EXHAUSTIVE ANNOTATION.

The highest evolution in annotation, and that which the best publishers are more and more nearly approaching, begins with an absolutely exhaustive collection of the cases bearing upon the subject in hand, and a search for the underlying principle which should be applied to its decision. From the cases collected is prepared an elucidation of the principle involved, so clear that the reader will have no difficulty in determining what the law is, and why, setting out each case fully enough to indicate how the principle was applied in it, and just what it is worth as a precedent, indicating the best-reasoned cases, and those decided by the strongest Judges, so as to enable the lawyer or Judge to examine the fewest cases possible in the preparation of brief or opinion. All cases are so classified, harmonized, and distinguished that the needed one may be found in the shortest time, and if any reason exists why a particular one should or should not rule the one under consideration that reason plainly pointed out. This gives ample scope for the profound study and constructive ability of the text-book writer, and the exhaustive and painstaking care of the case lawyer, and furnishes to the profession a combination of principle and case which is of the highest value. This is modern annotation in the true sense. By way of emphasis, this kind of annotation may be compared with the work of the digester. A digest paragraph is a mere index of the case for which it is prepared, without any thought of its relation to other cases upon the same subject. It is prepared not to shew the principle involved, but the mere accidents of the case as indicated by its facts. The result is that cases based upon the same principle may be so classified as to be found under different titles in the digest. A digest section, therefore, may not only not refer to all the cases which ought to be consulted to know the law with which it purports to deal, but even the cases which it does contain are not prepared for the purpose of shewing the law, but to shew what the decision was on a particular state of facts. One can gain little more comprehensive knowledge of a subject by reading a section of a digest than he could gain from a book by reading its index. Annotation states the law; a digest shews where one can find the law. A digest is a valuable aid in doing one's own work; annotation does the work for him. Annotation of this last type requires experience and ability

for its preparation. Twenty-five years ago the best editors in the country said it was impracticable, and could not be furnished. But when human effort was satisfied with nothing less than its ideal in other lines, progressive editors said, having seen this ideal, we will be satisfied with nothing less. To realize how far they have travelled towards this ideal, it is only necessary to compare annotation produced thirty years ago with the best produced to-day. One buying reports as such should thankfully receive such aids in the form of." annotation" as are furnished him, because he is getting therefrom much help gratuitously, but if he is buying annotation as well as reports he should select that which most nearly approaches the modern ideal above described.

THE COMMON LAW'S DEBT TO ANNOTATIONS.

BY GEORGE F. LONGSDORF, OF THE ST. PAUL Bar.

ED. NOTE.-This is the second of a series of interesting and instructive articles on the evolution of the modern law book and its changing forms and methods to meet the problems of the practitioner.

Against the many acknowledged virtues of the commonlaw system of law deduced from reported precedent, virtues such as adaptability, flexibility, and capacity for self-development and growth, have continually been set the alleged demerits that it was unscientific, that it was crude and formless, that it was too slow in its responses to new conditions. The facts that in all important English speaking communities the common law, with its system of precedents, furnishes the basis of all law; that it has there survived the test of use and experience; that the essential justice in the English and American laws is surpassed by no other system and approached by few other nations, ought to persuade one that the common law is thoroughly systematic and scientific; because an unsystematic and unscientific system could not probably produce the very qualities wherein it excels. If it were the sole product of Judges legislating under the guise of deciding, and if the labours of the Judges were left untouched to serve as the final contribution to the evidences of the unwritten law, chaos, delay, and uncertainty might be expected as the result; but the common law has never been a purely judicial product, however true it may be that the cases have been such. For, to use a common quotation, "the law is in the cases, but the cases are not the law." Therefore to know and state the law requires a post-judicial operation, just as it required the office of lawyers to evoke the decision which contains the law.

MAKERS OF THE COMMON LAW.

Three classes of lawyers, then, have made the common law, the advocates, the Judges, and the writers, and each one of these classes has played a vital and indispensable part. The advocate has presented the question, the Court has decided, and the writer has recorded and expounded the precedent, each limited to the particular occasion and duty. Because of that limitation their correlative tendency has been to keep each other's operations true, and their com

bined skill has solved many problems that no a priori system of laws or codes could have coped with.

SYSTEMATIZING THE CASE LAW.

Now the reason that the system of precedents has not produced an unscientific and chaotic law, and that the law has not been overwhelmed in mere numbers of precedents of widely varying worth and authority, is because it was the special business of the writers to deal with and prevent those particular tendencies. From the beginning they have done that work by devising methods and forms of books suitable to the needs of their times. They have so far done it well, and so long as man can do what man has done," we may expect them to do it well.

66

CLASSES OF WRITERS.

Of the writers there are three prime classes, viz., the reporters, the digesters, and the commentators whose work is now principally done by the annotators. None of these classes is very distinct, though their functions cleave sharply. Ofttimes the work of performing two or more of these functions, such as reporting and annotating, has been done by one writer and published in the same book or set of books. Often, if not usually in the present day, such work is done by a highly organized and co-ordinated staff of writers, for in no other way can the mass of current and past decisions be managed.

The work of the reporter and that of the digester of cases is familiar, and the forms in which their work appears in print are not greatly various. They need no testimonial or any introduction to a profession that has known them. both by name for hundreds of years. But the commentator and his modern progeny, the annotator, is a writer of many degrees and differences. His work and methods have been forced through many developments, and undergone many changes. Some have taken the name of annotator who were not worthy, while there are commentatories and treatises that are really nothing but digests. There are real commentaries nevertheless in this day, such as the Criminal Law Treatises of Wharton, Wigmore's Evidence, and Labatt's Master and Servant, and others equally wellknown. We can pass from all these to the annotators, for

this is frankly a special plea in their behalf. They are now doing what may, perhaps, be as great a work for the common law as ever has been done, and that is the rectification and harmonizing of it into uniformity and systematic accuracy.

THE GREAT COMMENTATORS.

For several centuries in the history of the common law the need for such work was amply supplied by the great commentatorial and institutional works of Coke, Hale, Blackstone, and Kent, and the special treatises contemporary with them. Precedents were not numerous then as compared to now, and the office of the writer was as much to suggest the undeveloped doctrine for which no precedent existed as it was to reconcile and elucidate. Nevertheless there were annotators in those days worthy of the name. Occasionally they combined annotating and reporting, of which Serjeant Williams' notes to Saunders' reports may be noted as an example. His note to Pordage v. Cole, 1 Wms.' Saund. 319, 18 Eng. Rul. Cas. 601, on Mutual Covenants in Contracts, is cited specially scores of times in the later books of reports, and may be said to have established for the law a systematic conception and analysis of that difficult subject. Very much of the work in Coke's Reports is essentially annotation. It does not avow that character by a typographical arrangement separate from the report of the case, as we do now. Indeed it is run into the body of the opinion, and at most is distinguished by the words, "But note reader that," etc., with which Coke was wont to introduce his own observations. Nevetheless it is annotation, and though Coke was sometimes criticized for it, as in the words. of Lord Holt, who accused him of "improving" the reports (see Coggs v. Bernard, 2 Ld. Raym. 909, 5 Eng. Rul. Cas. 247, at 252), yet time has vindicated the work of Coke, and left such criticisms of bookish rather than practical interest. One eminent work of annotation, known well to all the old lawyers, was that in Smith's Leading Cases (vol. 1, 8th ed., p. 199), the forerunner of the great sets of selected cases of this day with their elaborate and exhaustive annotations.

MULTITUDE OF CASES RENDERS ANNOTATION NECESSARY.

It is because of the great augmentation in the number of reported cases, due largely to the multiplication of separate