can be procured. The success of the work will depend on their efficiency. They must give to the undertaking the whole of their time and energy. And it is obvious that the services of such persons cannot be obtained without the offer of permanent employment and high remuneration."

The Commission therefore recommended the appointment of a body of three such persons, charged with the duty of executing a digest as a whole, provided with every assistance and acting under the control of a committee of the Privy Council or otherwise. Sir James S. Willes, who upon the death of Lord Cranford had been substituted as a member of the Commission, dissented from the report, because, while he thought a first-rate modern digest of the English law desirable as a whole for professional use, he considered that, after all, it would be only a makeshift for a code or series of codes, which he thought preferable to a digest.

One of the remedies for the complexity and uncertainty of the common law, which has been recommended by members of a school whose principal exponent in England was Jeremy Bentham, and in the United States, David Dudley Field, is the codification of the common law. Four of the States of the American Union, Georgia, California, North and South Dakota, have followed this course by enacting codes of substantive law. But in none of these States has the legislature attempted to abolish all law but the statute law. How far the law has been clarified by reducing it to these statutory forms is a matter of controversy.

After the failure of the "Digest of Law Commission" to accomplish any practical result, professional efforts in England were directed, first, to improving the system of law reporting, and second, to a careful systematic revision of statutes on different subjects, which has gone far in the direction of completely codifying the common law of England. But the inability of this Commission to accomplish the purposes of its original appointment, inspired Lord Halsbury to the preparation and publication of his series of twenty-nine volumes of "The Laws of England." In the introduction to this work, Lord Halsbury says:

"The alteration of existing law and the process of merely stating what the law is, are two very different functions, and the confusion between the two has marred many an effort to get a clear and intelligible code. Mr. Gladstone once said in the House of Commons that you should first get a comprehensive account of what the law is before you commence amending it; and a great many law reformers have failed because they have not observed the necessity of this preliminary inquiry."

Referring to the failure of the work of the Digest of Law Commission, he says:

"It has occurred to some minds that an attempt might be made by private enterprise to carry out in its main outlines the scheme which was recommended in the report of the Commission appointed in 1866, and such an attempt has been made in this work. Different treatises upon various divisions of the law, and by different authors, have been brought together, so that a selected body of writers may expound their several topics, and at the same time refer to such authoritative decisions and enactments as support the propositions which they lay down."

The result, as Lord Halsbury pointed out, was not a mere encyclopædia, not a mere collection of cases, but a number of treatises composed by learned lawyers, supported by the decisions of great judges.

Following this work, there also has been published in England, under the editorship of Mr. Edward Jenks, "A Digest of the English Civil Law," divided into five volumes, of which Volumes 1 and 2 were published in 1905, Volume 3 in 1911, and Volumes 4 and 5 in 1916.

But in general, the tendency in England has been mainly in the direction of reducing the law to statutory form. This is said by Sir John Salmond to be the tendency of modern times and one which he believes ultimately will prevail; yet he points out:

"The process is one of exceeding difficulty owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it and pre

mature codification is worse than none at all. Unenacted law is the principal and enacted law is merely accessory. The activity of the legislature is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law." 11

Judge Dillon, lecturing before the Law School of Yale University in 1892, said:

"One related question of great practical interest and moment still remains to a large extent undecided, and that is as to the wisdom of undertaking a systematic restatement of the body of our statutory and case law. This subject is actively engaging the best minds of the profession in both countries." 12

And speaking of this work of restatement, he said:

"It is not possible to doubt that the bulk of the existing law can be greatly, and, if the work be properly done, advantageously reduced. This is in fact demonstrable both by reason and examples. Cases do not constitute the law, but are illustrations and practical applications of its general principles. These principles are comparatively few. Lord Mansfield went to the pith and marrow of the business when he said: "The law does not consist of particular cases, but of general principles which are illustrated and explained by these cases.' Rex v. Bembridge, 3 Doug. 332. It is therefore practicable to extract these principles and state them in authoritative form. This is undoubtedly, as Lord Hale says, 'a very choice and tender business' and must be performed deliberately and by the most competent hands. Mr. Justice Stephen's digest of the law of evidence is an example, among others, of what may be done in this direction. Mr. Taylor's treatise on evidence contains, says Mr. Justice Stephen, 1797 pages, refers to 9000 judicial decisions and cites nearly 750 Acts of Parliament. Greenleaf's work is quite as extensive. Now Mr. Justice Stephen extracts the essential principles of the law of evidence, states these with precision, illustrates them by example, ar

"Jurisprudence, Sec. 53.

12 Law and Jurisprudence of England and America, Lecture XIII.

ranges them in a systematic form in 143 articles, all of which, with annotations and references to the American cases by Professor Chase, is brought within the moderate compass of 245 pages."

The report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law, enumerated certain factors promoting greater certainty and simplicity in the law, among which were:

(1) The influence of the decisions of one State on the common law of other States;

(2) The enactment of uniform State laws;

(3) The increasing exercise of legislative power by the Federal Government;

(4) The application of uniform laws by the Federal Government;

(5) The national law schools.

The Committee reached the conclusion that one of the most potent factors in the removal of the uncertainty of the law, would be the formulation of clear and accurate statements, in simplified form, of the common law on various topics, prepared by trained students of the law, submitted to the criticism of the bar, and published with the authority of the Institute and the prestige of the great body of lawyers and judges of the country. Specifically, they pointed out that the work thus performed was not intended to be submitted to the legislature for enactment into law. It is designed to appeal to the intelligence of bench and bar. The Committee expressed the belief that, if the work be done as designed, the restatement would be accepted by the profession as evidence of what the law is at the date of its publication, without the necessity of ransacking the thousands of precedents which will have been examined, analyzed and weighed by the authors of the respective treatises.

Examples are not lacking as to the influence upon the law of the writings of eminent students and text-writers. In England, Coke and Blackstone stand out as more essential lawgivers than many Parliaments whose statutes have attempted to

end legal debate. Professor Pound has very clearly described the great services of Kent and Story in restating and simplifying the common law in America. Referring to Story, whose contribution he considers the greater, he says:

"What Story, the judge, failed in, Story, the textwriter, accomplished triumphantly. For more than anything else the books of our great 19th Century text-writers saved the common law. Here were guides for judge and practitioner, well written, learned, well ordered, and, as things went then, well reasoned."

And after enumerating Judge Story's works, he says:

"In quantity, in timeliness, and in its relation to the law that went before, and came after, this body of legal writing is in many ways comparable to that of Coke. In each case the judge-made law of the past was restated and was made conveniently and, as it were, authoritatively available for the future."

This work, he adds, must be counted as one of the controlling factors in the shaping of American law. 13

Aside from the writings of James Kent and Joseph Story, in more modern times, we have had the "Treatise on the Law of Private Corporations," by Victor Morawetz, which almost immediately upon its publication was accepted as authoritative by the highest courts in the land. Still more recently, such books as "A Digest of the Laws of England with Reference to the Conflict of Laws," by A. V. Dicey; "The Principles of the Law of Contracts," by Sir Frederick Pollock, and in America, Williston's "Law of Contracts," have been published, which, in effect are restatements of the common law of those subjects respectively.

Senator Root in presenting the report of the Committee to the Washington meeting on February 23d last, described the proposed undertaking of the American Law Institute in the following language:

"Judge Story in the Making of American Law. By Roscoe Pound. 48 AMERICAN LAW REV. 676.