Page images
PDF
EPUB

jurisdictions in the United States, that to-day’s problem for the special labours of the annotator has existed. When jurisdictions were few, and precedents not numerous, the practitioner and the Judge were able and had the time to thread the reason and principles of the law through the cases well enough without the help of a modern annotation. There were not multitudes of subtly applied illustrations of general principle to minutely variant facts. Instead of fifty there were a dozen jurisdictions, perhaps, to diverge from uniformity of doctrine and furnish confusion of authority, or, which was just as bad, the appearance of confusion. There were few of the anomalous or exotic doctrines such as the water laws, the mining laws, or the adapted civil-law institutions, which the western and south-western states brought into the body of American law and the over-sea colonies into the body of the English law. Up to that time the practice of a careful lawyer was to read all the decisions of his own state as they were handed down, and it was not a great task to do it.

DIGESTS OR CYCLOPEDIAS.

Almost contemporaneous with the great augmentation of cases, in fact one of its consequences, began the development of the modern digest or cyclopedia. While these were necessary and invaluable contributions to legal literature, and by no means to be disparaged by any comparison, they did have the effect to reveal to the every-day lawyer either “too many cases in point ’’ or else by a distributive analysis that he did not follow they placed analogous and cognate cases in different topics, and he failed to find them. Either condition was unbearable, and, if the lawyer had been left to himself, irremediable. It began to be said that there were too many cases reported, too much authority, and some even wished for another Alexandrian burning of all the law books so that we might start anew. By poetic license the law was pictured as “a codeless myriad of precedents, a wilderness of single instances,” which it never was and is not now. Nothing was wrong but that the common law had been growing and had outgrown the older forms of law books. The very same complaint was made by Justice Buller in 1786 (Birch v. Wright, 1 T. R. 383, 15 Eng. Rul. Cas. 626), when he suggests “wading through all of the old books’ to “find a great collection of cases * in Comyn's Digest. Two years later, in 1788, Tomlin's Repertorium Juridicum (Dublin, 1788), announced in its preface that a “vast accumula. tion of cases,” amounting to 25,000 in forty years, neces. sitated an easy mode of reference to them, to wit, what we would call an index digest. We have 25,000 cases each year to deal with, and do it with skill that Tomlin or Comyn never dreamed of.

GENERALIZATION THE WORK OF THE ANNOTATOR.

The truth is that an evolutionary system of law like ours, wherein we generalize from cases to doctrines, there can not be too many cases. The law is enriched, and not smothered, by its many cases. But the generalizing must be done by careful and accurate method and with adequate expenditure of time, neither of which the lawyer can be expected to bring to such work. And so it has come to pass that, after the work of the great commentators, and in sequence the work of the digesters, has been done, need has developed the modern annotator and his methods. His work relieves the common law from the necessity of a Justinian or a Napoleon to recodify our law; for when a “conflict of authorities " is rightly and patiently examined, and the cases explained in a good annotation, the conflict is often found to have been an appearance, and not a reality, or else the true and the fallacious are sifted so thoroughly that the lawyer as he reads is freed from doubt and vexation.

SELECTION AND WALUE OF CASES.

Such work as this that the annotator does cannot be done in a digest or a text-book, or by any other known method than annotation of some well-chosen case. (See note on Rule in Shelley's Case, 29 L. R. A. (N.S.) 963, for example.) There are thousands of trite and common-place cases fit only to be data from which the law may be deduced, or perhaps only to be illustrations of long settled and wellunderstood rules. They must be reported in some way, if only that time and the general judgment of lawyers may assign to them their true value among the precedents of the law. On such cases annotation is too valuable to be wasted. They present nothing that requires more than the reporter and the digester can give, until the time when the annotator shall need to compare them with all the other trite or common-place cases in the production of some exhaustive and clarifying treatment of an important doctrine.

PURPOSE OF EXTRA AND CRITICAL ANNOTATION.

It is implied in the foregoing statements that the province of the annotator is chiefly within those departments of the law that are conflicting or vexatious, or full of varying minutiae, or novel, requiring the aid of difficult analogies because direct precedents are lacking, but it is not meant to exclude another form of annotation; namely, that which collates the citations of earlier cases and so arranges them as to shew the history and influence of each decision. These annotations, sometimes known as “extra annotations,” trace judicial influences, while the others trace and co-ordinate doctrines and rules. They serve different and equally important purposes, though the critical annotation is of greater utility than the extra annotation, and requires more editorial skill in its preparation. Both classes of annotations, as distinguished from those so-called annotations which are merely collections of references, tend to harmonize and unify the common law of all the many jurisdictions, and in some degree to establish their general statutory law on a common basis of principle and reason. They do this by shewing what the law is, and its reason, in the difficult and obscure parts which neither digest nor text-book professes to do. Being narrow in its subject and intensive in its treatment, an annotation in specially designed to supply a process in the evolution of the law wherein all other forms of law books “by reason of their universality are deficient.” They thus keep the common law of all English-speaking people a living and growing law, which neither breaks down into chaos under sheer numerical weight of precedents, nor is thrust aside for some petrifying code of substantive law; and if uniform laws in all the states shall ever be generally enacted they will have been made possible largely by the years of sifting and settling that the patient labours of the annotators of to-day have given the precedents. Their contribution to the common law is in keeping it true and uniform in principle, in freeing it from multifariousness of illustration, in adapting it by analogies to new conditions. That common law, which we believe to be the most excellent of systems, has been kept for us by the writers in the law. Each class of writers has had its part. None has done more fhan the annotators, and by no other means than annotation could their part have been done.

[graphic]

LAWYERS’ MERRIMENTS.1

Three generations of readers have passed away since the brothers Roscoe, in 1825, published their three little volumes entitled “Westminster Hall, or, Professional Relics and Anecdotes of the Bar, Bench and Woolsack.” At that time they felt sure that the general public would regard with surprise any such attempt “to glean a few grains of amusement” from a subject so dreary as Law. But in the intervening decades book after book has been compiled in imitation of their attempt; and nowadays the publication of any new collection of legal oddities is more likely to provoke impatience than surprise. No doubt the store of such “grains of amusement’ is ever on the increase. There are curious points, of general interest, that may be found in the Reports and Statutes themselves. And beyond these there are also the quips and cranks, the flights of rhetoric or of ingenious logic, the strange forensic puzzles or incidents, that escape all formal record, yet may be found incidentally chronicled in the newspapers of the moment or even in the biographies of eminent lawyers. But, happily, Dr. Murray has not devoted his pages to the superfluous task of telling over again the hackneyed tales of the witticisms of witnesses and barristers and Judges, the quaint customs of manors, and the unintentional absurdities that have slipped into statutory enactments. He has undertaken, and has well discharged, a much more novel task: that of enumerating the many ways in which lawyers, refusing to sink the shop when office hours were over, have made Law a means of amusement for their leisure. Indeed, his enumeration of these ways is so exhaustive, and therefore so rapid, that the reader, impatient for a little of that merriment which the title-page has promised him, feels inclined to cry out for less bibliography and more quotations. The French have, as Dr. Murray reminds us (p. 170), a proverb, “Bon avocat, mauvais, voisin.” Nevertheless the successful lawyer, even should he prove him. self this litigious next-door neighbour, will usually be found an entertaining diner-out. So we had hoped to see in this book many fruits of such men's humour. But they have been withheld. And, probably, wisely. For the fashions of humour, like all other fashions, change and fade. Indeed, this very volume abounds in painful proof that what furnished vast merriment for the lawyers of one generation is more likely to provoke a yawn than a smile from their successors of to-day. So we may well be content to accept it, not as a jest-book, but as, what is far more valuable, a permanently useful book of reference for inquirers into a singular and little-known field of literature. The author has done his work so carefully and so well that probably more than one generation of readers will use it and be grateful to him.

* By David Murray, LL.D. Glasgow : James MacLehose & Sons. 1912. Svo. 302 pp. (7s. 6d. net.)

At the present time, when the exclusion of women from the legal profession has been brought to an end in some countries, and is being challenged in our own Courts by an action against the Law Society, a special interest attaches to the chapter devoted to the topic of Sex. In it Dr. Murray chronicles the achievements of at least three ladies—Bitizia Gozzadini, Novella Andreae, and a daughter of Accursius— who taught successfully in the great law-school of Bologna in its palmiest days; and of some jurists' wives who gave great help to their husbands in solving difficult questions of law (pp. 237-48). And the zeal of female aspirants to legal honours may well be intensified by reading all that our author has to tell us about the dignity which in mediaeval times surrounded a Doctor of Laws. He might wear such golden rings and chains as were forbidden to the lesser of the nobility; might, in his coat of arms, display a helmet with the vizier raised; might carry weapons when other persons were forbidden to wear them. If convicted of crime, he was to suffer only a mitigated punishment; and, finally, if a person were killed in the presence of a doctor and some other man, this other man was presumed to be the guilty slayer (pp. 24955). But the universities which endowed a doctor with all these privileges had need to be cautious as to whom they chose. For it was an arguable question whether any Faculty that had admitted to the degree an incompetent man might not be sued for damages by unsuccessful clients whose cases he had bungled. And the doctor himself had his disadvantages; for he must not stand in a crowd to watch any sports, as this would be an unseemly loss of dignity.

One of Dr. Murray's most interesting chapters is that (pp.82-94) in which he gives an account of the various efforts that have been made to put the reports of judicial decisions into a metrical form. The earliest English effort of this kind dates back to 1742, when a versified edition of

« PreviousContinue »