information, and the rules of civil life were committed to parchment, exposed to public view, and became generally accessible to society at large. A later English view was that the system of the common law was comprised within the decisions of the courts and the Statutes at large-hence the statutes in force in England before the Declaration of Independence have ever formed a part of the "common law" of this country.

It is a truth so well and universally known that it is trite to call attention to the fact that the system of common law in England furnished the foundation of, if not the model for, the American states carved out of the pre-revolution Provinces, after the successful ending of the War of the Revo lution, and became the "basis of decision" for the courts in all causes, except in those instances in which that system of law was not regarded as applicable to local conditions, even in the "code states"-outside of the state of Louisiana; in which state that marvel of human production, the Livingston Codes, are founded upon the Roman Civil Law; incorporate that system of laws and judicature found in Justinian's Corpus Juris, and which it rivals in clearness, directness, force, lucidity of expression, comprehensivenss and brevity of language.

Something more than a generation ago a professor in an eastern law school, conceived the idea and promulgated the theory that "all law is found in decisions of courts, and all decisions of courts are law." This conception has borne fruits for good or for ill-owing to in what light you regard the "case-law system"-which are potent in their results. It seems to have revolutionized conceptions as to the law and the method of "practicing

law." It certainly has revolutionized the method of teaching the law to young men preparing for the Bar; and it seems to have revolutionized, also, the conceptions as to the forms and matter, and the manner of writing legal works-text-books, treatises, and "glosses." And there is no doubt in the minds of those who have given to the matter thorough and enlightened consideration, that to the latter is due in a large measure at least, the unmistakable decadence in profound and dependable law-books.

I hold no brief for or against the case-law system; but I cannot refrain from pointing out that Professor Langdell erred fundamentally as to three cardinal facts: 1. "The law of the land" is not found in the decisions of courts. In this error Professor Langdell is in the "good company" of the later expositors of the common-law system. I cannot at this time enter upon the argument by which this fact is conclusively shown by demonstrating that the Civil Law enters largely into the make-up of the earliest known phase of the common-law system. Affiliation with that system through Corpus Juris and with the later writings of Gaius, has been established by niodern research. To be convinced of this fact, a "doubting Thomas" has but to study attentatively and intelligently Bracton and Fleta, the former of whom, regarded as the earliest writer of any consequence upon the "common-law system" contented himself with setting down a few local customs and usages, filling the bulk of his book with an incorporation therein of partial translations of all of the body of Corpus Juris which he regarded as applicable to the local and insular situation and conditions of Britain at

that time, drawing his illustrations of the rules from common law instead of civil law cases. This matter was first clearly pointed out in a lecture delivered in Cambridge University, in 1856, by Henry Summer Maine, and later published in Cambridge Essays. This position has been sustained by the researches of the later historians. The foot-prints of the civil law are found scattered all through the decisions of the courts in our "common law states" and elsewhere for that matter, in the Latin expressions and Latin maxims used to illustrate and enforce the arguments of the judges seeking to justify the conclusions arrived at and decisions made.

2. A second fundamental error consists in assuming that "all law" is embraced within decisions of courts already made-and also in assuming that all decisions of courts is "law." The common-law system, in theory and in fact, is a large body of organized and formulated fundamental principles, by applying which all causes that can arise out of the complicated and complex human affairs and relations are to be, or should be, determined. These fundamental principles of universal application do not reside in, but are simply applied by, court decisions. Every careful student of substantive and administrative law knows that "cases of first impression" are constantly arising, which are ruled by and decided under this great body of fundamental principles.

3. The third fundamental error is of dual character. In the first place, the court decisions are not "the law of the land" in any proper sense of the phrase, "law of the land;" they are simply instances of the appli cation of the law of the land to given conditions and a particular set of circumstances and facts. And in the second place, the various statutes, state and federal are of "the law of the land" in a most emphatic sense of that term.

One of the effects of this erroneous assumption and proclamation of the theory of Prof. Langdell has been to lead all our law schools into the error of adopting the "case system" of intruction to law students, to the utter abandonment of the systematic teaching of the fundamental principles upon which all court decisions are based, and which fundamental principles are now and ever have been the law of the land, and are the only thing that is the law of the land, aside from the ephemoral statutes of the legis lature which prevail from time to time. The space at my disposal for this article will not permit me to point out in detail why this method of teaching the law to students is harmful to students and fails in the accomplishment of the results sought to be attained, and does not make of the students either learned lawyers or persons who are equipped to practice law intelligently and successfully, from the standpoint of sound fundamental principles; they acquire an acquaintance with cases merely, not a familiarity with the ground-work and fundamental principles underlying the whole structure of organized society.

Another effect of the case-system theory of the law is met with in the law-book world in which case-taught editors, and; editors catering to the whims of case-taught lawyers under their partial and erroneous conceptions of the law, are seeking to supply the popular demand for "cases"

merely; have ceased to write a legal treatise in any proper sense of that term, any more than J. Arthur Thomson's "Outlines of Science" constitutes a scientific treatise upon any one of the sciences respecting which he gives smattering information. These case-system editors fill their volumes with "cases," mere "instances" of an application of a fundamental principle, or of an exception thereto, strung along like the beads on a rosary, and nowhere giving a coherent statement of the fundamental principles themsclves. Kent, Story, Parsons, Walker, Thompson, Jones, Schouler, and other writers of the "classic" text-books of the law, wrote a reasoned text in which fundamental principles relating to and governing the particular branch of the law selected for treatment are clearly and logically set forth, and all the exceptions to the general rules pointed out. The text was enforced by references to leading and well-reasoned decisions. They did not stuff and "pad" their books with a reference to an array of "me too" cases which are unimportant and of no authority, although they may have applied or followed the rule, or the exception; in which no learned and enlightening or even helpful discussions are found. Many of our so-called "annotated cases" are mere "glosses" upon some legal point, not an intelligent and informing treatment of the point-a mere gathering of independent cases without any attempt at correlation or distinction further than in those cases in which there is a diversity of opinion and doctrine in the decided cases as there too frequently is, and upon too many points of the law upon which there should be unity and harmony in the decisions a labeling of the cases "for" or "against" a given doctrine or contention, without enlightening discussion or appraisement of the cases gathered as to their merits or demerits, or any attempt made to show wherein or in which line of decisions the error lies, and how it crept in. In other words, they are mere case-system annotations catering to those among the lawyers who are mere case-chasers and not principle-hunters. I had occasion recently to examine an "annotated" case dealing with the subject of nuisance. A farmer had brought suit for damages against a manufacturer of farm fertilizers, who had stored on his premises a large quantity of green bones to be used in manufacturing the fertilizers. The bones-as bones will-had induced the congregation and furnished a hibernicle for rats on the manufacturer's premises; the rats had-as rats are wont to do-made forays on the farmer's crops. The cause was goverened by the fundamental elementary principle relating to animals ferae naturae, as first laid down in 1597, in Boulston's Case, 5 Coke 104b. The scribe assigned to annotate the case simply says: "An extensive search has failed to disclose any other than the reported case upon the question whether the attraction of rats to premises is an actionable nuisance." The impulse was strong to ejaculate "Rats!" Had the scribe assigned to annotate the case possessed a remote filiation with the general principle governing the cause, he would have known that the result would have been the same had the offending miscreants been meek bonyrabbits debouching from a warren; or by any other animal classed as ferae raturae. Being simply a case-system lawyer-and a "red-cow-case" lawyer

at that he had to have a case in which the offending objects were "rats," else the case was not "in pont." And yet a man of this caliber is set to annotate cases in a pretentious series for the guidance of busy lawyers!

The laws of England, in their progress from the earliest time to the present time, may very appropriately be likened to a royal road or highway for travelers, which is divided into distinct stages and provided with as many resting-places. At each resting-place during the course of the journey, a review is taken of the way that has been passed over to that point. In the Highway of the Law, each of these resting-places is marked by a notable law-book or legal author. The first resting-place known to us is commemorated by Bracton's De Legibus Angliae; the second by Lord Coke's commentary upon Littleton and his Institutes; the third by Matthew Bacon's Abridgment; and the fourth by Blackstone's Commentaries. Doubtless there were other legal authors before Bracton's time and other notable early law-books, a knowledge of whom and which has not come down to us and to our time. King Alfred the Great, in the preface to his Code of Laws, says that they were compiled from the laws of Ina, Offa, and Aethelbert. Into this work of King Alfred, or rather preceding his work, the clergy interpolated the twentieth, twenty-first, twenty-second, twenty-third and twenty-fourth chapters of the book of Exodus, thus awkardly enough placing Alfred's preface, which should be the first thing met with in his Code of Laws, following the first thirty-eight clauses! This interpolation is the more glaring in that it contains "laws" expressly contradicted or annulled by those of Alfred. This pious fraud was first pointed out by Howard in his Contumes Anglo Normandes. The pious judges of England have never attempted to refute the charge of the fraud, but the learned historians,— and especially Charles Knight,—continue to inculcate the false idea that the fraudulent interpolation was the genuine work of the great ruler who first united under one scepter all of Albion!

So far as our knowledge is concerned, Alfred's code of laws of the Heptarchy, can properly be regarded as the birth of that system of laws known as the Common Law of England, although it was later, and before we have any reliable account of that code in its workings, greatly amplified and improved. Certain it is that Alfred has been styled "Magnus Juris Angelicant Conditor;" and his code of laws is known to history as Dom-Dec or Doom-Book. That which was made afterwards, under Edward the Confessor, we are told was but a restoration of Alfred's Code, with some interesting alterations; and it was this code which the English so often, under the reign of the Norman princes, petitioned to have restored to them. All records prior to Magna Charta having been early lost, all our means of exact information has been lost also.

(To be Continued.)

BOOK REVIEWS

By Sidney L. Phipson.
Pages 673.

BEST ON EVIDENCE

Published by Sweet & Maxwell, London, England.

This book has been very properly termed the best English work on evidence in England. It is of great value to American lawyers as affording comparisons in order to find the real reasons why and to determine the authority for certain statements of law. As such Best on Evidence is certain to prove a corrective for hasty conclusions.

This sixth edition brings the cases and statutes down to February 1921, and the citation of cases has been increased by nearly eight hundred ex amples. The facts of the most important have been abstracted, and the text has been modified to meet recent developments of the law. The introduction, not the least significant part of any book, has been expanded to double the length in the preceding edition.

NATIONAL BASIS OF LEGAL INSTITUTIONS

Of the Modern Legal Philosophy Series by various authors with an editorial preface by John H. Wigmore, Professor of Law in Northwestern University, and an introduction by Oliver Wendell Holmes, Justice of the Supreme Court of the United States. Published and for sale by The Macmillian Company, New York City.

The object of this book is to set forth the principal reasons on which cur fundamental and immemorial legal institutions have been rationally supported or assailed. The passages here compiled represent systems of thought, that is, the rational basis of fundamental legal institutions as expounded in connection with some general scheme of life-not merely casual comments on some specific institution-and the selections range through all schools of thought, whether conservative or radical.

There are introductory chapters on liberty and individualism by Herbert Spencer and John Stuart Mill, essays on competition from different points of view by Lovejoy, Sharp and Park, discussions of contracts, property, socialism, succession, the family, crime and punishment by writers of such varied gifts as Ely, Pound, H. G. Wells, Veblen, Tawney, Hobhouse, John Fiske and Henry Sidgwick.

It is a valuable work and cannot be too highly commended.

WIGMORE ON EVIDENCE

A Treatise on the Anglo-American System of Evidence in Trial at Comnion Law, including the Statutes and Judicial Decisions of all jurisdictions of the United States and Canada. By John Henry Wigmore. Second Edition. 5 volumes. Boston: Little, Brown & Co., 1923. Vol. I, pp. LXXXVI, 1140; Vol. II, XXXVI, 1069; Vol. III, XXXIV, 1002; Vol. IV, XXII, 972; Vol. V. XXX, 1141.

We, of the legal profession in America, have been favored with many legal treatises, by master minds, showing great breadth of treatment, scholarly detail and great erudition, but here is the masterpiece of all textbooks. It seems the product of an almost superhuman mind in all its details of research, exposition and deduction. It is the last word on the subject. No mere verbal description can do this treatise justice; an examination only can fully impress one of its greatness.

The analysis of the entire subject is logically arranged and is carried out in fine detail. The main analysis is of four books: Book I. Admissibilty of Evidence; Book II, By Whom Evidence is Presented; Book III. To Whom Evidence is Presented; Book IV. Propositions Needing No Evidence.

One feature which looms up large is the author's treatment of the