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Mechanics of Codification


revised by the Commissioners themselves at their annual conference. In addition to this, the statute, prior to its adoption by the Conference, had been brought to the attention of a num ber of experts generally throughout the country, and had received at least some consideration at their hands. Moreover, all who shared in the preparation of the act enjoyed the very great advantage of having before their eyes the Eng lish Bills of Exchange Act, which offered sug gestions on every important point; afforded a constant opportunity for useful comparisons; whose provisions moreover could be examined in the light of twenty years' experience. In spite of all this, some errors (precisely how serious no one can say as yet) crept into the Negotiable Instruments Law which might have been avoided had the act, prior to its final revision, been subjected for several years to the most searching criticism obtained by giving to it the widest publicity and by soliciting the active co-operation of the considerable number of men whose thorough knowledge of the law of negotiable paper, whether from the stand point of the banker, the practitioner, or the student, had fitted them to render valuable assistance in the preparation of a code on that subject. The two or three additional years con sumed by pursuing this method would have yielded an ample return, and those who would object to the labor, expense, and time required by this method little appreciate the gravity and difficulty of the task of embodying the law in a series of authoritative abstract propositions. Many will regard the shortcomings of the Negotiable Instruments Law as not very serious, but all may well remember that those shortcomings (such as they are) can probably be ascribed to the lack of adequate criticism.3

be received and considered before the codes are finally submitted to the legis lature to be enacted into law. This period should certainly not be less than six months and it would be much wiser to make it at least a year. The time and money expended would be well spent if it resulted in so far perfecting the codes as to enable them to serve their purpose as the settled law for a number of years without material amend ment. If they are adopted without giving the public an opportunity to examine and criticise them, errors may develop necessitating their amendment within the first few months after their promulgation. In connection with the suggestion contained in the last preceding para graph, the following remarks of the dean of the Harvard Law School, and of the lecturer on the law of bills and notes in the University of Pennsylvania, when discussing certain changes which it was thought would have been advisable in the original draft of the Uniform Nego tiable Instruments Law (which has now been enacted by forty of our states and territories), are instructive: — Codification is with us a new art, and it is not surprising, although it is unfortunate, that the Commissioners did not realize, as Con tinental codifiers realize, the extreme impor tance of the widest possible publication of the proposed code, and the necessity of abundant criticism, especially of public criticism, from practising lawyers and judges, professors and writers, merchants and bankers.2 The whole controversy (concerning certain proposed changes in the Negotiable Instru ments Law) should serve as a useful lesson to those who will in future direct the prepara tion of statutes codifying other branches of the law in this country. The Negotiable Instru ments Law was originally drafted with the greatest care by a learned expert. It was then revised by a sub-committee of the Commis sioners on Uniform State Laws, and was then

It is to be noted that the abovequoted remarks of Messrs. Ames and McKeehan refer to a law on one par ticular subject containing less than two hundred sections, while the complete system of codes which this article has in contemplation would embody the entire general law and contain many thousand sections. The "gravity and difficulty" of the task of preparing the codes, and the opportunity for errors to creep in, would therefore be many

"Extract from article on Negotiable Instruments Law, by James Barr Ames. 14 Harvard Law Review 241.

'Extract from article on Negotiable Instruments Law by Charles L. McKeehan, 41 American Law Register, N.S., 437. 499, 561.