clined, partly because some of his books are like exploded shells, buried under the ruins they have made.'

Macaulay, in 1832, predicted the judgment of the future concerning Bentham in these words:

Posterity will pronounce its calm and impartial decision; and that decision will, we firmly believe, be that Mr. Bentham found jurisprudence a gibberish and left it a science.2

This eulogium is unquestionably overcharged. With so complex and vast a science as modern English jurisprudence, it is given to no one man to effect so wonderful a transformation as is here imputed. It was not a gibberish when Mr. Bentham dealt with it. It was, indeed, much amended during his life; but in its substantive character he neither wrought nor witnessed radical changes. Still, it may truly be affirmed that he set a ball in motion which is moving still.

This somewhat extended reference to Mr. Bentham is justified as an illustration of the fact that needed reforms in the law are not generally originated or chiefly promoted by practicing lawyers or judges, and by the further fact that, in some considerable degree, the suggestions of this paper are based upon his writings or the influences which they set in motion. The conservatism, often obstinate, and the inertia, often immovable, of the bar, in every country, are truths shown in every stage of its history.

The relation of law to political science is so obvious as not to require enforcement. Mr. Pollock, in one of his instructive and valuable essays, thus tersely states this relation :

We may say with truth and fitness that law is to political institutions as the bones to the body. It is the framework from which [political] institutions take their form.3

No apology, therefore, is needed for the discussion of the present subject in this periodical; but the admissible limits of a single paper preclude much elaboration or detail. Indeed, we aim at nothing more than to set the reader to examining

1 Stephen's Digest of the Law of Evidence, Introduction.

2 Macaulay, Essay on Mirabeau.

3 Essays in Jurisprudence, No. VIII, The History of English Law as a Branch of Politics.

and thinking for himself concerning a subject which is sure to occupy more and more of public and professional attention.

II.

The first thing that arrests the attention of the inquirer into the condition of our jurisprudence is its bulk or voluminousness. Our law is composed of two main constituents: First, statute law (including, in this country, constitutional law); and, second, judiciary or case law, that is, the law made by the judges in the accustomed and direct exercise of their judicial functions.

It was long a favorite fiction that the judges did not make, but only declared, the law. But it is no longer anywhere denied, nor can it be, that the judges, not only in the process of the interpretation of statutes, especially where they extend them to cases without their letter but within their supposed reason or equity or general utility, but also in cases which, where the statutes are silent, they decide by rules deduced from previous decisions or by reference to the principles of natural right or universal justice, are actually, though indirectly, engaged in legislating, since they frame the rules which they apply to the transactions in hand, and which constitute the basis of the judgments they pronounce.1

Statute law is, of course, the direct work of the legislative body, embodied in the form of an enactment. The usual course of legislation, whatever may be its subject matter, is irregular and intermittent. The legislature, ordinarily, does not attempt a systematic enactment or complete revision of the law on a given subject. It presupposes that the common law is certain and known. Some change is deemed necessary. It is made by a statute, often crudely and imperfectly worded. The statute is then expounded by the courts as occasion arises. If the statute as interpreted (as is frequently the case) falls short of or goes beyond or fails to meet the end desired, another and often several additional enactments are passed. So the work of amendment and re-amendment and judicial interpretation

1 See paper of writer, read before the American Bar Association, August 18, 1886, entitled "Law Reports and Law Reporting."

goes on, till we have a series of statutes, which to an uninitiated observer might seem to deal with their whole subject, but are really mere islands scattered in an ocean of case-law." And thus, of necessity, the law on any special point has to be deduced as the result of an inquiry into the common law, and a study of the legislation and of decisions under different statutes.

But it is judiciary or case law that chiefly gives to our jurisprudence its enormous bulk. This law is to be found in the judicial reports of Great Britain and America. The number and multiplication of the law reports in these two countries is mainly owing to the doctrine of judicial precedent, a doctrine peculiar, in its character and scope, to the English and American law. That doctrine is shortly this: That a decision, by a court of competent jurisdiction, of a point of law lying so squarely in the pathway of judicial judgment that the case could not be adjudged without deciding it, is not only binding upon the parties to the cause in judgment, but the point so decided becomes, until it is reversed or overruled, not merely evidence of what the law is in like cases, but the very law itself, which the courts are bound to follow and apply, not only to cases precisely like the one which was first determined, but also to those which, however different in their origin or special circumstances, stand or are considered to stand upon the same principle. In continental Europe a judicial decision has no such authoritative force in any other case, whether in the same or any other court. But in England and in this country a point of law solemnly decided has the force and effect of law, binding the judges in all other cases that fall within its principle; and the judges are therefore bound, "unless it be flatly absurd and unjust," to follow and apply it.

The direct effect of the authoritative force thus given to judicial judgments has been the publication of the Law Reports, which are extant from the time of Edward II, covering a period of over 500 years. In 1881, the English Law Reports, of all kinds, numbered 2944 volumes, and at present their number is somewhat over 3000 volumes. The American Law Reports already exceed in number the English, being at this date not

far from 4000 volumes.1 The increase in both countries is not less than 100 volumes per year. If we add to the English and American reports the statutes and the text-books of both countries, a complete law library (and a complete library is essential to thorough work) consists of probably not less than 10,000 volumes.

It may be asked: Why not keep the judiciary or case law within more restricted limits? The answer is, that however desirable this may be, it is impracticable. A study of the Roman and European systems of law shows this to be impossible. Case law is part of the legal systems of continental Europe, minus simply the element of authority which it has in England and America. Therefore, as judiciary law is a necessary and indestructible part of every jural system, and peculiarly of our legal system, the publication of reports of adjudged cases will doubtless continue in the future, as in the past, without substantial restriction. So long and so far as the bar find the reports to be necessary or useful they will be published, and I am unable to see any material checks which we should be warranted, or which it would be practicable, to put upon such publication by legal enactment, however desirable it is to keep case law within more circumscribed limits. There is no reason to doubt that the judicial reports will continue to increase as rapidly as ever, adding to the bulk and to some extent to the

1 In August last, the writer addressed an inquiry on this point to the Librarian of the New York Law Institute, and received the following answer :

"LIBRARY OF THE NEW YORK LAW INSTITUTE,

Rooms 116-123, Fourth Floor, P. O. Building,

NEW YORK, August 19, 1886.

DEAR SIR: In answer to your inquiry, I may state that the list below was carefully compiled by my associate, Mr. William H. Winters:

uncertainty of the law, and this will go on and on until the effect becomes at length insupportable.

The American Bar Association, in August, 1886, considered various suggestions made with a view of preventing the present rapid increase of law reports, and reached the conclusion, in effect, that there was no expedient remedy.1

III.

This very bulk, co-operating with the intrinsic and essential nature of case law, and the casual and fragmentary course of legislation already adverted to, tends to create confusion and uncertainty. Under the conditions already considered, the consequence has been that the law has necessarily had an irregular and often incomplete development. Judicial power can of course be exerted only as cases arise for decision. It is entirely fortuitous when, if ever, a given point will arise for judgment, and only such points as actually arise can be authoritatively dealt with by the courts.

Mr. Pollock has given several interesting illustrations of the wonderfully uneven and anomalous growth of case law, as a result of its dependence upon "the casual exigencies of litigation to determine what parts of it shall be filled up and what left incomplete," observing, and truly, that "all kinds of curious little questions receive elaborate answers, while great ones remain in a provoking state of uncertainty."2 The experience of every practicing lawyer will supply him with additional illustrations of this well-known fact.

Not only is case law incomplete, but the multiplicity and conflict of decisions is one of the most fruitful causes of the

1 The views of the Association were embodied in the following resolution: "That while this Association records its approval of the present tendency of the judges to write short opinions, especially in cases turning on facts and those not useful as precedents, and doubts the utility, in the present state of the law, of the use of decisions of inferior courts as precedents, it does not deem it practicable to interfere by legislation to prohibit or limit the publication of any class of reports; and that the evils of the great volume of judiciary law must be remedied otherwise than by legislation restricting absolute freedom in the publication of adjudged cases."

2 Essays on Jurisprudence and Ethics, ch. iii.