Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
Coming to statutes which merely facilitate business as it now exists,
by far the most important movement has been the successful work of the
State Commissioners on Uniformity of Law in getting their negotiable
instrument act passed in nearly all the States, and in several already
their uniform law statute on sales, only recommended in 1907. Some
progress has been made in getting a uniform standard of weights and
measures, and there is an increasing tendency to prescribe specific
weights and markings for packages--possibly unconstitutional
legislation. Still more important as a change in previously existing
law has been the increasing tendency to make documents other than
bills and notes negotiable. Perhaps this is a matter which requires
explanation to the lay reader.
The early Anglo-Saxon law could not conceive of ownership of property
as distinct from possession, and to their simple minds, when ownership
was once acquired it was impossible to divest the owner of his
property by any symbolical delivery. Hence the very early statutes
making fraudulent sales or conveyances of property without actual
and visible change of possession. The notion of a symbol, a paper or
writing, which should represent that property would probably have
impressed them like a spell or charm in a child's fairy tale. Even
theft with asportation could not alter property rights, even in
favor of innocent purchasers, when the owner did not intend to part
therewith. A moment's recollection of what is now perhaps the most
familiar of Teutonic saga to the ordinary reader, the text of Wagner's
"Ring of the Nibelung," will give ample evidence of that mental
attitude. But the Oriental mind was far more subtile. To the Jews or
Lombards we owe the discovery of that _bill of exchange_--the first of
negotiable instruments, and the first historically to bring into
our law the legal concept of a symbol of ownership which might be
instantly transferred with an absolute change of title in the property
thereby represented, and this either to a present transferee or to one
far away. Thus, a simple bill of exchange might transfer the ownership
in a pile of gold in a moment from a man in Venice to a man in London,
thereby (if the law-merchant was respected) freeing the treasure
itself from attack at the hands of the Venetian authorities. And not
only was this change of ownership instantaneously effected by the
transfer of some symbol or document representing it, but there also,
and as a necessary part of the invention, grew up the doctrine that
the transferee was relieved of any claims against the property at the
hands of the previous owner. This is what we mean by negotiable;
and it is essential that the precise meaning of the word should be
understood if we are to understand the importance of this legislation.
Even most business men have a very vague understanding of the
difference between _negotiable_ and _assignable_. Substantially
Public-domain text, read in full here on John Shaqi.
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