UNIFORMITY OF LAW IN THE SEVERAL STATES AS AN AMERICAN IDEAL.

HE accumulation of case law and statutes in the United States has reached such proportions that it demands serious attention from all who are engaged in the study or the administration of the law. The Supreme Court of the United States and the courts of last resort in each of the forty-six states are producing annually volumes of new decisions which are binding precedents upon all inferior courts within their respective jurisdictions. In addition the national legislature and the legislature of each state are holding annual or biennial sessions and enacting new laws.1 Every year it is becoming more difficult for lawyers and judges to keep up with the law. Judicial opinions written upon the plan often followed by Mr. Justice Gray, which were designed to exhibit the entire course of decision upon the subject in hand down to the date of the opinion, and of which conspicuous examples may be seen in Hill v. Boston,2 Ross v. Ross, and Hilton v. Guyot, are becoming a sheer impossibility. As the precedents increase in number the judges of the highest courts under the pressure of business find it more and more difficult to examine carefully and cite the decisions of other jurisdictions. Whether the citation of outside authority has in fact diminished is a question which it would require much labor to answer with confidence, and upon which, in the absence of wide investigation, there is room for difference of opinion.5 The rapid increase of cases also presses hard upon the legal profession. A lawyer in full practice now finds it more and more dangerous to advise upon the law of any jurisdiction except his own. Teachers of law in the several states are perplexed by the multitude of pre

1 Alabama is the sole exception, the sessions of the legislature being quadrennial

in that state.

2 122 Mass. 344.

8 129 Mass. 243.

4 159 U. S. 113.

See Report of the Committee on Law Reporting, 18 Rep. Am. Bar Ass'n, 343, and the valuable table annexed. Also see 2 Ill. L. Rev. 186, a note by Professor Roscoe Pound, and 21 HARV. L. REV. 119, note by Professor Wambaugh.

cedents and diversity of rules in deciding what is the proper course of study to lay before their students.1

It is worthy of note that a similar condition exists in the British Empire. Professor Maitland said: "Standing at the beginning of a century and in the first year of Edward VII, thinking of the wide lands which call him king, thinking of our complex and looselyknit British Commonwealth, we cannot look into the future without misgivings. If unity of law - such unity as there has been — disappears, much else that we treasure will disappear also, and (to speak frankly) unity of law is precarious. . . . The so-called common law of one colony will swerve from that of another, and both from that of England. Some colonies will have codes. If English lawyers do not read Australian reports (and they cannot read everything), Australian lawyers will not much longer read English reports."2 Sir Edward Coke in the preface to the Third Part of his Reports estimated the number of volumes of Reports then in existence at fifteen. Lord Campbell says of Bayley, J., who flourished under George the Fourth, that "the whole common law of this realm he carried in his head, and in seven little red books. These accompanied him day and night, in these every reported case was regularly pasted, and in these, by a sort of magic, he could at all times instantaneously turn up the authorities required." The reported decisions of the Supreme Court of the United States and of the highest courts of Pennsylvania and Illinois each exceed two hundred volumes in number. The regular reports of the decisions of the highest court of New York have reached one hundred and ninety volumes, and those of the Supreme Judicial Court of Massachusetts one hundred and ninetythree volumes. No individual, however industrious or gifted, can hope to master more than a small part of this mass of matter, to say nothing of the statutes.

The language used by Sir Henry Maine in 1856, which then might have seemed exaggerated, is now well supported by the facts: "Hence that frightful accumulation of case law which conveys to English jurisprudence a menace of revolution far more serious than any popular murmurs, and which, if it does nothing

1 See the interesting essay of Professor Kales, 21 HARV. L. REV. 92.

2 English Law and the Renaissance, 33-34. Reprinted in 1 Select Essays in AngloAm. Legal History, 168.

8 Pollock, First Book of Jurisp., 294.

4

3 Lives of Chief Justices, 291. See also Foss, 9 Judges of England, 76.

else, is giving to mere tenacity of memory a disgraceful advantage over all the finer qualities of the legal intellect." 1

As is well known, the entire body of our private law, so far as it has been stated, is in the form of case law and statute law. The entire body of our common law and equity, so far as it has been stated, is in the form of cases. In this paper it is proposed to consider the best method of avoiding the dangers arising from the accumulation of case law. Mr. Justice Holmes has assured us that "it is a great mistake to be frightened by the ever increasing number of the reports." He says: "The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view."2 This profound observation may sometime be the basis of a practical reform, but any measure aiming to deprive old precedents of their binding quality would meet with strong and deserved opposition from the legal profession and from legal scholars who have awakened a spirit of historical investigation now at work upon the law, and would have little chance of success. So long as the old cases remain binding as precedents, they will be sought out and cited, and must be carried forward from age to age as a living portion of the law.

Thus far no systematic official or legislative action has been adopted to abate the evil of increasing precedents. The American Bar Association has repeatedly discussed the subject and obtained reports from able committees; but no scheme of relief has been framed.3 Unrestricted publication of reports of adjudged cases seems to be demanded. In some of the states and in the United States Supreme Court a number of cases had not been reported, but the pressure of the bar has been such that those cases are now regularly inserted as memoranda in the reports. This practice was begun in New York in 1871, on the coming in of a new state reporter, Mr. Sickels, who explains the reason for his action.* A similar practice exists in other states. The bar seems to feel instinctively that the strength of the case law comes largely from the fact that judges have given their reasons publicly for their

1 Cambridge Essays, 1856, 1, 10.

2 The Path of the Law, 10 HARV. L. REV. 457, 458.

* See 18 Rep. Am. Bar Ass'n, 28, 343. See also 21 ibid. 16, 437; 26 ibid. 437; 27 ibid. 450; Dill., Laws and Jurisp. of England and America, 289-90.

4 See 46 N. Y. (1 Sickels) III.

563 Cal. (1883); 163 U. S. (1895); 21 Rep. Am. Bar Ass'n, 444, as to unreported "conclusions" in New Jersey.

decisions. Every man may read for himself the grounds upon which his case was decided, and the entire legal profession can see and judge the quality of the work. Without weakening this main pillar of the judicial system and of the common law, much may be done by the highest courts, in the exercise of their discretion, to shorten reports by filing mere resolutions or conclusions in cases requiring no extended reasoning. This would apply to all cases which contribute nothing to the elucidation of the law, such as cases involving merely questions of fact, of the existence of fraud, or merely the construction of a will, or whether, in an action for negligence, there was a case for the jury.

Able and enterprising law publishers, writers, and editors have done much to reduce the case law to manageable bulk, and to bring the new cases promptly to the attention of the profession. The well-known reporter system brings to the lawyers of each state the decisions of the highest courts of neighboring states, and thus helps to counteract the tendency of the accumulation of cases to confine their attention to the decisions of their own courts; but the relief attainable by these various experiments is small and temporary. While new encyclopaedias and digests are going through the press, the current of decision is sweeping on, and before the first edition of a new work is finished, a new edition or a supplement must be begun to include the new cases. Law publishers and annotators are less powerful to stop or to confine the course of the common law than Justinian or Napoleon have proved to stop or to confine the course of the Roman or Civil law. It remains for lawyers and judges to devise and adopt some rational method of dealing with the precedents which will prevent their increasing volume from causing danger to the law.

It may be asserted with confidence that the best minds which have labored upon the common law have stood for its unity. In Norrington v. Wright, an action by an English merchant against a firm of American merchants upon a contract for the sale and delivery of iron rails, Mr. Justice Gray gave the weight of his name to the statement that "a diversity in the law, as administered on the two sides of the Atlantic, concerning the interpretation and effect of commercial contracts of this kind is greatly to be deprecated." 1 If that be so, how much more is diversity in the common law as administered in the different states of the Union to be

1 115 U. S. 188. See Sir Frederick Pollock, The Vocation of the Common Law.

deprecated and avoided, if reasonable means can be found to prevent it.

At the outset it is well to remember the fact that the basis of our case law is the common law and equity system of England. Loyalty to the common law is a sentiment which may well inspire the lawyers and law professors and judges of the United States to unite and to labor for uniformity of law. The common law went forth from England with the colonists and made its way in the new world without any adventitious aid. The colonists were not required to adopt it. They were prohibited from making laws repugnant to the laws of England, but subject to that restriction were at liberty to adopt such laws and customs as were suited to their condition. The following statement of Judge Story is generally accepted as a true statement of the common law: "Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." As late as 1810, Thomas Jefferson, in a letter relating to a vacancy in the federal Supreme Court, in reference to the law of the eastern states, said: "The basis of their law is neither common nor civil; it is an original, if any compound can be so called. Its foundation seems to have been laid in the spirit and principles of Jewish law, incorporated with some words and phrases of common law, and an abundance of notions of their own. This makes an amalgam sui generis; and it is well known that a man first and thoroughly initiated into the principles of one system of law can never become pure and sound in any other."2 Jefferson is cited as a keen observer, well informed in regard to conditions in the colonies. There is truth in what he said, and his views are to some extent corroborated in undoubted sources. In the preface to the Records of the Court of Assistants of the Colony of the Massachusetts Bay, the author says: "In its modes of procedure, the Court seems to have been governed by the general principles of the Common Law which the Colonists had brought with them from England; by the habits of legal practice which they had acquired as Englishmen - some of them by special training; by the limitation in the Charter that no laws should be made repugnant to

1 Van Ness v. Pacard, 2 Pet. (U. S.) 137, 144 (1829).

2 9 Ford, Writings of Jefferson, 285, Letter to Gallatin. See also pp. 282-3, in Letter to Madison, and p. 289, Letter to Judge John Tyler.