THE PROBLEMS OF TO-DAY 363 



III. Our third and last general inquiry is: What are the chief 

 lessons and warnings for the future tendencies of our legal history? 

 This does not signify an inquiry into the changes which are likely to 

 be suffered or ought to be made in particular doctrines or rules. 

 That is a question of legislative policy. The question is this : Having 

 in view the mode of development of our law in the past, are the 

 general conditions which have surrounded that development likely 

 to remain, and, if not, in what respect? Will the persons and their 

 methods remain the same, so that we may expect the mould and 

 form to remain? It is seen, for example, that when English law was 

 transferred to American soil all the distinctive mechanics of develop- 

 ment continued. The legislator and the judge, the treatise and the 

 report, the bench and the bar, took practically the same part as 

 before. Only the distinction between constitution and statute 

 was novel, and the abolition of distinction between counsel and 

 attorney. Except, therefore, in the constitutional field, it has 

 resulted that we may to-day discuss contemporary American law in 

 practically the same terms in which Lord Holt and Sir Edward Coke 

 discussed it. Does the future have any promises or omens for us? 

 Two features seem clearly marked. 



(1) An omen is certainly visible in the inordinate multiplication 

 of printed reports of cases. The threat to the future of our law is 

 veritably appalling. We are likely to be overwhelmed by them. The 

 danger is that in trying to remedy the evil, when it bursts upon us, 

 we shall take some sudden and ill-judged measure of defense. Per- 

 haps, like Justinian or Napoleon, we shall commit the futile error of 

 forbidding all rulings of courts to be cited as precedents. Perhaps, 

 like the stag fleeing from his pursuers and blindly thrusting his head 

 into the bush, we shall decline to print a portion of the opinions which 

 we write (as some courts now do) and then feign not to see the private 

 editions which the lawyers are nevertheless using. But in any case 

 we must not abandon the publication of opinions. Abolish reports, 

 said Edmund Burke, arid you abolish the law of England. The essential 

 thing is not this or that remedy, but the clear conscious vision of the 

 momentous danger that is approaching. It will swamp our law; it 

 will turn it into a formless mass. The mere bulk will be such as to 

 transform our whole professional life and legal methods, in some 

 fashion which is as yet unforeseen, but is certain to be undesirable. 

 The most feasible and effective remedy is for the judges to refrain 

 from writing opinions of any sort except in that small proportion 

 of cases which seem to require them. 



(2) The second feature of the outlook is a promise of encouragement, 

 in that the vogue of wholesale codification has been stopped. This 

 has been plain for a decade or more past. With so little of our legal 

 history fully disentangled, and with communities of such diverse 



