THE

NEW YORK

SIR FREDERICK POLLOCK, BART., LL.D.,

CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD.

SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE,

Law Publishers.

BOSTON: LITTLE, BROWN & CO.

1891.

NEW YOYORK,

LAW INSTITUTE

GENERAL INTRODUCTION.

THE undertaking of "The Revised Reports" is intended to give effect to a desire which has been felt and expressed in our profession from the time of Bacon downwards. It is proposed to republish the old Reports of our Superior Courts of Common Law and Equity which are modern enough to be still of frequent practical utility, reducing them to a manageable bulk and cost by the omission of obsolete and unimportant matter. We do not pretend that the need of occasional reference to the books at large can be superseded by this or any other process of revision. In one sense no reported case can ever be obsolete while the laws and judicial usages of Englishspeaking countries are what they are: that is, no man can say beforehand that any given case, however antiquated or trifling it may appear in itself to be, may not at some time have its use for the modern practitioner or text-writer. Every decision in the books is part of the history of the law, and no part of that history can be absolutely insignificant. In a like sense the Statutes of the Realm can never be superseded by modern legislation. Every repealed statute is a piece, however small, of the political, legal, or economic history of the kingdom, and may conceivably be

a necessary witness for some historical if not judicial purpose. Nevertheless it is found expedient among practising lawyers to make a distinction even in the field of current legislation; and the thing is done with success and general approval by that well-known series, "The Statutes of Practical Utility." Reported cases admit of being distinguished in the same manner, at any rate after they have been tried by the experience of a generation or two. Some, as every lawyer knows, are constantly cited, some frequently, some just often enough to be remembered, and some, one may say with approximate accuracy, never. This last class is fairly described as of no practical utility, and the farther we go back in time the larger it becomes. By eliminating matter of this kind the bulk of the Reports will be very largely reduced, while for all ordinary purposes the remainder will be as useful as the whole former bulk; or, rather, more useful, because more handy.

The cost and trouble of forming a collection of the Reports as they stand are too notorious to dwell upon. But it is perhaps not always realised that, while most of the old Reports are pretty constantly in the market, and some are cheap, others, and those not the most obscure, are so scarce that even a buyer who is ready to pay their price cannot expect to acquire a copy within any certain time. Probably the number of really complete sets of the Reports in private hands might be counted on one's fingers. "The Revised Reports," therefore, will offer to subscribers not only much that formerly could not be bought save in a cumbrous and costly form, but some things that, except by a stroke of good luck, were not to be bought at all.

It has been decided, after careful consideration, to take the year 1785 as the starting-point for the present. The Term Reports, a series of considerable bulk and great authority, will thus be the earliest dealt with; on the Equity side the no less important series of Vesey Junior commences only a few years later. It is hoped that this decision will meet with general if not universal approval. Something might be said for going back a little farther, so as to take in Douglas for common law, and Brown's Chancery Reports for equity (a book not of first-rate authority, but the only authority for most of its period). But the date from which the continuous stream of modern authority shall be deemed to begin must be fixed somewhere, though every fixed line must be more or less arbitrary; and the commencement of the Term Reports offers, on the whole, the least arbitrary division within the possible range of choice. Moreover, the earlier Reports just mentioned happen to be of moderate compass and quite easily procurable. Any practitioner who is so minded may add both Brown and Douglas bodily to his library for a trifling cost in money and shelf-room; and, other things being equal, the balance of advantage is in favour of that course which will sooner, even a little sooner, bring "The Revised Reports" within sight of really modern decisions. If the present venture succeeds, we hope to go back to the old reporters one day. But when that day comes I am inclined to think that a different sort of editing will be wanted, and that at least the books prior to the eighteenth century will have to be treated as historical monuments rather than as authorities for modern practice. What shall