Note. Mr. Jus and are likely to reward the labor of those who make the examination thorough. Perhaps to this class should be added those in which the decisions of the courts have become rules of tice Milproperty," governing the rights of parties to real or personal ler's views property. As regards the relative weight to be given to the different courts whose decisions are relied on, it is more difficult to speak. I shall say nothing of the value of the decisions of the English courts in questions purely of common law or in equity. Not because I underrate them, but because every one understands their value, especially in equity and admiralty cases. These Leaving these, and the questions arising under State statutes, the value of a decision is estimated by the character of the court, or of the judge who delivered the opinion, or by both. vary much in the courts of the United States. invidious or undertaking to name other courts of high standing, there are many things in the history and character of the Supreme Judicial Court of Massachusetts which entitle its reported deciBut a sions for the last hundred years to great consideration. decision often has a merit apart from the standing of the court in which it is made, owing to the high character of the judges of the court, or of the judge who delivered the opinion. Opin. ions delivered by such judges as Marshall, Taney, Kent, and Shaw, have a value apart from the courts in which they were delivered. Even the dissenting opinions of these men and their obiter dicta have weight in the minds of lawyers who have a just estimate of their character, which they cannot give to many courts of last resort of acknowledged ability. After all, the convincing power of the opinion or decision in a reported case must depend very largely on the force of the reasoning by which it is supported, and of this every lawyer and every court must of necessity be his and its own judge. Very sincerely yours, as to the true office of ad judged cases in our law. SAMUEL F. MILLER. Lecture The enormous bulk of our case the prod rule of ju dicial pre cedent. LECTURE X. OUR LAW. THE VAST SIZE AND RAPID ACCUMULATION OF THE THE most striking phenomenon that arrests the attention of the inquirer into the condition of our laws and jurisprudence is their enormous bulk. I have already referred to this subject, but law mainly there are important aspects of it remaining to uct of the be noticed. Irregular and intermittent legislation, especially in our own time, contributes not a little to the overgrown size of our law; but its vastness is after all mainly owing to judiciary law, and the multitude of the law reports is the direct result of the authoritative force of adjudged cases. If we add to the English and American reports the statutes and the text-books of both countries, a complete working law library (and such a library is essential to thorough work) X. consists, probably, of not less than ten thousand Lecture volumes.1 As case-law constitutes the chief bulk of our jurisprudence, the inquiry may well be made, Why not keep it within more restricted limits? This is the subject which I now proceed to consider. In the annual address which in 1884 I had the honor to deliver before the American Bar Association, I made, among others, the following observations : "The most distinctive feature of the common law "of England and America is the rule of judicial precedent, or the binding force of adjudged cases "as rules of decision for like causes. In no other "system of jurisprudence is such force given to "judicial judgments as in England and America. "The result is that elsewhere the judicial reports "are comparatively few, since judicial judgments "have in general no authority and theoretically no higher rank than expositions or commentaries of private writers. The corresponding result is, ac"cording to a recent statement, that in 1881 the law rejudicial reports of England numbered two thou"sand nine hundred and forty-four volumes, and in "this country about three thousand, and they are "increasing in the United States alone at the rate "of over one hundred volumes a year. Where," I inquired, "is this multiplication of reports to แ แ 1 See ante Lecture III., p. 94, note; Lecture IV., p. 133, and Lecture VI., pp. 172-183. The enormous bulk of case-law is further illustrated, ante Lecture IX. and note, p. 250. 2 In answer to a letter which I addressed to the librarian of the New York Law Institute, inquiring as to the number of American reports in his library, I received the following: The num ber of the ports. Lecture Is the huge bulk of our case law remediable? "end? 66 66 Is it to go on unchecked indefinitely? "Is it desirable or practicable to check it? How "far is it an evil; and if it be so, what is the remedy? And," And," I added, these, Mr. President, are inquiries of such serious moment that 'they may well engage the attention of the "Association. " 1 66 In preceding lectures I have referred to the large accumulation and rapid multiplication of the law reports, and have made some observations thereon. What I have to say on this subject in the present lecture is with some revision and enlargement what I presented to the Association by request of the Committee on Judicial Administration and Remedial Procedure at its meeting in 1886, as the grounds for the conclusion which the Association reached, and which will be hereafter stated.2 I did not in the address before the American Bar Association, above referred to, undertake to make any direct answer to these questions. The Asso American Law Periodicals, December, 1885 (the publication 3,186 3,798 575 American Law Periodicals, December, 1885 (then being pub 1 Report American Bar Association, 1884, pp. 223, 224. 2 Post, p. 289. X. of the ciation, however, adopted the following: "Re- Lecture "solved, That so much of the annual address as "refers to the evils of the system of reporting Resolution "the decisions of the courts be referred to the American "Committee on Judicial Administration and Reme"dial Procedure, with a request that they report at "the next annual meeting of the Association." Bar Asso ciation as to the evils of the system of law re Whoever has attentively considered this subject, porting. will, I think, agree that its difficulties are equalled only by its importance. He will further agree, I think, that we have reached a period in our legal history when it is at least wise to stop and take an observation, that we may know, if possible, where we are and whither we are tending. Speaking generally, 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 ordinary 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 denied, nor can it be, that the judges 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, as well in cases which, where the statutes are silent, they decide by rules deduced from previous decisions, or decide by reference to the principles of natural right or universal justice, are actually, though indirectly, engaged in legislating, since they formulate, or at least authenticate, the rules which they apply to the transactions The two stituents main con of our law. |