Imágenes de páginas
PDF
EPUB

that was possible; or otherwise, in some instances, an equivalent. Can a power to adjudge a specific performance be expressed more unequivocally or more strongly? This instance is referred to a period so ancient as the reign of Henry the Second.

In the reign of Edward the First, we find that, in some cases, land could be recovered in a writ of covenant; and in such cases, it was a real action: in other cases, damages only could be recovered ; and in such cases, it was a personal action. The former writ of covenant was generally that, on which fines were levied.? Actions of covenant for land occur likewise in the time of Edward the Second. It was held, that this action was appropriated for the re. covery of a fee simple or of a term.3

In tracing this subject down to the reign of Edward the Third, we find that a writ of covenant was that, upon which fines were most commonly levied. But, by this time, the writ of covenant was usually brought upon a supposed transaction. The writ of covenant, in this instance, had the effect of actually transferring the land ; and thus produced a specific effect. Such, with regard to fines, continues to be the practice to the present day.

I think I have now proved, that the power to adjudge a specific performance is strictly and originally a power at common law.5

The power to set aside deeds, and to order sales and conveyances of land, can be considered only as branches of the power to compel a specific performance.

In all the views which we have hitherto taken of this important part of jurisprudence, we find no reason to conclude, that a court of chancery would bestow any

3

11 Reev. 119.

2 Id. 477. 2 Reev. 33, 147. 4 Id. 173. [5 Powell, in his treatise upon contracts, published in 1790, but to which Wilson makes no reference, states the same views. 2 Powell on Contracts, p. 3.)

improvement of essential importance, on the juridical system of the United States, or of this commonwealth.

There is, however, another view, in which this subject ought to be considered. In that other view, if I mistake not, the establishment of a court of chancery will be found a matter of great moment both to the United States and to Pennsylvania.

Military power has too long governed in the affairs of men : influence of a kind more peaceful and benign is, we hope, about to assume its place. We trust that, in future, men, instead of knowing and treating one another as enemies, and as engaged in enterprises mutually destructive, will know and treat one another as friends, and as jointly operating in plans and systems for promoting the prosperity, the virtue, and the felicity of the human

race.

Deeds of arms, we fondly anticipate, will not be the themes of future songs. The more delightful subjects of agriculture, of the arts, and of commerce will employ the efforts of genius the most sublime.

Commerce arrests our present attention. Its encouragement is justly a favorite object with every government, which is good and wise. The protection of commerce, and of foreign merchants engaged in commerce, forms an article in the great charter of the liberties of England. A regulation, so salutary and so humane, deserves as it has obtained, the warmest eulogium of the eloquent Montesquieu. Upon this subject, his powers carried him away like a torrent, rapid and irresistible: my humbler aim is to glide along a smooth and gentle stream.

The law merchant as well as the law maritime forms a branch of the general law of nations. The inference is natural, that mercantile as well as maritime transactions should be the object of a separate jurisdiction; and that we should see courts of commerce as well as courts of admiralty. Things done upon the sea are deemed worthy of peculiar cognizance : are things done beyond the sea less entitled to peculiar notice ?

In the rude and barbarous times, which are past, and which, we pray, may never return-in those times, above alluded to, when nations were known to nations only by feats of hostility; even their hostile feats were subjected to the cognizance of law, and were dignified with an appropriate jurisdiction. The court of chivalry, held before the lord high constable and earl marshal of England, had cognizance of contracts and deeds of arms and of war out of the realm, and also of things which touched war within the realm. When war was the general trade, this court enjoyed a high degree of consequence and reputation. My Lord Coke calls it “the honorable court.” As commerce comes in the place of war, should not commercial come in the place of military institutions ?

Even with regard to commerce, we shall find, in former ages, establishments expressly made and calculated for its protection and encouragement, in the manner in which it was then carried on. This was chiefly in markets and public fairs, at which merchants attended personally with their merchandise. It was not then usual to trust property to a great amount in the hands of foreign correspondents.

So early as the reign of Henry the Third, we find the delays, and what were called the solemnities, of proceedings dispensed with, where the plaintiff deserved a particular respect or privilege; as noble persons, or merchants, who were continually leaving the kingdom.”

Edward the First has been often and deservedly styled the English Justinian. In his reign we may expect to find a proper attention paid to the interests of commerce. Our expectation will not be disappointed. In his reign the statute of merchants was made. 14 Ins. 123.

21 Reev. 295, 296, 300.

The pressing demands, which arise in the course of mercantile transactions, rendered the delays and the niceties of the law inconvenient, and sometimes fatal, to the credit and fortunes of the merchants. This, it is said, occasioned many to withdraw from the kingdom. Those, who remained, made application that some speedy course might be appointed for recovering their debts at the stipulated times of payment. In compliance with their application, the following method of securing a ready payment of their debts was provided by parliament. The merchant was to bring his debtor before the magistrates specified in the law, to acknowledge the debt and the time of payment. This recognizance was entered on a roll. If the debtor did not make payment at the time appointed, the magistrate, before whom the recognizance was acknowledged, was, on the application of the creditor, obliged immediately to cause the chattels and devisable lands of the debtor to be sold, to the amount of the debt, by the appraisement of honest men. The money, if the property was sold, was paid instantly to the creditor: if the property could not be sold, it was delivered to him according to the appraisement. If, from partiality to the debtor, the appraisers set too high a price upon the goods, they were themselves obliged to take them at the price which they fixed, and to satisfy the creditor for the money due to him."

Commerce continued to be patronized by the kings, and encouraged by the legislature, of England. In the twentyseventh year of Edward the Third, was made the famous statute of the staple, containing a most complete code of regulations for commercial transactions at the staple, or great mart, which was then established in certain places of England. As this mart was intended, in its very institution, for the resort of foreign merchants, a mode, consonant to the ideas of foreigners, and fitted to the nature of mercantile transactions, was adopted for administering justice. That disputes might be decided among them according to their own conceptions, it was provided, that none of the justices of the courts of Westminster Hall, nor any other justices, if they came to the places where the mart was, should interfere with the jurisdiction of the mayor and constables of the staple. Within the town where the mart was, those officers had cognizance of people and of things touching the mart. All merchants coming to it, and their servants, were, in all things concerning it, governed by the law merchant, and not by the common law of the land, nor by the usages of cities, or boroughs, or towns; nor were they, concerning such things, to implead or be impleaded before the magistrates of such cities, boroughs, or towns. That the foreign merchants might have reason to complain of no one, and that no one might have reason to complain of them, speedy justice was administered from day to day, and from hour to hour.

11 Reev. 405.

That contracts made within the staple might be strictly observed, and that payments might be punctually made, a course similar to that of the statute merchant was directed. The mayor of the staple was empowered to take similar recognizances of debts; and upon those recognizances, similar proceedings were held. A recognizance of this kind has obtained the name of a statute staple.

It was directed that, in every staple town, the mayor should be one well acquainted with the law merchant, that he might be qualified for the discharge of such an important trust.?

If we refer to the institutions of the ancient nations; we shall find that, among them too, tribunals have been established for the decision of mercantile causes. Magis12 Reev. 71.

2 2 Reev. 73.

« AnteriorContinuar »