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tells us, in the American Law Register, that the law of banks and banking matured into a complete banking system of itself in Japan centuries ago, and a system marvelously like that of the modern banks.
In the next place, if the limits of this branch of codification were necessary to be mapped out beforehand and its boundaries definitely traced, this has already been done by Professor Amos and several other theorists, who have elaborately and accurately divided each branch of the law from every other. It might also be observed that if the Commercial Law itself has been evolved by decision and customs without special reference to other branches of the law, there would seem to be no good reason why partial codification should not proceed in the same way.
Undoubtedly, the ideal Platonic method, that the whole precedes or should precede the parts, in thought at least, would have enormous advantages in practice, if civilization developed and proceeded that way. How admirable when a new country is discovered to know just where its great cities are going to be, or the location of its avenues of commerce and trade, but unfortunately the star of empire moves of its own free will, in spite of prophecy and prediction.
Theoretically, if it was a question of preference between a law carefully and deliberately evolved by upright and learned men and the often hasty and sometimes careless work of Legislatures composed largely of laymen, ignorant of the law, one would say that almost any amount of discomfort and laborious searching after precedents, might be put up with in order that wisdom should prevail over ignorance. But the fact is, there is not a single subject within the range of uniform laws or laws likely to be attempted for the sake of uniformity, in which the Legislatures have not already begun to legislate. So that the
question really is not between the codifying experts and the judges, but between the codifying experts and the Legislatures.
One of the chief advantages of a partial codification of Commercial Law in England has been found in the uniformity it creates in the laws of the Mother Country and her many colonies. To undertake to cut out and carve the laws of a particular State in matters of commerce or anything else simply for the sake of uniformity, would be a hopeless task. But the complete codification of a branch of law in itself is an inducement for its adoption especially in the youngest States of the Union which have not an established jurisprudence of their own.
In regard to the last point, concerning the co-operation of the bar associations of the country, it would greatly aid in the adoption of the proposed acts of the Conference of Commissioners if each act, before being proposed to any Legislature, was first favorably passed upon by the Bar Association of the State. This was the course pursued in Pennsylvania, where the Bar Association of the State appointed a special committee to examine into and report on the Negotiable Instruments Act. That committee. having reported favorably, the act, under the prestige of the approval of the Bar Association, passed without difficulty.
Above and beyond all questions of certainty and convenience, strong as those advantages are and irresistible as they ought to be, the chief paramount reason why a commercial code should be adopted in this country is because the business community needs it, demands it, and ought to have it. Business men have a right to have business law put in an intelligible, available, business shape, because they have to obey it and are presumed to know it. This is an old and familiar argument, but none
the less true for all that. No State that ever had a good code has ever repealed it.
For many years the great commercial bodies of England and Scotland have besieged Parliament for a full commercial code with but partial success, as we have seen. Our people need it more than their kin across the sea, by as much as our laws are more conflicting and variant than theirs, our country being divided into so many jurisdictions. It would be a bitter reproach to our profession if the bar as a body failed to do their duty in this matter, failed to do their share in making the law of the land intelligible to the common people.
Our Divine Master pronounced a woe on the lawyers of his time, not because they were lawyers. Far from itMoses was the greatest of lawyers, law-givers and codifiers and the prophets delighted in the law. His censure, with divine penetration to the heart of things, was that the lawyers laid burdens on men grievous to be borne, which they would not themselves touch with one of their fingers, and the weight of that burden, he added, was that while building the tombs of the prophets their fathers had slain, they took away the key of knowledge. Far be it from the lawyers of a Christian civilization, favored more than those of any other country, living among people where every man is a voter and a possible law-maker, to be guilty of taking away or hiding the key of knowledge from such a free people.
The American Bar Association, in 1886, after a thorough debate declared itself in favor of the proposition that "the law itself should be reduced, as far as its substantive principles are settled, to the form of a statute." While this vote was not directly in favor of general codification, the debate and the vote on the amendments to the resolution showed quite a majority in favor of partial
codification. The association has not only approved of the work of its Committee on Uniform State Laws, in attempting to introduce the code on "Bills and Notes," but contributes from its fund for that purpose.
When the Negotiable Instruments Act passed Congress by a unanimous vote, debate ceased when a member informed the House that it had the sanction of the American Bar Association.
But for the very reason that a good code is one of the "best of things," a bad code is one of the worst; and the very wide and careful, as well as minute criticism which every code of law ought to receive before it is proposed or passed as law, the bar associations and law schools of the country are best fitted, next after business men themselves, to give.
I had hoped to suggest the great advantages of an Anglo-American Code on Commercial Law and the admirable theme it would afford for a branch of the great lawyers' congress of 1904 at St. Louis. But the theme is too vast and I have already trespassed too long upon your patience. (Applause.)
We will now listen to a paper on Further Reforms in Procedure," by Edward B. Whitney, of New York.
Edward B. Whitney, of New York:
The subject is
MR. PRESIDENT AND GENTLEMEN. rather dry, but the paper will be very short. I desire to say it is on two or three specific reforms which it seems to me would be advisable in the procedure of this State. The paper was written in consultation with one of the leading jurists of this State, who told me last week one day that on the following morning he
was going to write me a letter of approval of it, with one or two suggestions that will never be made, because on the following morning I heard that he was dead. I refer to Mr. Justice Rumsey, of the Supreme Court of the State. (Applause.)
FURTHER REFORMS IN PROCEDURE.
There are two opposing theories as to the best method of deciding a law-suit.
One theory is that a trial of the issues of fact should be avoided, if possible, and at any rate reduced to a mininium by disposing of questions of law beforehand. This was the theory of the old common-law system of pleading, although the practice had very largely departed from the theory, owing to the number of anomalous exceptions. It was likewise the theory of the old equity procedure, although there also it failed to be fully carried out in practice.
The other theory is to discourage the settlement of any question in the case before the trial, and then to hear the evidence and dispose of all the questions of law and fact at the same time. This system has become the peculiar glory of the procedure of our own State.
I am here to advocate a return to earlier and, I think, better ideas. I am fully aware that my views are opposed to those of many of the strongest men in our profession. I have found our present methods to be entirely satisfactory to that class of able counsel whose attention is devoted to the interests of wealthy clients. To them a question of expense is of comparatively little moment. Indeed, it is generally advantageous to them to make the administration of the law expensive, for, while their clients are rich, their adversaries are generally poor, and likely to abandon litigations which they find to involve the