Historical Background

There have been eighteen Reporters of Decisions since 1804. Prior to 1867 the volumes of reports were named for the Reporter who published them, e.g., 1 Pinckney, 9 Gray, 4 Tyng [96 in all]. Beginning with the volumes next succeeding the series edited by Charles Allen (1861-1867) the volumes were named "Massachusetts Reports" and numbered beginning 97.

Up until 1874 no public office was provided for the Reporter. The court's opinions were kept in the Reporter's private office, or at his house, while they were being prepared for publication. That circumstance made it more difficult for members of the bar and the public to have access to them. In 1874 the legislature responded to that problem by enacting St. 1874, c. 43, requiring that:

"The commonwealth shall provide a safe and convenient place in Boston where the reporter shall keep the written opinions of the court in all law cases argued in the several counties until their publication in the reports, and his dockets and copies of papers in such cases, and where he shall afford due facilities for their examination."

An early decision of the Supreme Judicial Court, Nash v. Lathrop, 142 Mass. 29 (1886), interpreted the rights of the public, the Reporter, his designated publisher and other competing publications to the court's opinions.

In 1879, and again in 1884, the Commonwealth entered into a contract with Little, Brown, and Company (Little, Brown) that purported to give that publisher an exclusive right of publication of the reports of decisions of the Supreme Judicial Court. By the terms of the contract, the Commonwealth "covenanted that the reporter should prepare and furnish the reports to Little, Brown, and Company, seasonably for publication, and should 'not publish, or furnish for publication, any reports of said decisions in any other manner.' [contract executed between the Commonwealth and Little, Brown, and Company on May 1, 1879.]," Nash v. Lathrop, supra at 30.

In 1886, Joseph Nash, publisher of the Daily Law Record, and two other out-of-State publishers--West Publishing Company and Lawyers Cooperative Publishing Company, both of whom intended to gain access to the decisions through Mr. Nash--brought a petition for a writ of mandamus to compel the reporter, John Lathrop, to allow Mr. Nash to examine, take and publish the reports in the reporter's custody. Mr. Lathrop refused, at the request of Little, Brown, citing his obligations under the contract.

Chief Justice Marcus Morton, writing for the Supreme Judicial Court, framed the question as "whether the Commonwealth has granted to Little, Brown, and Company the exclusive right of first publication of the opinions of the justices: in other words, whether it has conferred upon that firm the power of saying that such opinions shall not be made public until they are published in their reports." Id. at 35.

The court held that Little, Brown had by contract acquired the copyright in the volumes that had previously been the Reporter's, but this right of publication did not "give to that firm the right to suppress and keep from the public the opinions of the justices until they should print them in the reports." Id. at 39.

The court held further that "[t]he decisions and opinions of the Justices are the authorized expositions and interpretations of the laws which are binding upon all the citizens. They declare the unwritten law, and construe and declare the meaning of the statutes. Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices." Id. at 35. "The policy of the Commonwealth always has been that the opinions of the justices, after they are delivered, belong to the public." Id. at 36.