Page 16 - Delaware Lawyer -Spring 2021

FEATURE | PRACTICING LAW IN A NEW NATION
what he chiefly affected and it was his constant wish to be easy and cheerful himself and to see others in a like dis- position.”20 This is perhaps a bit more flattering than the reputed epitaph of another British reporter, John Strange: “Here Lies an Honest Lawyer, That is Strange.” Strange’s reports of 1795 are also in the Sussex library.
Not, of course, that the improve- ments in court reporting prevented criticism of the reporters and their work. Of Ivan Espanisse’s reportage of proceedings at Nisi Prius — well known and popular in America — one wag wrote: “Espanisse heard only half of what went on in court and reported the other half.” Several of Espanisse’s works, all dealing with Nisi Prius, are in the Sussex Library.21
Another reporter of note whose work appears in the Sussex library was Sylvester Douglas, Lord Glenbervie, who also reported Lord Mansfield’s de- cisions on the Kings Bench. Douglas, who was Scottish, was married to the daughter of Lord North, the British Prime Minister who caused the Ameri- can colonies so much grief. Despite the Americans’ dislike of Lord North and his policies, his son-in-law’s reports were prevalent in the new nation.
But perhaps most highly relied upon by American lawyers and judges were the reports of Edward Hyde East. Indeed, according to John Gage Mar- vin in his 1847 American bibliogra- phy, or thesaurus, of American, Eng- lish, Irish and Scottish law materials, “No English reports are oftener cited in American courts than [East’s].”22 And in the Sussex library, there are two sets of reports of Kings Bench cas- es reported by East. The first, covering the years 1785–1800, was co-reported with Charles Durnford. The second set consists of nine volumes, one pub- lished each year from 1801–1810. The serial publication dates reflect the fact that East was the first reporter whose
reports were published regularly at the end of each term of court.23
Interestingly, East’s later reports were published in Philadelphia, as well as in England, and illustrate the accom- modation that was developing between English and American law a quarter century after the Revolution. The title page in one volume reads that it was printed for “P. Byrne,” identified as a “law bookseller” in Philadelphia and states that it contains “ADDITIONS by a member of the Philadelphia bar.” A note, or “Advertisement,” at the begin- ning of the volume by the editor (who is anonymous) notes the similarities of decisions of British and American courts — as well as the differences that were beginning to appear in the two systems. It also notes the increasing im- portance of the decisions of American courts. The note reads, in part:
“If the decisions of learned judges in England have commanded the attention of the United States, it is flattering to the just pride of Americans to observe the respect with which the opinions of our Courts are treated by the Courts of England. The usual deference and the origin of our legal estab- lishments satisfactorily account for the almost uninterrupted unifor- mity between the American and English decisions in controversies determined upon principles of Common Law. But if a proper re- spect for the judgment of the Eng- lish bench be desirable, it must be conceded that a deference for the decisions of American Judges, is of infinitely more moment in the due administration of Justice in the United States. These and oth- er considerations have led to the publication of the present edition of East’s Reports in a manner dif- ferent from that which have here- tofore been published.”
Not only were British reports being
“edited” to reflect American decisions, but also volumes reporting solely de- cisions of American courts began to appear around the turn of the 19th century. An example of this develop- ment is, notably, Alexander Dallas’s reports of Cases Ruled and Adjudged in the Several Courts of the United States and of Pennsylvania. There are four volumes of Dallas’s early reports in the Sussex library. Also prominent is Bushrod Washington’s Report of Cases Argued and Determined in the Court of Appeals of Virginia, printed in Rich- mond in 1799.
Similar to the practice in the report- ing of decisions in England, Dallas, a lawyer in Philadelphia, recorded deci- sions as a private venture. Dallas’s first book of reports, published in 1790 (which is in the Sussex library), deals with decisions of courts in Pennsylva- nia both “before and since the Revolu- tion.” According to his introduction, he was able to include pre-Revolution cases not from having heard the argu- ments, but by using notes taken by judges and by collecting briefs from counsel. His initial volume was dedi- cated to Thomas McKean, then Chief Justice of Pennsylvania.24
Volume III of Dallas’s Reports, dated 1799, and with a time frame of 1794–1799, covered decisions of the United States Supreme Court, as well as decisions of the Pennsylvania Supreme Court and the federal Circuit Court in that state. Vol. IV, published in 1807, covered decisions of both federal and Pennsylvania courts. It also includes two Delaware decisions from the state’s Court of Error and Appeals. Dallas’s successor as United States Supreme Court Reporter was William Cranch, John Adams’ son-in-law, who also re- corded decisions as a private venture. It was not until 1817, at the urging of Jus- tice Story, that a salaried reporter was appointed for the U.S. Supreme Court, one Henry Wheaton.25
14 DELAWARE LAWYER SPRING 2021