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in the profession we usually use them as digests rather than as text-books. And yet our law libraries are getting so very large that it has been a question with me whether we shall not be compelled in time to adopt the French practice. In France no attention is paid to adjudicated cases. The courts simply apply the rules to the case before them, and they require you to find your authorities in some text-book instead of the adjudicated cases. Now, if books were prepared with such care that they could be used in place of these immense libraries, it strikes me it would be a great boon to the profession. Books prepared with the care with which Mr. Newell has prepared his, would be worthy of the consideration of the court, because it is supposed that in the writing of a textbook the cases are carefully considered and carefully differentiated. A few books prepared in that way, with the care with which Sir William Blackstone prepared his Commentaries, would be, it seems to me, a very great boon to the profession, and the writing of such text-books as could be used in court, ought to be encouraged, in my judgment.
MR. BRADWELL: I was very much struck by the methodical manner in which Senator Newell prepared his book on Libel and Slander. All authors cannot work on the same plan, but Senator Newell's plan is certainly very methodical and calculated to produce the best results. His book, as any gentleman who is familiar with it will bear testimony, is a very accurate and a very carefully prepared work. Now, I have had a little experience with the Senator. The Legal News printed one of his works—that on “Ejectment”—and it is but just to him to say that when he prepares his manuscript he prepares it as he wants it to appear in the book, and if the printer sets it up as he gets it, there will be no changes or corrections to be made in the proof. Now that is not the way most law writers do. Quite a number of them want to edit, so to speak, in the galleys, and they will make more work in the correction of the galley and page proofs than is required to set up their matter the first time. Such men ought not to write law books.
My friend Moulton says to me, “Let us stop here; we have enough books.” Who is to blame for these books? Largely the Supreme Court of the United States They want to write almost a treatise in every case that comes before them; voluminous statements of facts, the briefs of the law
yers, and then the conclusions of the court. That is not the only court in the world that is responsible for so many books; but it is the worst one so far as the length of its opinions is concerned; and a very able court it is,
It is the system--the habit—that is at the bottom of it all. How have they gotten into this habit? Fifty years ago they did not write such long opinions. It is because these judges do not sit down and write out their opinions in the old-fashioned way, with a lead pencil or a pen. They call in the stenographer, and as my friend Gross says, they double up their fist and walk the floor and dictate to the stenographer, and they get everything in their opinion. It slips off so easily that they do not know when they get through. There was not an abler man on the bench than our deceased friend, Judge Bailey. His opinions were good, but they were lengthy, many of them. He wrote them himself--not with a pen or pencil, but with a typewriter. Judicial opinions thus came easily. If we are to have textbooks on libel or slander and other subjects, the author has got to refer to all of these cases, and of course his book must be large. Now, then, I tell you I am in favor of short opinions. The Supreme Court of the United States, the Supreme Court of Illinois and the Appellate Court, in which your Honor has been a distinguished judge for a good many yearsI do not hesitate to say that all of these courts could cut down their opinions two-thirds, and the country would not suffer, and we would get justice more expeditiously than we do now, and we would have fewer reports and fewer law books, I am throwing out something for you to talk about. I do not believe in these long opinions myself. Of all the men I ever knew to write law books, Senator Newell is the most careful and accurate. Most people have no idea of accuracy in writing a book. One author said to me, “I can not tell how it looks until I see it in a galley of type, and then it seems different and I have to change it."
MR. SHERMAN: In the olden time, the clergyman always began his sermon by telling what the text did not mean. This discussion has taken the other form. We have been told how to write a law book. There is one thing that ought not to be done, though it too often is done. I refer to the practice of employing cheap help — the employment of inexperienced and incompetent lawyers to collate a lot of material to which the
name of an eminent member of the bar is appended to sell the book. Sir William Blackstone was content to rest his fame on one book, and the old adage, “Beware of the man of one book," applies to him. Now the text-book writer who does not get five or six books on sale purely for purposes of revenue thinks he is falling behind his brothers at the bar.
The second thing that ought not to be done is the making of slip-shod statements of principles of law and wrong references to support them. That is too frequently the case. I had occasion, not very long since, to examine Desty's Federal Practice, now in its seventh edition, I think. I found this curious state of facts: A principle of law was stated and supported by a reference to a decision of the Circuit Court of the United States by Mr. Justice Story. I examined the case and found a note appended to it stating that the case had been reviewed by the Supreme Court of the United States. I went to the volume cited and found this to be the fact. Mr. Justice Story, after deciding the case, became dissatisfied with his own opinion and himself suggested that it be taken to the Supreme Court of the United States (Mr. Justice Story was at the time sitting on the circuit at nisi prius) for the consideration of the full court. The case was taken up and was reversed, Mr. Justice Story joining with the other Justices to reverse himself. Now, Mr. Desty's Practice states the decision of the lower court instead of the decision of the higher court. This is a piece of carelessness that is simply inexcusable. I found not less than three or four mis-citations on a single page. Now, that is a kind of law-book writing that ought not to be indulged in. I grant, as Senator Newell has said, that it is beyond human care to prevent some error; but mis-citation in the seventh edition of a book seems to me unpardonable.
MR. McNEELY: I had no idea, when I came into the room, of making any remarks on this subject. I did not have the honor of hearing the paper read this forenoon; but because of my attention having recently been called to the rules of the Supreme Court in regard to the filing of briefs-requiring the reply of the appellee to be filed within five days after the filing of the appellant's brief-I have become very much impressed with the necessity of good indexes to law books. I have no doubt that all of these law books are written with great care and ability. I know that to be true of the books
written by our distinguished friend who read the paper, and I know the value attached to them, and their indexes are properly made. But I have found a great many books with indexes sadly deficient. Of course, one having read a volume is supposed to know its contents, and be able to refer to it. But this rule requiring us to present our authorities within five days requires us to do a great deal of work in a short time; and unless our Supreme Court changes its rules, I would suggest that there be more care in the preparation of the indexes to our books, so that in the scramble for authorities in the preparation of our replies to appellants' brief, we shall be able immediately to turn to the proper place.
When I began practicing law in 1857, we did not have as many books as we have now. I think then the reports of the Supreme Court numbered eighteen or nineteen volumes. Freeman's Digest, the greatest digest on earth, I think, was our chief help and support. But since that time everything has been amplified; the boundaries of what we then thought would be the limits have been overflown; and I insist now that the writers of law books, the compilers of digests, should be more liberal in their cross-indexes to authorities, so that we can the more readily find what we are looking for. I found the other day a very elaborate brief filed by an appellant in a case in the Appellate Court, and it required a great research of authorities not contemplated in the case originally, and yet but five days were allowed for writing and printing that brief. None of us criticise the Supreme Court, of course, but if the digests were better made it would be of great assistance to us.
MR. SHERMAN: I desire to make a statement for information. The American Bar Association at its last session, having heard a paper on the subject of digesting and indexing of law books, appointed a committee with instructions to report at the next session a model for the indexing of law reports, and if the work of that committee is such as we may reasonably hope for I think we shall have some valuable suggestions.
PRESIDENT HARKER: The next thing in order will be the report of the Committee on Grievances.
MR. WILLIAMS: There have been no complaints, and consequently there is no report to make.
Hon. James C. Courtney then delivered an address on “The Unwisdom of the Common Law."
[The address will be found in Part II.]
PRESIDENT HARKER: The paper is now open for discussion, gentlemen.
MR. SHERMAN: I suggest that we first listen to all of the papers on to-day's programme, and then, if we have time, we may discuss them.
MR. BRADWELL: I move that we listen to the paper of Judge Hill, and that we have the discussion afterward.
The motion was carried.
PRESIDENT HARKER: The next number on the programme is the report of the Committee on the Power of the General Assembly to Establish Boards of Arbitration as Between Public Service Corporations and their Employes, by Charles H. Aldrich. Does anybody know whether Mr. Aldrich will be here?
MR. SHERMAN: I understand that Mr. 'Aldrich will not be here.
PRESIDENT HARKER: Are there any of the members of the committee present? If none, it will be passed. We will now have an address on "The Patent Law and Its Practice," by Judge Lysander Hill.
[The address will be found in Part II.]
PRESIDENT HARKER: The next thing will be the report of the Committee on the Administration of Criminal Law, by Jesse A. Baldwin.
MR. MATHENY: I have received by mail the report of that committee with the request that it be laid before the Association.
[The report will be found in Part II.]
PRESIDENT HARKER: Without objection the consideration of the committee report will be deferred until to-morrow. We will take up the paper read by Mr. Courtney first, if you desire, and then Judge Hill's paper.