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ity to cause apprehension and alarm in the minds of thoughtful lawyers and judges. In an address to the bar of Suffolk County, Massachusetts, delivered by Justice Story in 1821 (referred to by Charles Warren in his “History of the American Bar”), he said:
“The mass of the law is, to be sure, accumulating with an almost incredible rapidity.
It is impossible to look without some discouragement upon the ponderous volumes which the next half century will add to the groaning shelves of our jurists."
And thirty years ago Judge Dillon, lecturing before the law school of Yale University, said:
“There inevitably comes a stage in the legal history of every people when its laws become so voluminous and vast that an authoritative and systematic recompilation and restatement of them is necessary, to the end that they may be accessible and of (to use in default of a better, Bentham's uncouth but expressive word) cognoscible bulk, if not to those who are governed by them, at least to those whose business it is to advise concerning them and to those whose duty it is to administer and apply them." ?
This condition had become so alarming in England that in the year 1866 a Royal Commission was appointed, known as the “Digest of Law Commission," composed of the most eminent lawyers and judges of that day, including, among others, Lord Cranworth, Lord Westbury, Lord Cairns, Lord Hatherway
and Lord Selbourne,
The word "digest” was here used in the sense of what we term “restatement”—a methodical compendium of what the law is, not merely a collection of abstracts of decisions arranged
'The Law and Jurisprudence of England and America. John F. Dillon, (1894) p. 269.
under various topics and indexed for reference. In the first report of the Commission, made May 13, 1867, reference was made to the vast number of judicial decisions dispersed through upwards of thirteen hundred volumes of reports of the English courts, comprising upwards of 100,000 cases, exclusive of 150 volumes of Irish Reports, besides yearly accessions; all of which the Commissioners characterized as “a great chaos of judicial legislation.” This mass of decision has been increased enormously since 1867—not so much in England, as in this country, where the courts of forty-nine separate sovereignties are daily adding to the mass.
In the year 1921 alone, 143 volumes of decisions of the courts of the States of the Union were published, and 155 in the year 1922. The American Digest of decisions of American courts (Century Edition), issued by the West Publishing Company, covering the period from 1658 to 1896, consists of fifty portly volumes, each of which contains from 2900 to 3450 page columns, aside from the index. Sixty-three bulky supplemental volumes bring the series down to the close of 1922, each volume containing about 2377 pages. These are merely digests, or brief summaries of decisions, indexed to particular topics.
The National Reporter System for the year 1922 reports decisions rendered by courts in a total of 23,468 cases.8
A little encouragement in the gloom of this increasing cloud of witnesses may be derived from the fact that, while 15272 volumes of State and Federal reports were published in 1900 and 166 in 1901, there were only 148 in 1921 and 156 in 1922.
* Atlantic Reporter, Vols. 114-118, 1,700 cases; Northeastern Reporter,
133-136, 1,609 Northwestern Reporter,
185-190, 2,394 Pacific Reporter,
202-210, 4,133 Southeastern Reporter,
110-114, 2,565 Southern Reporter,
90- 93, 2,301 Southwestern Reporter,
235-244, 4,432 Federal Reporter,
276-284, 2,164 N. Y. Supp. Reporter,
191-196, 1,387 Supreme Court Reporter,
42- 43, 703
The reason for this improvement is not apparent on the surface. Despite the use of thinner paper, there is no marked increase in the number of pages in each of the official volumes of reports printed in recent years. But in the State of New York, particularly in the Appellate Divisions of the Supreme Court, there has been a large increase in the number of cases in which only “memorandum opinions” are written. The number of reported opinions of these Appellate Divisions increased from 3255 in 1901, to 5012 in 1922, but the number of memorandum opinions included in these figures increased in the same period from 1915 in the year 1901 to 4279 in 1922. This increase in the use of memoranda also resulted in decreasing the average length of opinions from 2.7 pages in 1901 to .62 page in 1922, and this fact largely explains the reason for the slightly diminished number of volumes of reported decisions above mentioned. An examination of the reports of the forty-eight States which I have had made, shows that in twenty-one States the number of volumes of reported decisions issued annually has increased, in fourteen it has remained stationary, and in thirteen there has been a diminution. Outside the State of New York, the gain and loss in the number of volumes almost balance each other. Still, even with the reduction above referred to in New York, the State courts alone are adding to the literature of the lawthe authoritative literature of the law-at the rate of upwards of 150 volumes a year.
A needless complexity in the law, is one of the defects especially commented upon by Sir John Salmond in his work on, “Jurisprudence”:
"It is not possible, indeed,” the learned Judge admits, "for any fully developed body of law to be such that he who runs may read it. Being, as it is, the reflection within courts of justice of the complex facts of civilized existence, a very considerable degree of elaboration is inevitable. Nevertheless, the gigantic bulk and bewildering difficulties of our own labyrinthine system are far beyond anything that is called for by the necessities of the case. Partly through the methods of its historical development, and partly through the influence of that love of subtlety which has always been the besetting sin of the legal mind, our law is filled with needless distinctions which add enormously to its bulk and nothing to its value, while they render a great part of it unintelligible to any but the expert.”
The Committee organized in May, 1922, at the instance of the Association of American Law Schools, to consider the possibility of a permanent organization for the improvement of the law, in its report to the meeting held in Washington on February 23, 1923, enumerated as among the particular causes of uncertainty and complexity in the law the following: Lack of agreement on fundamental principles of the com
The first report of the British "Digest of Law Commission,” made May 13, 1867, contained the following recommendation:
“A digest correctly framed and revised from time to time would go far to remedy the evils we have pointed out. It would bring the mass of the law within a moderate compass and it would give order and method to the constituent parts. For a digest (in the sense in which we understand the term to be used in Your Majesty's Commission and in which we use it in this report) would be a condensed summary of the law as it exists, arranged in systematic order, under appropriate titles and subdivisions and divided into distinct articles or propositions which would be supported by references to the sources of law whence they were severally derived, and might be illustrated by cita
tions of the principal instances in which the rules stated had been discussed or applied. Such a digest would in our opinion be highly beneficial.
"Moreover, such a digest would be the best preparation for a code, if at any future time codification of the law should be resolved on."
The term "digest” in this report, as already has been noted, is used in the same sense as the term “restatement” is employed in the proceedings leading up to the organization of the American Law Institute, and in its proceedings. The Royal Commission pointed out that such a work could only be performed by a commission and would involve considerable expenditure, and it recommended that a portion of a digest sufficient in extent to be a fair specimen of the whole, should be prepared in the first instance.
The second report of the Digest of Law Commission, submitted May 11, 1870, set forth that the Commission had, pursuant to the authority granted to it to carry out the recommendations in its first report, selected the three subjects of Bills of Exchange, Mortgages and Easements, and had secured the services of three members of the bar, each of whom was directed to frame a digest of the law on one of those subjects; that these gentlemen had submitted
“ 'Materials of considerable value,' but the Commission thinks it inadvisable to continue this mode of proceeding.
"We have found," runs the report, "that the examination and revision of these materials with that rigorous care and accuracy which would be requisite before we could lay them before Your Majesty as specimens of a digest of law would involve considerable further delay and expense, while on the other hand we have satisfied ourselves that these specimens would have again to be revised, and perhaps recast, when the time arrived for inserting them as portions of a complete and systematic work.”
They say that experiment had served to bring out the inherent difficulties in the undertaking.
“A complete digest cannot be executed without the assistance of the most highly skilled persons whose services