trates, called avlodizan, had the jurisdiction of them in Athens. The prætor peregrinus determined them in Rome. Even after the fall of the western empire, the institution of courts for the trial of commercial suits subsisted in many places: 3 and fairs and markets had their peculiar jurisdictions assigned for the expeditious determination of controversies that might arise in them. The United States have the most extensive prospects of commerce before them. The variety of their climate, the richness of their soil, the number and value of their productions furnish them with abundant materials to exchange for the manufactures and refined commodities of Europe and of Asia. The genius of their governments is favorable to trade, because it is favorable to equality and industry, the only pillars, on which trade can be supported. The long and cumbrous list of duties and customs, which public debts, the arts of finance, and the political views of government have introduced into every country of Europe, is, in a great measure, unknown in their ports. They possess not, indeed, the advantages of use and habit to form precedents for their transactions, public and private, with foreign nations, and with the individuals of whom foreign nations are composed: but to compensate for this, they are disengaged from one inconvenience, with which use and habit are naturally accompanied—I mean that of confining the imagination, and damping the spirit of vigorous and enlarged enterprise. In order to improve the opportunities, with which they are favored, and to avail themselves, as they ought, of the happy situation, in which they are placed, they should encourage commerce by a liberal system of mercantile jurisprudence. These observations, concerning the situation, the duty, and the interest of the United States, receive an easy and 1 Bouch, The Com. 134. 2 Id. 138. 8 Id. 140. a strong application to the situation, to the duty, and the interest of Pennsylvania. In other countries, as we have seen, where commercehas been regarded as an object worthy of the public attention, jurisdictions have been established for the trial and determination of commercial causes. In the United States and in Pennsylvania, commercial causes are tried in the same manner, by the same tribunals, at the same expense, and with the same delay, as other controversies relating to property. This must be often productive of the most serious disadvantages. Before the revolution, we were strangers, in a great measure, to what is properly called foreign commerce. The same system of commercial law pervaded Great Britain and her colonies. The rules, therefore, of admitting foreign testimony, and of authenticating foreign transactions, have been but lately the objects of much considera-tion. They have not been fixed with the clearness and precision, which are now become requisite. But they should, as soon as possible, be ascertained, particularized, and rendered as easy as the precautions necessary to avoid fraud will admit. Great innovations should not be made: a wise and well tempered system must owe much to experience. But the foundations should be laid betimes. They should be broad, and deep, and well compacted, that they may be sufficient to support the magnificent structure, which the present and future ages will build upon them. The important ends, which may be attained by a court of chancery formed and organized for commercial purposes, now begin to appear in prospect before us. In this view, the establishment of courts of chancery appears to be of high importance to the United States in general, and to the commonwealth of Pennsylvania in particular. It will not, I am sure, be supposed, that I am unfriendly to the trial by jury. I love-I admire it: but my love and my admiration spring from proper principles: I love and I admire with reason on my side. Sacrilege would be offered to the venerable institution, by profaning it to purposes, for which it was never intended. Let it be maintained in purity-let it be maintained in vigor: but if it be so main-tained, it must be maintained in that spirit, and in that application, for which it was formed, and to which it is so exquisitely adjusted. Its genius should be encouraged and concentred: if it be applied to foreign and unnatural objects, its strength will soon dissolve and evaporate. Let us attend to the nature of mercantile transactions. Accounts never were, by the course of the common law, brought to trial before a jury. To a jury, indeed, the gen-eral question-ought the party to account-was submitted for its determination.1 But the adjustment of the accounts was submitted to auditors, instead of being tried by a jury. If, upon any article in account, the auditors cannot agree; or, if agreeing, the parties are not satisfied; then, upon each point, so litigated, a separate and distinct issue may be taken, and that issue must be tried by a jury. In this manner, a hundred issues may be joined in the same cause, and tried separately by as many juries; but the general statement of the disputed accounts still remains before. the auditors, and by them the general result from the whole must be formed and ascertained. This mode of liquidating accounts judicially at common law, is obviously exposed to many disadvantages and delays; and, for this reason, the action of account has, in a great measure, fallen into disuse. In England, the parties in unsettled and litigated accounts have recourse to chancery; in [The members of the legal profession who desire to examine the propositions here stated will find the authorities cited in Andrews" Stephens' Pleading, p. 78.] Pennsylvania, to arbitrators, or to jurors acting in the character of arbitrators. The numerous embarrassments, which arise from the want of a proper commercial forum, are well known and severely felt both by the gentlemen of the bar, and by the gentlemen of the exchange. Impressed with these truths, the committee who were appointed to report a draught of a constitution for the consideration of the late convention of Pennsylvania, included, in their report, the plan of a chancery establishment. The convention thought it improper to fix that establishment as a part of the constitution, but have given ample powers to the legislature to adopt that or any similar one, and to model and alter it as the sage instructions of time may direct. Impressed with these truths, which I have both witnessed and experienced, I have thought it my duty to bring this important subject fully into your view. Viewed in a commercial light, Pennsylvania, and particularly her metropolis, attracts solicitous attention both on this and on the other side of the Atlantic. Every friend to Pennsylvania, every friend to her metropolis, every enlightened friend to the interests of commerce, must wish ardently to see her commercial establishments complete. These observations apply to the United States on a scale still more extensive; and, as applied to them, therefore, acquire still an additional degree of importance. With these observations I conclude, at last, my minute delineation-if drawn in a more masterly manner, it would be interesting as well as minute—of the juridical establishments of the United States and of Pennsylvania. CHAPTER IV. OF THE NATURE OF COURTS. THE next subjects of my remarks are, the nature, and the constituent parts of courts. That the judicial departments should be independent, is a principle, which, in a former part of my lectures,1 I had an opportunity of stating, explaining, and enforcing at large. In the review which we have now made of that department, as established in the United States and in this commonwealth, we see what a strict and uniform regard has been paid to the practical observance of this very important principle. To neither of the constitutions is a judicial magistrate known, who holds his office by a tenure less secure or less respectable than that of his own good behavior. All courts should be open. This is one of the rules, which, by the constitution of Pennyslvania, is rendered inviolable by the legislature itself. It is a rule of the highest moment. The place of administering justice was originally at the gates of the cities-in other words, in the presence of all the people. Such was the practice in the days of Job.3 By Moses also, of legislators the first and wisest, the same ancient custom is mentioned.4 Homer speaks of it as 1 Ante, vol. 1, p. 405. 8 Job. xxix. 7. 10 2 Art. 9, s. 11. + Gen. xxiii. 18. 147 |