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The death of the great leader of law reform in England
- Lord Herschell seems to have stopped the whole movement there, so far as any initiative on the part of the Bar is concerned. On this subject I quote again from "Legislative Methods:
"In England, up to this time, the only effective demand for codification has proceeded from commercial classes and arises in the region of commercial law, where, owing to its cosmopolitan character, the need for the formation of simple and generally intelligible rules, and for the removal of local differences, is more strongly felt than in other branches of the law."
"Professional lawyers, as a rule," he goes on to say, take no interest in the question." And he attributes their indifference largely to "the defective and haphazard system of English legal education."
It should be said, however, in extenuation of the present apathy of the English Bar in respect to the codification of commercial law, that the last quarter of a century in England represents an immense deal of legal work in the development of the judicature acts and rules of procedure, attempts at classifying and rearranging the enormous statutes of the realm and in creating codes for India and for the Criminal Law.
It is not my purpose, at the present time, to enter into an argument in favor of codification in general. It seems to me that in this country, at least, a commercial code is an evident necessity. With fifty courts of final jurisdiction, with fifty Legislatures prolific in changes, the labyrinth of precedents and conflict of authority are getting to be intolerable.
When one looks at the yearly digest of cases in this country alone, largely common-law precedents, each about
as large as an unabridged dictionary, and realizes that to read those decisions through carefully and deliberately, comparing argument with argument and opinion with opinion, it would take a good reader a whole year, it seems, when put beside the law in a codified form, like comparing an old-fashioned sickle clipping a handful of wheat at a time to one of Wood's or McCormick's reapers that level, thrash and put up acres a day.
The objections to codification from the a priori point of view have been so completely answered by Judge Dillon and many others, and especially as to Commercial Law, by the brief practical address of Mr. Chalmers before the American Bar Association last August, that it leaves little further to be said on that point. The latter's re-exposure of the astonishing fallacy of the "strait-jacket" theory, viz., that a short, clear statement of a principle of law, bound down the judges to the rigidity of literalism, more than a multitude of precedents, was a much-needed refutation of a continually repeated error.
The Golden Rule in a single sentence gives the whole social duty of man. Would all the precedents of all the acts of all the saints of all the ages give to mankind a freer, nobler or more liberal rule of action?
In fact, the example of the Georgia code, although a very imperfect one, for the last thirty years, fully answers all the stereotyped objections on this point, and shows the great advantages of codification in certainty, publicity and convenience.
But it is a waste of time to argue as to the advantages of a commercial code, for they are practically admitted on all sides.
A very elaborate and learned treatise, entitled "The Science of Law and Law-Making." published in 1898, by
Mr. R. Floyd Clarke of the New York bar, contains about all that has ever been urged against codification, codifying and codes. Beginning with the discarded assumption that everything should be codified or nothing, and that a code should foretell the future, as well as state the present law, he ends up with the exclamation that codification presuming infinite knowledge is a dream, which with that definition it might well be. But with all its fantastic extravagance, as when he takes the old cosmogonies and legends as codes, and its illogical deductions, as when he assumes that because Austin and Pollock, Holland and Stephen, Clarke and Maine and Amos, and the other great English advocates of the codes, differ in their theories as to how an approximately perfect code should be made or amended, therefore there should be no relief; that because the guides differ as to the best path out of
"That wilderness of single instances"
no attempt should be made to get out of the wilderness, the book is well and thoroughly argued on its own peculiar theory.
Yet even this doughty defender of the Common Law and advocate of illimitable precedents, admits that the codification of certain branches of Commercial Law is not only permissible but useful. For he says, on page 437 of his book:
may assert broadly that there is a scientific warrant for the codification of the laws of man so far as they relate to matters of indifferent conduct."
On page 440 he finds that the English codes on "Bills and Notes" and "Partnership' 'only err in not providing that they should be interpreted as advancing instead of supplanting the Common Law." That inter
pretation is exactly the construction so far given by the courts to those codes.
This admission is all the stronger when one realizes that Mr. Clarke's worship of the Common Law is so great that what most people regard as "chaos tempered by over a hundred bulky encyclopedias and over a hundred United States digests he regards as not only an absolutely scientific system " but "one of astonishing symmetry."
What I desire to present for your consideration at this time and very briefly is, first, the fact that partial codification seems to be the only means of attaining uniformity to any considerable degree; second, that there is no reasonable objection to codifying separate branches of Commercial Law before attempting to codify the whole Commercial Law; third, that this movement, begun by the Conference on Uniform State Laws is worthy of the active and earnest support of the bar associations of the country. For, of course, if the attempt to codify Commercial Law is worth going into at all, it should be done well and thoroughly, with the full support of our profession as well as the mercantile classes of the country.
On the first point, the experience of the Conference of Commissioners on Uniform State Laws is simply this:
Ten years ago we presented and recommended for general adoption a uniform law on weights and measures. About the utility of this act it would seem impossible to raise a question. Surely the bushel ought to be uniform throughout the country. Well, it has passed four States in ten years. Our proposed acts on wills and deeds shared about the same fate. Three years ago the Conference ventured into the troublous region of divorce and not a single State, so far as I know, has passed our modest proposed law on divorce procedure intended to restrain tramp
divorces and to give the defendant an opportunity to be heard in court. On the other hand, as already stated, the Negotiable Instruments Act, in the form of a short code, has been successfully adopted although thirty-six pages in length. As to its permanency one can only say that in six years only one or two trivial changes have been made, occasioned by the effect of revenue stamps on sight drafts and the like.
There seems to be good reason, then, for the conclusion that this partial codification especially in the branches of Commercial Law is the uniformity at present most practicable and attainable.
Secondly, to this method of partial codification of different branches of the Commercial Law or even to the codification of Commercial Law by itself as a separate subject, it is strenuously objected by Professor Sheldon Amos and other learned authors who favor codification that this is not at all the true method of codifying the law. They contend that before anything is done toward formulating the parts, the scheme should be adopted for a universal code, that the whole in its conception must precede the parts and that without this there can be neither harmony, proportion or clearness in law. But the lessons of experience wholly refute this objection. Not only are most of the commercial codes of the two hundred millions of civilized peoples who have such codes entirely distinct and separate from their other civil codes, but this is especially true of the last, greatest, most learned and elaborate code undertaken in modern times, to wit, the great German code just adopted. In fact, in the eighteenth volume of the American Law Review, Mr. Harrison Putnam, of New York, in a learned article on the Codification of Commercial and Maritime Law (1884), claims that this isolation is demanded by experience. And Mr. Wigmore