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should a code refine too much. A code should consist of a statement of the general rules of law applicable to general business transactions and exceptions to the rules applicable to the usual exceptional cases. To sum up the collocations of facts which arise in mercantile transactions should be provided for. The code should be based upon judicial decisions, judicially recognized customs and customs recognized by the mercantile community. Where judicial decisions conflict with well recognized, economically and ethically sound customs, the mercantile customs should be embodied in the code in preference to the formal technical rules.

A code should be so framed as not to check the growth of new mercantile customs. While a code should contain general rules and well defined exceptions it should be framed so as to allow new mercantile usages to grow. As said by Sir Frederick Pollock in his lectures on the Expansion of the Common Law, delivered on the occasion of his recent visit to America in 1903: "It is important to observe that the Law Merchant was not incorporated into our systems, as some have contended, as a fixed body of rules incapable of addition. It is still in fact a living body of customs and English decisions have quite lately recognized this fact."

A code must be framed so that there will be uniformity of decision not only in interpreting its provisions but in laying down rules governing transactions not covered by it. The great object in preparing a code is to produce a uniform law throughout the United States by having each state adopt the same code.

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It is universally recognized (except by Judge Alton B. Parker, late candidate for President of the United States,) that there is no common law of the United States. It is true that a Federal Court obtaining jurisdiction by reason of diversity of citizenship'will use its independent judgment in determining what is the law of the state. This was elucidated by Mr. Justice Story, when he said in 1842 in the case of Swift v. Tyson, "The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world." But this very doctrine has resulted in increasing lack of uniformity. On subjects as to which Congress has jurisdiction, such as interstate commerce, there may be unity of law. As to general commercial subjects there cannot be unity of law but there may and ought to be uniformity. The object of framing a code and having it adopted in each state may fail in part unless clauses can be framed which will bring about uniformity not only in

16 Pet., I, 19.

the interpretation and construction of the code itself, but in applying rules of law to cases not covered by the code and applying mercantile usages which may arise after its adoption.

The English Bills of Exchange Act, passed August 18, 1882, provides (section 97) that:

"The rules of common law including the Law Merchant, save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to Bills of Exchange, promissory notes and checks."

The Negotiable Instruments Code prepared by the Conference of Commissioners on Uniform State Laws and now adopted in twenty-five states and territories, provides (section 7) that:

"In any case not provided for in this Act the rules of the Law Merchant shall govern."

The English Sales Code, passed February 30, 1894, provides (section 61) that:

"The rules of common law, including the Law Merchant, save in so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause shall continue to apply to contracts for the sale of goods."

In the draft of a Sale Code prepared by Professor Samuel Williston for the Conference of Commissioners, the same provision (and numbered as section 60) is found.

This section received much discussion at the meeting of the Conference of Commissioners in September of the present year at St. Louis. Professor Williston was instructed to carefully reconsider it.

The Secretary of the American Bar Association, who has in his hands the manuscript of the proceedings of the Conference of Commissioners on Uniform State Laws, held in September at St. Louis, furnishes the information that Professor Williston has redrafted this clause (as section 60) so as to read as follows:

"(1) In any case not provided for in this Act, the rules of the common law, including the Law Merchant, and in particular the rules relating to the law of principal and agent and the effect of other invalidating cause, shall continue to apply to contracts for the sale of goods.

"(2) This Act shall be so interpreted, if possible, to effectuate its general purposes to make uniform the law of those states which enact it. Its interpretation shall not be aided by a consideration of peculiar rules of law prevailing in this state."

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In the English Partnership Act, passed August 14, 1890, it is proIvided (section 46) that:

"The rules of equity and of common law applicable to partnerships shall continue in force except in so far as they are inconsistent with the express provisions of this Act."

Professor James Barr Ames, Dean of the Harvard Law School, is now preparing an American Code governing partnerships. As he is a member of the Conference of Commissioners on Uniform State Laws and attended its last session, his forthcoming code will probably contain valuable suggestions on this subject.

Mr. R. Floyd Clarke of the New York Bar, author of The Science of Law and Law Making, one of the most vigorous opponents of general codification, but who concedes that commercial law should be codified, has made a suggestion that each code should contain the following clause:

"The foregoing rule shall apply except in cases where the special facts of the case presented shall in the opinion of the court produce a result so inequitable as to require the establishment of an exception, and in ascertaining the application of the rule or the exception, the court shall be at liberty to follow out the reason of the rule and the reason for the exception on the lines of cases heretofore decided in common law."

The language contained in the English Bills of Exchange Act, Sale Code, and Partnership Act would not be wise in an American Code because the English Codes are applicable to a country in which there is but one court of last resort. In America, the Supreme Court of each state finally determines the law of that state and in addition, the Federal Courts determine for themselves the law in each state.

The rule laid down by the American Negotiable Instrument Code that "in any case not provided for in this Act, the rules of the Law Merchant shall govern," is best fitted for an American Commercial Code. However, it probably does not go far enough. If the courts of a state are called on to determine what are the rules of the Law Merchant, possibly a conflict will be found. It might therefore be wise to add an additional rule that in determining what are the rules of the Law Merchant, the law laid down by the Supreme Court of the United States shall govern; that if there be no decision of the Supreme Court, the rules laid down by the United States Circuit Court of Appeals shall govern; that in the absence of both, the well recognized customs of merchants, if ethically and economically sound, shall govern even if they are contrary to the rules adopted by the state courts.

Can the law of warehouse receipts be codified? The argument has been made that the law of Warehousemen cannot be codified by reason of the great diversity of the business. While it might be difficult to codify the whole body of the law of Warehousemen, such a task is not impossible. When the law of Negotiable Instruments was codified, no attempt was made to codify the whole law of Banks and Banking, although that task was not insuperable. The experts who have been appointed are not to undertake to codify the whole law of Warehousemen, but to codify the law of warehouse receipts. When the law of Negotiable Instruments was codified it was divided into several parts. The first dealt with all negotiable instruments. Then rules were laid down which were peculiarly applicable to bills of exchange; another part dealt with rules peculiarly applicable to promissory notes; and then rules peculiarly applicable to checks. The same system of classification can be readily followed by the experts in preparing a code governing warehouse receipts. In the first place, rules can be stated applicable to all warehouse receipts. Then separate rules can be given applicable to warehouse receipts of a particular character, or pertaining to a particular kind or class of commodities.

The work assigned the experts is a stupendous one. They have not the example of any previous code upon the same subject. The text books discussing the subject are not of the highest types of scholarship. The statutes are many and diversified. The judicial decisions are numerous and conflicting. There are many customs and usages which have not yet been embodied in judicial decisions. The work should be prepared with the greatest care and thrown open to the public for criticism and discussion. The admonition of Mr. Charles McKeehan of the Philadelphia bar in summing up the controversy over the Negotiable Instruments Code is worthy of consideration. He said:

"Finally, the whole controversy should serve as a useful lesson to those who will in future direct the preparation of statutes codifying other branches of the law in this country. The Negotiable Instruments Law was originally drafted with the greatest care by a learned expert. It was then revised by a sub-committee of the Commissioners on Uniform State Laws, and was then 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 number 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

English Bills of Exchange Act, which offered suggestions on every important point; afforded a constant opportunity for useful comparison, 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 coöperation of the considerable number of men whose thorough knowledge of the law of negotiable paper, whether from the standpoint 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 consumed 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 Instrument Law as not very serious, but all may well remember that these shortcomings (such as they are) can probably be ascribed to the lack of adequate criticism."

The Conference of Commissioners on Uniform State Laws should be provided not only with money with which to pay experts, but also funds with which to have printing done for a wide distribution of the proposed code, thoroughly annotated, with references to the source of each provision and detailed explanations. The code should be sent throughout the country to all warehousemen, and experts on this branch of the law and business. All criticisms should be compiled and reported to the Conference of Commissioners. The code and the criticism should be fully discussed by the Conference and the discussions printed and distributed. At least a year should be taken for their careful reconsideration. This work requires money and the Conference of Commissioners' sources of revenue are limited. Will it not be wise for the American Warehousemen's Association to make provision so that the Conference will not be hampered by lack of funds in its work?

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