The role and influence of the nisi prius reporters on the development of the common law of the late 18th and 19th centuries

在19世纪中期大规模商业法律出版兴起之前，英国法院审理案件的唯一可广泛获得的报告是由大律师发表的，通常是为了促进他们刚刚起步的职业生涯。这些报告被称为“提名报告”，它们在质量和声誉上差异很大，但在法庭上被广泛引用为普通法的重要来源。其中包括艾萨克·埃斯皮纳斯的六卷Nisi普锐斯报告，他今天被认为是最不可靠的提名法律记者之一。他的报告（涵盖了1793年至1810年之间判决的案件）现在在英国法庭上几乎是不可引用的，被司法描述为“臭名昭著的缺陷”、“不完美和误导”，以及“缺乏准确性……从来没有引用没有怀疑和犹豫”。一位法官说，埃斯皮纳斯自己“只听到了一半的事情，报告了另一半”，另一位法官说，他不关心“埃斯皮纳斯或任何其他笨蛋”。从这些描述中，人们可以原谅认为埃斯皮纳斯是狄更斯和特罗洛普讽刺的那种邋遢、懒惰和无能的律师。但他不是那种人。他是一位忙碌而成功的大律师，是律师事务所的助理律师和财务主管，写过几篇有影响力的法律论文，还获得过皇家艺术学会的奖项。关于为什么埃斯皮纳斯的报告如此不受尊重，可以提出几种理论：也许是由于埃斯皮纳斯的主要竞争对手约翰·坎贝尔和托马斯·皮克的Nisi普锐斯报告被认为是优越的；或者，这可能是业内人士对埃斯皮纳斯晚年出版的回忆录的负面反应，回忆录中对他那个时代的著名律师和法官发表了直言不讳的负面评论。然而，最可能的解释与埃斯皮纳斯报告的司法声明的质量有关。Nisi普锐斯案大多以事实为依据，最终由陪审团裁决；因此，报告的大部分内容是在审判期间向陪审团发出的司法指示，主要是关于证据问题，其中许多指示将是匆忙送达和考虑不周到的。埃斯皮纳斯的失败可能不是他报告得太少，而是他报告得太多了。研究Espinasse的生活和工作，以及这一时期其他法律记者的工作，可以考虑到与当时法律报道的角色有关的更普遍的问题。例如，记者在决定报告哪些病例时采用了选择标准。除了这个案件是否代表某一特定法律观点的问题之外，有证据表明，某些记者也在运用他们自己的判断来判断有关的法律观点是对还是错，以便决定是否报道该观点。这就产生了这样的问题，即这件事是否应由报告人而不是后来的法官或上诉法院来决定，以及这一事实对所报告的法律领域的发展产生了什么影响。此外，在一个没有官方批准印章的时代，法官用来确定记者的质量和可靠性的标准也存在问题。值得注意的是，没有第一手证据支持对Espinasse及其报告的最轻蔑的司法评论：因此，考虑是否有任何当代证据支持或反驳这些后来的批评将是有益的。如果没有，那么问题就在于，司法部门仅仅因为记者的声誉就驳回案件的相关性，而不是根据案情进行考虑，这是否正确。

Prior to the rise of large-scale commercial legal publishing in the mid-19th century, the only widely-available reports of cases decided in the English courts were those published by barristers, often to boost their fledgling careers. Known as the nominate reports, they varied greatly in quality and reputation, but became widely cited in the courts as important sources of the common law.Amongst these were the 6 volumes of Nisi Prius reports of Isaac Espinasse, who is today regarded as amongst the most unreliable of the nominate law reporters. His reports (covering cases decided between 1793 and 1810) are now virtually uncitable in English courts, having been judicially described as "notoriously defective", "imperfect and misleading" and possessing a "want of accuracy ... never quoted without doubt and hesitation". Espinasse himself was said by one Judge to have "only heard half of what went on and reported the other half" and another Judge is recorded to have said that he did not care "for Espinasse or any other ass." From these descriptions, one could be forgiven for thinking that Espinasse was the type of slovenly, lazy and incompetent lawyer satirised by Dickens and Trollope. But he was nothing of the sort. He was a busy and successful barrister, a Bencher and Treasurer of his Inn, the author of several influential legal treatises, and the recipient of an award from the Royal Society of Arts. Several theories may be posited as to why Espinasse's reports are so disrespected: perhaps it was due to the perceived superiority of the Nisi Prius reports of Espinasse's principal rivals, John Campbell and Thomas Peake; or perhaps it was a negative reaction from the profession to Espinasse's publication late in life of reminiscences about his time at the Bar, which contained outspokenly negative comments on prominent barristers and judges of his time. However, the most likely explanation concerns the quality of the judicial pronouncements that Espinasse was reporting. Cases at Nisi Prius were mostly fact-based and ultimately decided by juries; accordingly much of what was reported consisted of judicial instructions given to juries during trials, mainly on matters of evidence, many of which will have been hastily delivered and ill-considered. Espinasse's failure may not have been that he reported too little, but that he reported too much.A study of Espinasse's life and work, and the work of other law reporters of the period, leads to a consideration of more general issues relating to the role of law reporting at this time.For example, there is the selection criteria applied by the reporters when determining which cases to report. In addition to the question of whether the case stood for a particular point of law, there is evidence that certain reporters were also applying their own judgement as to whether the relevant legal point was right or wrong in order to determine whether to report that point. This gives rise to the questions of whether that is an appropriate matter for the reporter to decide, rather than later judges or appellate courts, and what influence that fact had on the development of the areas of law being reported.Further, there is the question of the criteria applied by judges to determine the quality and reliability of the reporters, in an era where there was no official seal of approval given to them. It is notable that there is no first-hand evidence to support the most disparaging judicial comments made about Espinasse and his reports: it will accordingly be instructive to consider whether there is any contemporary evidence to support or contradict those later criticisms. If there is not, the question is then whether it was right for the judiciary simply to dismiss the relevance of a case because of the reputation of the reporter, rather than to consider it on its merits.