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

尼斯普锐斯记者对 18 世纪末和 19 世纪普通法发展的作用和影响

• 批准号: 2395048
• 金额: --
• 依托单位: London School of Economics and Political Science
• 依托单位国家: 英国
• 项目类别: Studentship
• 财政年份: 2020
• 资助国家: 英国
• 起止时间: 2020 至 无数据
• 项目状态: 未结题
• 来源: https://gtr.ukri.org/projects?ref=studentship-2395048
• 关键词: role; influence; nisi; prius; reporters

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.

在世纪中期大规模商业法律的出版兴起之前，英国法院判决的案件报告只有大律师出版的，通常是为了促进他们羽翼未丰的职业生涯。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6卷Nisi Prius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1793年至1810年之间判决的案件）现在在英国法院几乎是不可接受的，被司法描述为“众所周知的缺陷”，“不完美和误导”，并拥有“缺乏准确性......”从来没有引用没有怀疑和犹豫”。一位法官说，埃斯皮纳斯本人“只听到了一半的事情，并报告了另一半”，另一位法官则说，他不关心“埃斯皮纳斯或任何其他驴子。“从这些描述中，人们可以原谅地认为埃斯皮纳斯是狄更斯和特罗洛普所讽刺的那种懒散、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，他的律师协会的理事和财务主管，几篇有影响力的法律的论文的作者，以及皇家艺术协会的获奖者。几种理论可以假设为什么埃斯皮纳斯的报告是如此不受尊重：也许这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尼西普锐斯报告的优越性;也可能是职业界对埃斯皮纳斯晚年发表的回忆他在律师界的时光的负面反应，其中包含了对他那个时代的著名大律师和法官的直言不讳的负面评论。然而，最可能的解释是埃斯皮纳斯报告的司法判决的质量。Nisi Prius的案件大多以事实为依据，并最终由陪审团裁决;因此，所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的指示，其中许多指示是仓促发出和考虑不周的。埃斯皮纳斯的失败可能不是报道太少，而是报道太多。通过对埃斯皮纳斯的生活和工作以及当时其他法律记者的工作的研究，我们可以考虑与当时法律报道的作用有关的更普遍的问题。除了案件是否代表某一特定法律观点的问题外，有证据表明，某些记者也在运用他们自己的判断，判断有关的法律的观点是对还是错，以决定是否报道该观点。这就产生了一个问题，即这是否是一个由记者而不是后来的法官或上诉法院来决定的适当问题，以及这一事实对所报道的法律领域的发展产生了什么影响，此外，还有一个问题，即在一个没有正式批准记者的时代，法官用来确定记者的质量和可靠性的标准。值得注意的是，没有第一手证据支持对埃斯皮纳斯及其报告所作的最具争议性的司法评论：因此，考虑是否有任何当代证据支持或反驳后来的批评将是有益的。如果没有，那么问题就在于司法机构仅仅因为记者的声誉而驳回案件的相关性，而不是根据案情来考虑案件是否正确。