr. Wallace, warrant current repetition:

"Judge Jenkins--on the capital sentence of the Long Parliament: `I shall go with the venerable Bracton's book on my left shoulder and the statutes at large on my right. I will have a Bible with a ribbon put round my neck hanging on my heart . . . All these were civil counsellors and they must be hanged with me.' 37

"The Yearbooks--`The style of reporting which marks this volume is quite unlike that of modern days. The report seems to be almost an exact transcript of whatever was said or done in court during the trial of a cause and often ends with the statement or argument of counsel (being as far as the case proceeded during the first day) without mention of what became of it finally. This of course gives the report a mutilated aspect and an air of dramatic darkness not very inviting to the modern reader.

"When the yearbooks were reprinted in 1678, they were recommended by Lord Nottingham and the other judges' to the students and professors of the law as a principal and essential part of their study, but so completely have they been swept in wrath by 'time's urgent tide' that in Seymour v. Barker, when sergeant Williams cited a case from 7th Edward III, Mansfield, C. J., told the sergeant that it was 'a great way to go back for a precedent,' while Mr. Justice Heath irreverently exclaimed: 'come to modern precedents, something within three hundred years!' . . . [But] the judges of the King's bench would seem to regard them more dutifully; for in Vyvyan v. Arthur, a precedent was quoted from this same reign and, being in point, ruled the case. So in Outran v. Morewood, Lord Ellenborough greatly relied on the yearbooks, and we even find them quoted in our own country as lately as 1837 in a local court on a question relating to the law of Pennsylvania (Bujac v. Phillips, 2 Miles 73).' 38

"Coke--Sir Edward Sugden cautions us also in regard to all the reports lest `our just admiration for Sir Edward Coke's profound legal learning carry us too far.' `His system of turning every judgment into a string of general transactions or resolutions has certainly a very imposing appearance, but there is a system of all the others, the least calculated to transmit a faithful report.

"Notwithstanding all this, however. . .Coke's reports . . . will continue to be THE REPORTS and no higher eulogy need they ever receive than that which they drew from Coke's great enemy and Lord Bacon: `Of this I say no more, but that to give every man his due, had it not been for Sir Edward Coke's reports (which, though they may have errors and some peremptory and extra-judicial resolutions more than warranted, yet they contain infinite good decisions and rulings only of cases) the law, by this time, had been almost like a ship without ballast, for that the cases of modern experience are fled from those that are adjudged and ruled in former times.'"39

Best of all, his comment on the great Plowden makes up the presumption for the complete reporter:

". . . Plowden seems to have understood a reporter's duty for he tells his readers that before the case was argued he had copies made of the record, and took pains to study the points of law arising thereon; so that if he had been put to it, he was ready to have argued when the first man began.' He attended the arguments with utmost assiduity and after he had drawn out his reports, submitted them in many instances to the judges or sergeants who argued the case. He gives the pleadings at length. His labors have not been without their recompense for his reports, according to Lord Coke, are `As they deserve to be with all professors of the law, of high account.'" (Pref to 10th Reports)40

The line of the old reporters comes to an end with Wallace. No statute ordered it. No action of court provided for the change. However, as one metaphor put it, Adam Smith's invisible hand was becoming more palsied as the 19th century wore on, and the problems of production, distribution, authenticity and so on required some socialization. One straw in the wind came with the judiciary appropriation in 1874 in which an unprecedented $25,000 was allocated to the Supreme Court reports and the 91st volume of "the magnificent chronicle" issued under the caption "United States Reports" rather than the name of the reporter.

The old tradition died hard for the name of the first of the new line, William Tod Otto (1816- 1905) appeared on the title page if not on the exterior binding. Otto, like many of his predecessors was born and died a Philadelphian. A graduate of the University of Pennsylvania (1829), he studied law in an Indiana law office. He served as an elected judge from 1844 to 1852, and from 1847 to 1852 was professor of law at Indiana University. During his subsequent practice of law, he was a Lincoln delegate to the 1860 Convention. In 1863 he was appointed Assistant Secretary of the Interior, resigning to become an arbitrator of Cuban claims. He continued his law practice, which included argument of Murdock v. Memphis, 20 Wall. 590 (1875), and in the latter year was appointed the first of the non-proprietary reporters, an appointment which he resigned in 1883 after 18 volumes of the United States Reports had passed under his stewardship. Indeed the terms of his leaving office signalled how the old order had passed away, for he made his resignation "[E]ffective upon publication of Volume 107 of the United States Report," and the matter was duly noted in the forepart of that volume. After his resignation as reporter, he served as a United States Commissioner to the International Postal Congress, and died in Philadelphia in his ninetieth year.

In terms of sheer distinction, another of the second dynasty must be memorialized. This was John Chandler Bancroft Davis (1822-1907), a descendant of two distinguished families and a nephew of George Bancroft. Class of 1847 at Harvard (delayed degree) Davis was admitted to the Massachusetts bar in 1844, practiced in New York City and served with the American legation in London from 1849 to 1852. Returning home, he again took up practice in New York and became American correspondent for the New York Times. Subsequently he was elected to the New York legislature and served as Secretary to the American Commissioners in the Alabama settlement, personally preparing the case of the United States. He thereafter successively served as Assistant Secretary of State, becoming Judge of the Court of Claims in 1883, and later in 1895 he was appointed reporter of the Supreme Court, in which his service was distinguished by a scholarly appendix (on reporters, inter alia) in Volume 131 U.S. He retired in 1902 after 19 years of service. His other publications include works in legal and diplomatic history, and a tract, Origin of the Book of Common Prayer in the Protestant Episcopal Church (1897).

Notwithstanding their public and private virtues and their intellectual and institutional links with their predecessors in title, Otto and Davis stand apart from the dynasty of proprietary reporters, and have no part in that the tradition which like reporting itself, prescinds from an almost mystic force rather than rule of court or statute in ordaining that volumes of the Supreme Court prior to 91 U.S. are cited by the name of the proprietary reporter.41

Thus the old reporters live on, not through sentiment, however important, but in the very necessity of the case. ". . . [T]o obliterate the records of the old Reports is impossible," writes John William Wallace. "You might as well repeat the folly of revolutionary France, and begin again with the year one. In the physical world, every vestige of the ruined past may be swept away. Not so in the intellectural and moral. As now the old Reports are, so they will continue to be . . . the cradle of our jurisprudence. In the law, the present is ever of the fact." 42

Happily the old tradition not only goes down fighting, but fighting hard. Beginning in 1954 the law reviews introduced the "thoroughly abominable"43 system of using the U.S. numericals with a parenthetical citation, the foundationhead of the practice being the ninth edition of the so-called Harvard Blue (now white) Book, A Uniform System of Legal Citations. Justice Frankfurter gravely objected, insisting sternly on "the need for preserving ancient traditions."44 Despite his words the innovation has persisted, as the eleventh edition of A Uniform System irrepentantly proclaims the same insidious doctrine.

There are two possible responses; one verbal as set out by Col. Frederic Bernays Wiener, a great American advocate and soldier and scholar par excellence, whose spirit is lineal to Plowden, Wheaton, and Wallace:

"Thus, the citation to Marbury v. Madison is 1 Cranch 137, not 5 U.S. 137, to Luther v. Borden 7 How 1, not 48 U.S. 1 . . . Citations to such cases other than by the name of the reporter alone, mark the brief writer as a legal illiterate, or at the very least, as one not very well brought up."45

Note the "alone" supra, for Colonel Wiener especially insists that the foregoing cases emphatically are not cited, 5 U.S. (1 Cranch) 137 or 48 U.S. (7 How) 1. As to the "thoroughly abominable system" of parenthetical extrapolation to the proprietary reporters Colonel Wiener adds: "[I]t seems sufficient to remark that it is one of youth's inalienable privileges not only to be wrong, but stubbornly wrong as well. No lawyer worth his salt is going to abandon the Supreme Court's own consistent usage in favor of this deverse innovation."46

Beyond words, there is a sanction. To help the salt keep its savor, Mr. Justice Frankfurter, as the price of a law review contribution, required his reportorial citations be carried in the traditional form.47 So does Colonel Wiener.

This array of authority, particularly when joined to Lord Coke's insistence that reporting is of divine origin (after all, "God hath left the precedent of a judge--who was the first reporter of the law"),48 does yield an appropriate closing injunction: that all readers who may also be law review contributors reflect on the Frankfurter-Wiener sanction in the light of the still earlier report of Luke 10:37.49

Gerald T. Dunne is professor of law at St. Louis University and the author of Monetary Decisions of the Supreme Court (1960), Justice Joseph Story (1970) and Hugo Black and the Judicial Revolution, to be published in September 1976.

Endnotes

1 Byron, Don Juan, Canto I;v, translating Horace, Book IV, Ode 9, Strophe 7.

2 Sir James Burrow of Inner Temple; was born in Surrey. Both an F.S.A. and F.R.S., he served two terms (1768 and 1778) as president of the Royal Society of Antiquaries. He produced in addition to his famous reports "Observations Relating to Oliver Cromwell and His Family" (1763); the reports first appeared in 1768, the Decisions of King's Bench upon Settlement Cases from the Death of Lord Raymond, March, 1732. His magnum opus is "Reports of King's Bench during the time of Lord Mansfield's presiding"; the classic 5-volume (fourth) edition appearing coincident with Dallas' initial publication in 1790. The Dictionary of National Biography asserts, "Burrows' merits as a law reporter have been universally vindicated," a judgment reiterated by the great American authority, John W. Wallace, "[t]he reports of Sir James Burrows make an epoch in the history of reporting. He made his reports for the purpose of publishing them, but the system of term reporting had not yet been 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 have been a few reporters before him . . . Plowden, Saunders . . . 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--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." Wallace, The Common Law Reporters (4th ed. 1882, photo-reprinted, 1959) [Hereinafter cited as Wallace]. Interestingly, the one indispensable canon persists into the current Supreme Court reports wherein each opinion is preceded by a "Syllabus" which "constitutes no part of the opinion of the Court but [is] prepared by the Reporter of Decisions for the convenience of the reader," e.g., United States v. Nat'l. Asso. of Sec. Dealers, Inc. 95 S.Ct. at 2430 (1975).

3 Milton, Sonnet XVI to Cyriack Skinner, Poetical Works 510 (1893) .

4 Introduction to Winfield, Chief Sources of English Legal History xiii, quoted in Plucknett.

5 Wallace 325.

6 Plowden, Commentaries iv (1816 ed.).

7 See Wallace 443, 165, 590, 590 n3.

8 Babtist Association v. Hart, 4 Wheat. 41 (1819).

9Friedman, A History of American Law 283 (1973).

10 While Kerby is customarily given the honor of the "first" American reports, John William Wallace insists that the honor--by a few months--goes to Hapkenson's Judgments in the Admiralty of Pennsylvania (February, 1789), Wallace 471 n.2.

11 Commentary on Littleton 293a quoted in Abbott, Law Reporting in England 1485-1585 (1973) [Hereinafter cited as Abbott].

12 Hammond, Banks and Politics in America 229 (1957).

13 See I Warren, Supreme Court in United States History 158 n.2 (1926) [Hereinafter cited as Warren]. On the other hand, Chief Justice Hughes obviously following J. C. Bancroft Davis (note 7, supra) concedes Dallas "probably" published all opinions that were filed. Hughes, The Supreme Court of the United States 65 (1928); Davis, Appendix, 131 U.S. xvi [Hereinafter cited as Davis].

14 Davis xvi.

15 Pratt v. Carroll, 12 Cranch 471 (1814).

16 U.S. v. Bollman & Swartout Fed. Cas. #14,622 and 4 Cranch 875.

17 Dunne, Justice Joseph Story 199 (1970). [Hereinafter Dunne].

18 Id. at 200.

19 Ibid.

20 Id. at 201.

21 I. Peters, Condensed Report of Cases in the Supreme Court vi (1844 ed.).

22 8 Peters 673 (1834).

23 Dunne 327.

24 See generally Abbott, note 11 supra.

25 See, e.g., Wallace 494.

26 Dunne 129.

27 Wallace 637.

28 Baker, Henry Wheaton 311-324 (1937).

29 Lawrence v. Dana, Fed. Cas. #8136 (CC Me. 1869).

30 Thus, the 1828 appropriation (3 Stat. 768) conditioned the reporter's compensation upon the reports' being published within nine months of the term, a condition subsequently reduced (4 Stat. 205) to six months.

31 Dunne 423.

32 Swisher, Roger B. Taney 540 (1935), 491, 516, 527, 531, 538, 561.

33 Id. at 562 and 491.

34 2 Warren 425 n.2.

35 Id., at 465 n.1.

36 See, e.g. Plucknett, A Concise History of the Common Law 248 (2nd ed. 1936; Abbott 6).

37 The Reporters, Arranged and Characterized 71 (1959 Reprint). Quotation American Law Magazine, Jan. 1844 p. 272 n.1.

38 Id. at 273-274, 276-277.

39 Id. at 283-284.

40 Id. at 282.

41 Stein and Grossman, Supreme Court Practice 462 (1969). See also, A Uniform System of Citation 15 (11th ed; 1967); Schmeckeber Government Publications and Their Use 259 (1965); Wiener, Briefing and Arguing Federal Appeals 28 (1961) [Hereinafter cited as Wiener].

42 Wallace 50-51.

43 Wiener 228.

44"With the Editors," 69 Harv.L.R., (Dec. 1955, p,.v.).

45 Wiener 228.

46 Id. at 229.

47 See "With the Editors," n.44 supra.

48 Preface to Sixth Reports XV. (The reference is to Moses.)

49 "Go, and do thou in like manner."

Copyright 1975, The Supreme Court Historical Society