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new legislation concerning that subject; so, if it is agreeable to all present, we will bring up those two subjects together to-morrow morning for discussion. If there is no objection we will deem that that order of business to-morrow morning is acceptable.
We all know that Mr. Scherer is the editor of the series of our reports known as the Miscellaneous Reports, and he has kindly prepared an address on Law Reporting, to which we will now listen. I have great pleasure in introducing Mr. Scherer. (Applause.)
The purpose of this paper is to show some reason for the great number of law reports and to demonstrate that the result arises not so much from the reporting of unnecessary or diffuse opinions as from the exigencies of our times and those of our legal system. From the time when it was first written, "of making many books there is no end, and much learning is a weariness of the flesh," to the present, there has been a constant complaint against the large number of reports and books issued and published. The ancient sages of the law, from Bacon, Hale, Blackstone and Kent, down to the modern writers, have all complained of the accumulation of reports and the wearisome toil imposed upon the lawyers. But the complaint made indicated the answer to it. For example, Sir Matthew Hale, in his preface to Rolle's Abridgment, said: "Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us that new and unthought-of emergencies often happen, that necessarily require new supplements, abatements or explanations. But the body of the laws that concern the common justice applicable to a great king
dom is vast and comprehensive, consisting of infinite particulars, and must meet with various emergencies, and, therefore, require much time and much experience, as well as much wisdom and prudence, successively to discover defects and inconveniences and to apply apt supplements and remedies for them; and such are the common laws of England, namely, the important productions of much wisdom, time and experience."
Again, Kent, in his Commentaries, says: "Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason; and the diligence of counsel and the labor of judges are constantly required in the study of the reports in order to understand accurately their import and the principles they establish. But to attain a competent knowledge of the common law in all its branches has now become a very serious undertaking, and it requires a steady and lasting perseverance, in consequence of the number of books. which beset and encumber the path of the student. * It is necessary that the student should exercise much discretion and skill in the selection of the books which he is to peruse. To encounter the whole mass of law publications in succession, if practicable, would be a melancholy waste or misapplication of strength and time." It is an unquestioned fact that in these days reports multiply and a great burden is imposed upon the practicing attorney in learning the principles of law as administered in the Courts of to-day. But is that the fault of the Courts or of the reporters? I think not. It seems rather result of the common law under modern conditions.
In considering this question there are two aspects in which it may be regarded.
We may take the view of the man who regards, not the principles of the law, but the number of cases he may find,
either directly in point or analogous; the man who makes no attempt to discover underlying principles, but simply seeks cases; or we may look at it from the view of him. who seeks the underlying principle and uses the decisions of the courts as illustrations. To the first the law seems
like a huge, unwieldy balloon filled with hot air or gas, swaying with every current of the judicial atmosphere, a object of fear and uncertainty. Such a person is apt to regard the accumulation of reports as heaping up fuel to furnish gas to inflate the balloon. He would abolish all reports and reduce all knowledge to the narrow compass of his own limited ability and breadth of vision. If he was a banker or trader he would abolish the stock exchange and our great banking and clearing-house system. He would have the traders gather again at the coffee-house to barter and discuss the gossip of the day. Such an one would abolish the great railway system, the steamship system and have us return to the stage coach and sailing vessels of our ancestors. He forgets that the State of New York alone has grown from a population of 340,000 in 1790 to 7,268,012 in 1900; from an undeveloped colony, settled by people engaged for the most part in agricultural pursuits, to the commercial center of the United States. He forgets the growth of a judicial system rendered necessary by this vast increase in population and wealth, from one Court, presided over by five Judges, to our great judicial system of the present time. If we go further and regard the other professions, the narrowness of this view is more evident. There is not a profession or science or calling outside of the law that does not show the same wondrous changes and development. And what would be said of the mechanic, the scientist, the engineer, the physician or the surgeon who would advocate the destruction of all their tools and instruments and
treatises? It would be a return to the beginning of time. This view is, of necessity, extreme and illogical.
Our common-law system of to-day, to quote again from Sir Matthew Hale, is "not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience and observation of many ages of wise and observing men." It might be said to be a mass of precedents sifted, arranged and condensed through the course of time into certain established rules which we call the principles of law, applied in an endless variety of ways to meet the endless variety of modern instances. It is a system that of necessity is based on precedent. Without the precedent there would be no system; without the precedent there would be nothing to sustain the principle. The principle grows out of the precedent and the precedent must be found somewhere in the legal writings or the reports of the Courts. We have no code of law, nor would a code reduce the number of volumes of our reports, for with the code would come the commentator, and in the expounding of the code and its principles would result the decisions of the Courts. We have this vast, comprehensive system known as the common law, with all its wonderful details and particulars; hence, to know the law and its principles we must have the reports of the decisions of the Courts. Think, if you please, of the wonderful development in modern times of all callings other than the law. Think of the enormous output of publications relating to these different callings. Think, if you please, for a moment, that all human knowledge is simply a matter of precedent; that we cannot look ahead one moment into the future; that all we know is based on our experience, the precedent facts of our existence. Must the legal profession then stand still, and where so great a development in other
callings has brought about a corresponding increase in the literature relating to those callings, is there anything remarkable in finding a corresponding development of the legal system of to-day and a corresponding increase in the literature relating to our legal system? We must have decisions; otherwise, the Courts should be abolished. If we are to have a Court and a decision it must be because that decision is to be helpful in establishing a rule of conduct for our guidance in future cases. Hence the decision must be reported and we must have the reports so that lawyers may know the principles of the law, and the principles of the law must be recorded in some way in order that they may be binding upon Courts called upon to administer the law. When Courts are few, population scanty, wealth small, there will be a corresponding fewness of decisions and reports, and when population and wealth increase, with them must come more laws and more decisions and more reports. It is a result of modern conditions and not a thing within the control of either Courts or reporters. One hundred years ago we had a population of three or four hundred thousand people, no large cities and few villages. To-day we have a population of between seven and eight million, many large cities, villages and numerous small villages. We have a complex and diverse system of town, village, municipal, county and State government and a huge mass of statute law regulating, by general and special laws, all these different divisions of the government. The construction of all these statutes alone creates a vast amount of work, resulting in a great number of decisions and reports, and those reports are necessary and helpful because they interpret the statutes and they are a guide for future interpretion, and not only a guide for future interpretation, but they also point out absurdities and inconveniences in the