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in Montana as in Florida. The evils of the present diversity on these and many other subjects that could be made uniform are many and serious, and are universally recognized and admitted. The labor entailed upon the profession and the judiciary in being advised of the separate and diverse enactments and decisions of the several States on these subjects is enormous. The uncertainty to the citizen of the laws themselves tends to inability of obedience, and often serious and unnecessary loss. -- If,” as my Lord Coke says, “the bugle give an uncertain note, how can the soldier obey ?” “Certainty,” he adds, “is the prime
“ dignity of the law."
The report of the committee of the American Bar Association, 1891, summarizes these evils. Says this admirable report:
" The annoyance arising from variant and conflicting laws seems common to all the States, viz.: Perplexity, uncertainty, confusion, with consequent waste, a tendency to hinder freedom of trade, and to occasion unnecessary insecurity in contracts, resulting in needless litigation and miscarriage of justice. As the answer of Mr. Colby, of New Hampshire, tersely puts it : • The continuing diversity of the laws of the various States and territories upou the subjects in question, causes constant and gross waste of capital by suitors, and of skilled labor by bench and bar; occasions long delays, which are substantial denials of justice; facilitates various admitted immoralities, and issues in uncertainty of law, which Burke aptly describes as “the essence of tyranny.'
But we need not enlarge upon the existence of the evil or the necessity of correction. These have been recognized by the profession, by the statesmen and the publicists and by the people of the last half century. The secular press and the law periodicals have been full of the subject. The State and National Bar Associations have discussed the subject, and passed resolutions and appointed committees, and appealed to State Legislatures, and yet, substantially, no progress has been accomplished. The remarkable fact remains that the profession and the public have been suffering for years from evils that are recognized and admitted, and against which all desire remedy, and concede that there is a remedy, and yet have not applied it. So great have been these evils, that it has been seriously debated if the Congress of the United States should not pass enactments commanding uniformity of laws, where possible under the Constitution. This is at once impracticable, because the uniformity desired is in a majority of subjects over which the States have exclusive jurisdiction.
The purpose of this paper is to suggest a remedy not new to the writer, but deliberated upon and digested for years, and more than once publicly suggested. In watchiug these efforts at uniformity and noticing the slow progress obtained, it has occurred that the real secret of failure has been in a want of singleness and uniformity of effort, and authoritative power and dignity in the body proposing reform. The Bar Association of Tennessee passes upon the subject, and recommends the enactment of certain legislation looking to uniformity, but this never reaches the Legislature of New York, and is scarcely noticed even in the Legislature of Tennessee. The American and the National Bar Associations appoint committees and draft enactments on all these subjects which, if passed, would secure this uniformity, and send these, with their earnest recommendation, to the several Legislatures. They are noticed by a few, but nothing substantial is accomplished. The difficulty is that these recommendations are not of sufficiently representative or of authoritative dignity to challenge and compel consideration. The delegates to these bar associations, though the associations are national in their character, are not accredited by the States themselves. The States cannot feel that the acts of these associations are the acts of their own delegated agents or that their particular interests have been represented.
The remedy, then, is a separate convention or congress, composed of delegates appointed by each State, to take into consideration the enactment of laws by the several States, which will secure this uniformity. Let the American Bar Association, and, if it will not act, then the National (I suggest the American first, because of seniority in age), appoint a time and place, and call a convention or congress of delegates appointed by the several States. Let this congress be composed of say five delegates, learned in the law, from each State, appointed by the governor, or selected by the legislatures. Let this congress meet at some central point-it might be at the same place, and upon the adjournment of the association itself, but entirely distinct and separate. Let this congress pass upon the whole subject of uniformity of laws, and formulate and recommend statutes which will secure the desired end, and then each State's delegates report back to the State Legislature, and act as a committee to secure the necessary legislation. The congress should also ask the Governors of the several States to recommend, by special message, the enactments proposed.
The advantages of this plan, as proposed, may be thus summarized :
1. The congress would be thoroughly representative in character, and composed, as it would be, of delegates from each State, could better determine what enactment would be suited or acceptable to their States.
2. Each State would have equal voice in the congress by having equal number of delegates.
3. The appointment by the States themselves of these delegates would, to a great extent, bind the States to accept the recommendations of the congress.
4. The congress thus appointed and holding its meeting, would be of such character and dignity as to challenge attention and receive subsequent action by the several State Legislatures upon its recommendations.
5. It would centralize and harmonize all the forces now inefficiently moving to the same end.
6. The delegates, reporting the action of the congress back to the several Legislatures, would be active and efficient workers in securing necessary legislation.
7. It would be inexpensive to the States.
8. It has, for precedents, the successful results of all other conventions which have barmonized into Federal constitution rules of conduct for many States.
This, in brief, is the plan I propose. I know you will recog. nize the importance and dignity of the subject. I pray further thought and consideration of this suggestion on your part. Discussion in your body will enlarge treatment and further elucidate the plan. I leave to this Association to take such action as may seem to it wisest and best.
JUDGE COOPER'S STATEMENT AS TO THE CODE
The following letters explain themselves :
NASHVILLE, Tenn., December 11, 1893. Judge W. F. Cooper, New York City:
MY DEAR SIR—At the last meeting of the Bar Association of Tennessee, Mr. J. H. Malone, of Memphis, in a paper prepared and read by him on the “Revision of our Laws, both Constitutional and Statutory,” gave a short history of the origin and preparation of the Code of 1858. Gen. J. B. Heiskell was present, and, during the discussion of the report, made a statement of the facts as he remembered them. I inclose you a copy of his remarks.
The history of the Code is of interest to every lawyer in Tennessee, and I have deemed it of sufficient importance to ask you to write me an account of its preparation. I desire to embrace your letter in the forthcoming report of the proceedings of the Bar Association.
An account of the matter written by you will be of great historical value, and appreciated by the members of the Bar Association and the lawyers generally. With best wishes, I am,
Sincerely your friend,
J. C. BRADFORD.
NEW YORK, December 17, 1893. J. C. Bradford, Esq., Nashville, Tenn.:
MY DEAR BRADFORD-Our friend Heiskell properly characterizes his brief statement in relation to the “making of the Code?
" as “not perfectly accurate.” He would have done well to have refreshed his recollection after the lapse of over a third of a century. I have done this by rereading the report of Mr. Meigs and my own report to the Legislature of 1857–8, with
which each of us submitted the result of our respective labors to that body, both of which reports were printed, and are now before me.
I think you will find these reports in one of the bound volumes of pamphlets given by me, with my law books, to the Vanderbilt Law Library. They were in the State Library, and are probably there yet in some out of the way corner, together with a daguerreotype of the revisers and legis. lative subcommittee when engaged in their joint work, and as they appeared in the “days that are no more." I have also before me a copy of the printed Code, in which at the time, and from the original manuscript adopted, I noted in pencil the statutes cited by the revisers at the end of each section of the Code as the authority for the section, as well as the decision of the Supreme Court, or other authority referred to, for any sug. gested addition actually adopted. It was with the aid of these notations that Thompson & Steger subsequently made their revisal. I also, at the same time, carefully noted the work of each of the revisers in the adopted work, and the sections added or suggested by each of the committee. It is easy for me, therefore, to assign to each man the work to his credit or discredit, as the case may be.
The reports of the revisers show the reason why they did not themselves do the work which was afterwards done by them and the subcommittee. Soon after the revisers were appointed, they held a consultation, and agreed upon a general division of the law into four parts—public rights, private rights, the redress of civil injuries, and crimes—and Mr. Meigs was allowed to select the first two as his particular portion of the joint work. But they differed as to the plan for the arrangement of the details. Mr. Meigs was in favor of an alphabetical order of arrangement, and continued of that opinion to the last, as he states in his printed report to the Legislature. I was for an analytical arrangement. I had at that time in my library the Civil Codes of Louisiana, the Code Napoleon, and Sergeant Stephens' admirable analysis of the laws of England. I procured from the State Library the Revised Statutes of New York, the Code of Iowa, the Code of Alabama, and the Code or Revisal of Mississippi. I also obtained, through a member of the New York Legislature, who was a classmate of mine at