Legal Commentary

I've been reading up on the history of law reporting. Though I'm primarily interested in what we today owe to the future by way of a clear documentary record, it's also fascinating to see how profoundly our understanding of earlier ages of law is shaped by the fragmentary reporting of previous generations. Here's one particularly amusing passage, from James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1 (1986):

Most of those stenographers who recorded the state conventions are known to us: Benjamin Russell in Massachusetts, Enoch Perkins in Connecticut, Francis Childs in New York, Thomas Lloyd in Pennsylvania and Maryland, and David Robertson in Virginia and North Carolina. Lloyd's career is better documented than those of his colleagues. . . .

An ardent Federalist, Lloyd probably had no qualms about taking money from Pennsylvania Federalist leaders to delete all the Anti-Federalist speeches in the Convention, as he in fact did in his Debates of the Convention of the State of Pennsylvania . . . . In addition to suppressing the Anti-Federalists, Lloyd eliminated all Federalist speeches except those by Thomas McKean and James Wilson, the latter of which had obviously been corrected and "improved" after the Convention because they were printed with footnotes. The Anti-Federalists correctly charged that Lloyd's Debates had been "afterwards altered, dressed and undressed by, and at the pleasure of his benefactors," and were nothing more than Federalist campaign literature. . . .

The documentary record of debates on the Bill of Rights consists . . . of deliberations in the House of Representatives. These were published in 1834 [and are] known to and cited by scholars as Annals of Congress. For the first session of the First Congress, the period covering the gestation of the Bill of Rights, the Annals of Congress is a reprinting of a publication called the Congressional Register, prepared by none other than Thomas Lloyd . . . .

Far from improving by 1789, Lloyd's technical skills had become dulled by excessive drinking . . . . It was discovered that what Lloyd published "bears only slight resemblance to the literal transcript of his own notes. Sometimes a speech is printed for which no notes or only very brief notes exist; sometimes a long speech reported in the manuscript is printed very briefly or not at all." Another investigator has reported that Lloyd's reports were frequently "garbled" and that he neglected to report speeches whose texts are known to exist elsewhere. Lloyd's manuscript also demonstrates a wandering mind, for it is periodically interrupted by doodling, sketches of members, horses, and landscapes, and by poetry . . . .

Page 37 of Hutson's article reproduces a page from Lloyd's journal. The truly remarkable thing is that some of the sketches are upside down. And we complain about students who don't pay attention.