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that in speaking of the subject of defamation of candidates for office, Mr. Justice Craig used this language:

"While the qualifications and fitness of a candidate for office may properly be discussed with freedom by the press of the country, we are aware of no case that goes so far as to hold that the private character of a person who is a candidate for office can be destroyed by the publication of a libelous article in a newspaper, notwithstanding the occasion may be attended with that excitement and feeling that not unfrequently enters into an election."

This, it seemed to me, was a fair and intelligent statement of the law, and I extracted it for a section, with the heading: “Qualification and fitness may be discussed, but not private character." Numbering it 16, I put it into the box labeled "Privileged communications."

In Briggs v. Garrett, 111 Pennsylvania State Reports, page 404, I found the law upon this subject laid down by Mr. Justice Paxson, a little differently. I extracted the statement for another section, entitling it "The rule in Pennsylvania,” and put it in the same box. In digesting the material gathered, I was able to formulate a general rule upon this subject, supported by the greater weight of authority, viz.: Defamatory language in relation to candidates for office to come within the rules of privileged communications, must be (1) published without malice and with probable cause, (2) relevant to the fitness of the person for the office for which he is a candidate, and (3) published to the persons interested in the subject, and having authority or power as to the candidate's election or appointment. The law upon this subject was found to vary considerably in different States, but this I explained in appropriate notes.

As a convenient method of doing such work there is an advantage in having the loose material in labeled boxes. It frequently happens that cases are found in the course of the reading involving the same questions. A reference to the appropriate box and a comparison between its contents and the material of the case under consideration is an easy matter, and the question as to whether the material of the case is more appropriate for a section of the text, or a note, or the case merely cited as an authority or omitted entirely, is readily and intelligently determined.

Following out the method above indicated, the book grew day by day, as the material thus gathered from the cases, accumulated in the boxes. As the work progressed, other divisions or subject headings suggested themselves and were added to the list at first made.

After the work of gathering material was completed, the winnowing process, or the work of forming chapters, was begun. One of

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the boxes was selected and the material contained in it spread out upon tables, and arranged so that the sections followed each other in a natural, or perhaps, I should say, philosophical order. The work of supplying sections here and there as the absence of some seemingly important subject suggested, was frequently no easy task. Explaining or endeavoring to reconcile conflicting authorities, was often more difficult still. Arranging notes and citations, however, gave me comparatively but little trouble.

The question of the absolute privilege or privileged communications in legal pleadings gave me considerable trouble. I found it stated in several books treating upon defamation, that "the better and prevailing opinion is that no action for libel can be maintained for matter appearing in pleadings in a court of civil jurisdiction." It seemed to me that parties litigant, should they feel so disposed, ought not to be allowed to gratify their private malice by slanderous expressions in their pleadings and which have no relation to the subject matter of the inquiry. I made an examination of the authorities cited to sustain the rule as stated in the text books and found that while the courts had made use of expressions from which such a rule might be deduced, in nearly all of the cases cited, the question of the absolute privilege was not before them, so I concluded that it was not safe to classify defamatory statements in pleadings under the head of the "absolute privilege," and upon the authority of McLaughlin v. Cawley, 127 Massachusetts Reports, page 316, I classified it under the head of the "qualified privilege," and stated what I called the American rule, as follows:

"Accusations contained in affidavits or other papers in the course of judicial proceedings, are not absolutely protected, and the party making them is liable to an action, if actual malice is averred and proved. The law requires that such statements shall be made in good faith, to courts or tribunals having jurisdiction of the subject, and power to hear and determine the matter of complaint, and not resorted to as a cloak for private malice."

Some few subjects were found where it seemed impossible to state a general rule owing to the conflicting opinions of the courts. Upon the question of allowing witnesses to give their own understanding of defamatory words spoken in their presence, there was found to be much conflict of authority.

Pollock C. B. in Hawkinson v. Bilby, 16 M. and W. 442, laid down the rule that "words must be construed in the sense which the hearers of common and reasonable understanding ascribe to them," and Mr. Justice Lawrence, of our own Supreme Court, in Nelson v. Borchenius, 52 Illinois Reports, page 236, said: "What better guide

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is there in that inquiry than to ascertain how the words were really understood by the bystanders?" It is true "a man must be taken to mean what he utters," but how are we to ascertain this meaning except from the utterances? Upon the theory that circumstances cannot conspire or commit perjury and that witnesses may and sometimes do, I was led to think that the rule laid down by Chief Baron Pollock was not a safe one to follow, and I thought in this class of cases-dangerous at best, and where the witnesses are frequently partisans of the litigants, the temptation to commit perjury great, and the danger of detection extremely remote-the safer rule is to allow the witness to testify to the publishing of the defamatory matter, together with all the surrounding circumstances and existing facts, and, after having done so, let the jury determine from the evidence who and what was meant, and so, I stated the rule, as supported by the greater weight of authority, but stating, of course, in the notes that the law is not completely settled in the United States upon this question.

The most difficult and laborious part of the work which I experienced was in the evolution of the chapter upon privileged communications. In the box containing this material had accumulated a large quantity of manuscript. The room in which I worked was forty feet long and eighteen feet wide. Through the center of it I had constructed for my work three tables of pine boards, each two feet wide and thirty-six feet long. Upon these tables I spread out the material for the chapter upon privileged communications, and when arranged, that is laid out into sections side by side, preliminary to the completion of the work, it made a pile of manuscript more than a hundred feet in length, and in some places nearly an inch in thickness. Up and down along this pile of manuscript I labored patiently day by day, supplying sections here and there as I found gaps in the fence, endeavoring to reconcile conflicting authorities, and arranging notes and citations, for more than sixty days; sometimes wonderfully tired, but never discouraged. It was a great satisfaction to see the material grow slowly but surely into a chapter of one hundred and seventy-one sections, and nearly two hundred pages.

The table of cases cited was made by writing each case upon paper, with the book and page where it could be found, as it appeared cited in the work as it came from the press in page proofs. This was done with a typewriter. When the last page was reached, and all the cases taken, lettered boxes were alphabetically arranged upon a table, and, with a pair of scissors, the cases one by one were cut from the sheets, allowing each to fall into the appropriate box,

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using the first letter of the plaintiff's name as the initial. After this was done, it was an easy matter to arrange the contents of each box for the printer.

The citation of authorities is a very important matter in writing a law boos. To be absolutely correct in this respect seems to be impossible. In finding cases incorrectly cited, the table of cases is always a most useful part of a text-book. For instance, a case is cited in the book which we particularly wish to examine, we find the report and turn to the page named, but the case is not there. This I dare say has been the experience of every member of the bar. It is very exasperating, and is the result of carelessness, sometimes, but not always, on the part of the printer. If the case has been cited more than once in the book, it will be, as a general rule, an easy matter to find it by a reference to the table of cases. The other citations will usually give the correct reference, for it is not probable the same mistake will be made more than once.

An example will serve to illustrate the subject. On page 310 of a well known text book is cited the case of Carroll v. Ridgaway, 3 Maryland Reports, page 328. Taking the report and turning to the page given, we do not find the case. It is not in the report. A reference to the table of cases will show that the case has been cited three times in the book, on pages 310, 632 and 718. Taking the second citation on page 632, we find the reference is to 8 Maryland Reports, page 328, instead of 3, as named in the first citation. Turning to this volume and page given, we find the second citation to be correct. The error has occurred in carelessly preparing the manuscript or in reading the proof. Similar instances occur almost constantly; it seems impossible to prevent them.

The index was made from the proof sheets as they came from the press in the form of pages and as the work of printing the book progressed. The topics were generally, but not always, taken from the headings of the sections, and (using the typewriter) printed in capitals, the particular division of the topic following in smaller type. By this means I was able to have the index completed, ready for the printer, when the last page of proof was sent for correction.

The arrangement of the index was made by the use of lettered boxes, cutting the topics from the printed sheets, allowing them to fall into the appropriate boxes, as indicated by the initial letters, and afterwards arranging the contents of the box into manuscript for the printer, and always keeping in mind that a poor book with a good index is better than a good book with a poor index when we are in a hurry and want to find the law quickly.

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THE UNWISDOM OF THE COMMON LAW.

JAMES C. COURTNEY, OF METROPOLIS.

The wisdom of the Common Law has been praised too much. It has been a theme for the lofty panegyrics of judges and lawyers for ages, and few have ventured to speak of its unwisdom. But praise alone is an uncertain test of wisdom, for there never was a rule of the common law, however wicked and unjust it may have been, but what has received unstinted praise from lawyers and judges. Of the most unjust rules of the common law, as long as they are in force, the defects are unseen, and all the judges and lawyers sound and trumpet their praises; but as soon as they cease to exist their defects quickly appear, and all the lawyers and judges are now most free in their condemnation of them. And then it is true, as paradoxical as it may appear, that wisdom, like the fashions, speedily passeth away. A law, wise in its application to the conditions of one age, may become very unwise in its application to the conditions of another. It is not the purpose of this paper to enter into a lengthy discussion as to what the common law is. Some say that it is a rule of action evolved by the experiences of ages; others tell us it is the unwritten law; some are quite sure it consists of immemorial customs; while others insist with great earnestness that the origin of the common law is as undiscoverable as the head of the Nile. But, whatever it is, or whoever originated it, it exists in a large number of the States of the American Union in all of its pristine glory.

It is true, we have ceased to build castles, wear armor, dress, hunt, and do many other things in the manner whereof our ancesters did; but we retain their laws. Laws, many of which had their origin in the crude customs of ancient times. Great progress has been made every where within the last fifty years. The farmer has cast aside the rude implements of his forefathers, and is abreast of