VERY lawyer knows the difference

between primary or real authority and that class of so-called authority designated secondary.

Real authority is that officially imposed or accepted by the state as the rule of decision in juridical trials. It may be written, as exemplified in constitutions, treaties, statutes and ordinances; or unwritten, as found in the decisions of the courts, whose sole function it is authoritatively to declare and interpret it. Whether the courts make or merely declare the unwritten law, we need not here pause to consider. When one stops, however, long enough to compare the unwritten law of the present day with that of a century ago, he may well hesitate to assent to the ancient theory that the judges do not make the law, but merely discover and declare it.

Though much might be said as to the condition of our written or statute law, for present purposes we shall eliminate the written law from consideration, and

confine our attention to the lex non scripta or common law.

The main purpose of the present paper is to direct attention to some features of our modern legal literature, if the term be permissible, and to certain hindrances, as they appear to me, to a clear and accurate exposition of legal truth by those to whom, in the economy of our judicial administration, this delicate and important function is confided, namely, the bar and the courts, and to offer a few suggestions for the betterment of existing conditions.

Our postulate is that judicial decisions are the only sources and the sole authoritative evidences of the unwritten law, or, for purposes of our classification, judicial decisions constitute the only real or primary authority. We may say, then, with sufficient accuracy for present purposes, that every principle of the common law has its source and sanction from the adjudicated cases.

But there is a large and constantly in

creasing mass of so-called authority, avouched as evidence of the unwritten law, which we may designate as secondary authority. This class includes all extrajudicial efforts at legal exposition -such as text-books, encyclopedias, editorial annotations, obiter dicta of the courts, digests, etc.

Such has been the marvelous increase in the number of volumes of this secondary authority, even within the memory of those of us for whom life is yet in its prime, and such have been the influences, for good or ill, of this vast and evergrowing bulk of secondary authority, that it may be worth our while to consider something of secondary authority in general, and something of the nature of this flood of extrajudicial legal statement in particular, and its effect upon our jurisprudence. Is the flood a fertilizing one or the reverse?

To the lawyer of even a generation ago, the modern law library would present a bewildering aspect. He would find scores of volumes, with titles as new and strange as the uses they are meant

to serve.

No one denies the value of scientific classification, and of philosophical comment on the decisions of the courts. But, howsoever honestly and intelligently done, no text-book or commentary can ever be other than what we term in the law of evidence second-hand or hearsay testimony. None knows this better than the secondary writer himself. On every page he confesses to be but trying to follow the decisions of the courts-feeling after the law, if haply he may find it. He may criticise a particular decision, or line of decisions, but he offers in lieu of the objectionable rule, not some principle from the depths of his own consciousness, but one assumed to be already judicially established. In short, our sec

ondary writer is a self-appointed, unofficial compiler and interpreter, who undertakes to classify, condense and restate in his own language principles previously enunciated by the judges. Whatever in theory may be the raison d'être of these nonjudicial expositions, their chief purpose and use are to serve as short cuts to the law as found in the decisions. They are to the lawyer what translations of the classics are to the student.

Where such work is that of a sound lawyer, and is skilfully and conscientiously done, the result will be a valuable contribution to the science of jurisprudence. But, unfortunately for legal science, it is rare in these commercial times that the expert has the leisure or the inclination to assume the task of legal authorship. The result is that such work has largely fallen in the hands of those who adopt the vocation of law writing rather to eke out a livelihood than from love of the law.

Blackstone, Kent, Story, Greenleaf, Bishop, Pomeroy, Cooley, Minor and a few others have left an indelible impress upon our jurisprudence. Their works live after them. But in spite of the vastly widened field and the enlarged demand for legal research, these great writers have few successors. One may almost count upon the fingers of one hand, and certainly upon the fingers of two hands, the really philosophical law treatises issued within the last twenty years.

Undoubtedly marked progress has been made in the field of digesting and of classification. The completion of the American Digest, in which, under a scientific classification, effort is made to digest every reported decision of every American court of last resort, marks an era in the history of legal publications. Under its elaborate system of classifica

tion, cross-references and other ingenious mechanical devices, one may in a few moments, and almost without effort, exhaust the primary authorities on any specific point.

Other valuable aids to the searcher after the desired authorities are the wellknown encyclopedias and annotations to selected cases.

But none of these speaks authoritatively. They are but search-books-signboards, as it were, along the road to the real and only exponents of legal truth, namely, the decided cases. And he who is content to rely on these or other similar works as real authority has misconceived the function of such volumes.

Coming back to our line of thoughtthe lack of successors to the great writers of the past—it is not our complaint that secondary writing has languished in quantity. On the contrary, the bulk has enormously expanded, and to the making of such books there is no end. They are being published and exploited as never before.

The large majority of these volumes, however, are but inaccurate and inexhaustive digests. The chief ambition of those who put them forth seems to be to pad footnotes with a multitude of citations, the bulk of which are foreign to the principle asserted, or easily distinguishable, or dependent on local statute, or else are directly contradictory of the

stead of extracting it by brain sweat from original sources.

Nor is the explanation of the situation far to seek. As already suggested, our modern writer is a professional compil

er.

Often he is employed on a salary by publishers who have planned a particular volume or series, and who propose subsequently to exploit it as a commercial venture. Instead of authors seeking for publishers, as in former days, publishers now industriously seek for authors, and employ them on stated monthly or yearly salaries. Writing, as such an author does, for a livelihood, and not for fame or love of learning, his heart is not in his work. He sings, not like the linnet, because there is music in his soul, but for the sake of bread. Who wonders that his rhythm halts and his notes ring false? He and his publishers have discovered that, whether the work be good or bad, if the table of cases be voluminous and the volume be bound in sheep or buckram, lawyers will buy it freely, and courts will lend it a willing ear. Why, then, should our writer spend weary hours in the tedious task of studying his topic from original sources, when he may take his propositions readymade, from the reporter and the digester, and by a mere mechanical process, without the expenditure of intellectual effort, produce his finished product in the shortest possible time?

Not all of our secondary authority is subject to this characterization. But I am assured that the larger part of it is, and that the commercial spirit of the age has entered deeply into the making of law books, until one may almost say that, in the main, the process is mechanical and the spirit commercial.

When we stop to consider how quickly, by the use of the American Digest,