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PAGE COMMERCIAL REGULATIONS. Quarantine Regulations for the Port of New York, embracing the Act of the State, passed 1846, 194 Tobacco Inspection Law of Louisiana, for New Orleans and Lafayette,.....
197 Semaphoric Telegraph, adopted by the United States Treasury Department,
200 NAUTICAL INTELLIGENCE. Shoal in the Sooloo Sea ......
201 French Islands of St. Peter and Miquelon,... Light-house on the Gronskars, ....
201 JOURNAL OF BANKING, CURRENCY AND FINANCE. Coinage of the United States Mint and Branches, in 1845,.. Deposits and Coinage of Silver and Gold at the Mint of the United States and Branches, in 1845, 202 Copper Cents coined in 1845,...
203 Deposits of Gold at the United States Mint and Branches, for Coinage, from Mines in the United States, in each year, from 1824 to 1845,.......
203 Amount of Coinage at the Branch Mints, from the commencement of their operations, to Dec., 1845, 204 Value of the Whole Coinage of Gold, Silver, and Copper, and Number of Pieces coined in each year, from 1793 to 1845,.....
...... 205 Banks of the State of New York-Comptroller's Report,.. Finances of the United States-Statement of the Secretary of the Treasury,...
208 Receipts from the Customs, for the Fiscal Years ending 30th June, 1845 and 1846,.. ........... 208
RAILROAD AND CANAL STATISTICS. Capacity of Railroads for business.- Reading Railroad, Receipts in 1844 and 1845, Erie Canal and Western Railroad, Roceipts compared,......
209 Comparative cost of Railroads in the Southern and Northern States,
210 Transportation of Milk on the Erie Railroad, from 1842 to 1845, .
210 STATISTICS OF POPULATION. Immigration into the United States, first six months of 1846,...
210 Progress of Population in Boston, from 1742 to 1845,.... Population of Boston by different Censuses, from 1742 to 1845,. Proportions of White and Colored Population of Boston, ........
211 Population of the Austrian Monarchy, by the last Census,.
211 JOURNAL OF MINING AND MANUFACTURES. Wages of Women in Factories in New Hampshire and Massachusetts,
212 Amount of Deposits in the Savings' Bank at Lowell, from 1841 to 1842,
212 First Cast-Iron Manufactured in Michigan...
219 American Iron and Steel Manufactory,
213 Enterprise of Manufacturers of Massachusetts.—Mineral Resources of Alabama,..
213 COMMERCIAL STATISTICS. Price of Flour, Wheat, and Corn, at Baltimore, on the lst of each month, in each year, from 1839 to '46, 214 Export of Teas from China to the United States and Great Brita in.......
215 Exports of Lard and Cheese from the United States to different countries in 1844 and 1845,...... 216 Quantity of Grain taken out of Bond, in the United Kingdom, for the last twenty years.......... 216 Wheat entered for Consumption in the United Kingdom, for the last eleven years,.
216 MERCANTILE MISCELLANIES. A Commercial Absurdity-Exchange on England,..
217 Love of Money in America. - The Rich and the Poor,
218 A British Creditor's Liberality to a Frandulent Debtor,
218 OUR CORRESPONDENCE. Questions of the Correspondent of the London Morning Chronicle answered,... Taxation in New York.--Exports from Great Britain.-Canadian Imports.
219 Montreal Free Trade Association.-Canadian Economist,...
220 Letter from the Montreal Free Trade Association, to the Editor of the Merchants' Magazine...... 220
THE BOOK TRADE. Notices of twenty-two new Books, &c..
Art. 1.-ELEMENTS OF COMMERCIAL LAW.
Try what the ofen, what the covert, yield.”-Pope. It is an impressive development of the graciousness of the Creator, so to have ordained, that the propensity to acquire wealth, so generally implanted in the bosom of His creatures, should, under moral and religious restraint, be made instrumental, through the medium of Commerce, in diffusing inestimable blessings. That Commerce and civilization go hand in hand, in their progress, is proverbial. But perhaps the fact was never more strikingly exemplified, than by the commercial municipalities which eventually constituted the confederacy of the “Hanse Towns." The cities which gave birth to that confederacy were the nurseries of social amelio. ration;
while in strong contrast, was the sad picture of Europe in general, exhibiting intellectual apathy and moral degradation. The history of Com merce is a very essential portion of the history of the ancient and modern world, and the history of commercial law, affording a rich treasure of scien. tific and practical knowledge, is of course embraced by it.
Commercial law is the production of time and experience. The basis upon which it rests, is the ethical maxim of measuring the rights of others, by the standard of our own; or, as it is expressed by scriptural injunction, of doing to others as we would have others do to us. With such a basis for support, it is no cause of wonder that it should have survived the sur. prising number of civil and political convulsions that are faithfully and vividly depicted upon the pages of ancient and modern history.
In a savage, and even in a pastoral condition of mankind, no systematic mode of commercial traffic can reasonably be looked for. The utmost extent to which trade can be prosecuted, in either of those conditions, is an exchange of one of the necessaries of life for that of another. The use of money is indispensable to a system of trade, the effect of which is to divide personal property into minute parts,* and thereby afford a chance of
* Dr. Johnson, in describing the simple manners of the inhabitants of the Hebrides, says, “ In towns, he who has a shilling, may have a piece of meat; but where there is no Commerce, no man can eat mutton, but by killing a sheep."
profit, and provoke a spirit of hazard and adventure. When that point is arrived at, the following are the consequences :--1. Matters of dispute arising out of commercial transactions. 2. The establishment of tribunals for the determination of such matters of dispute. 3. Precedents to be thereafterwards followed. 4. COMMERCIAL LAW.
Commercial law is either positive or prescriptive. It is proposed to treat of the former as primordial.
Positive commercial law is the progeny of legislative policy and action. In other words, it consists of legislative enactments, like the statutes of the British Parliament, and those of the American Congress, and of those of our respective State legislative assemblies. It has ever been, and ever must be, an unfortunate fatality attending positive law, indispensable as it is in affording the greatest facility to the operations of Commerce, to open a capacious avenue to litigation. This proceeds both from the short-sight. edness of the human intellect, and the indigence of language. Digested and framed even by the judgment, and under the supervision of men conspicuous for deep sagacity and eminent for profound professional learning, positive law is still beyond exemption from the cause of complaint just mentioned. In evidence of this, it is only necessary to refer to the highly extolled statutes of frauds, bankruptcy, and insolvency. The controversies that have proceeded from legislation upon each of those subjects, and which have been adjudged and determined by the tribunals of judicature, are al. most countless. It is nevertheless true, that such statutes, especially after revision, modification and alteration, from time to time, to suit exigencies at first unforeseen, are of inappreciable value in rendering encouragement to commercial enterprise, and in sustaining at the same time the predomi. nance of the universally recognized principles of justice and equity. Still, the lamentable fact stated, makes it a duty imperative upon legislative functionaries, in digesting and arranging commercial enactments, to study to avoid, as much as is practicable in accomplishing such work, giving oc. casion for doubt and disputation, after they are promulgated.
A more provocative infliction upon a merchani cannot well be conceived, than when he is in the haste of business, and has occasion for a reference to a commercial act of Congress, or of a State, to determine him how to proceed in a particular negotiation, to be at a loss to comprehend what it all means. It becomes indeed a very serious matter with him, when he is thus constrained to suspend his wonted mercantile promptitude of action, for professional consultation, and then ultimately find himself in the meshes of an expensive lawsuit. Upon the importance of lucidness of language and plainness of expression of intention, in the framing of positive commercial ordinances, a great degree of stress was placed by Lord Mans.
That illustrious and astonishingly astute judge, (though he has been, at times, captiously objected to, as being too great a latitudinarian, in the discharge of his judicial functions,) frequently remarked, it has been said, that the certainty of a rule was often of more importance, in mercantile cases, than the reason of it. A settled rule, he maintained, should be preserved for the security of property. This is an admonitory suggestion to those who constitute the legislative department, which they are bound by their peculiar duty to respect and observe. Professional men are well aware that many of the acts promulgated from the halls of legislation are so incautiously and crudely prepared, that to determine with any tolerable degree of accuracy, of the intention which dictated them, is a task of ex
treme difficulty. The lawyer of experience in courts of justice, is sensible that if the causes of expensive litigation, proceeding from this source, found no place upon the docket
, the number of civil causes ordinarily found there, would be very materially diminished.
There appears to be no good reason why the directions for interpreting the meaning of a legislative act should not be deemed strongly analogous, if not strictly applicable, to the directions to be observed in the construction of written mercantile contracts. The intention of the act, in the one case, and the intention of a written contract, in the other, is the important object to be attained ; and, in effecting that intention, the law, under par. ticular circumstances, will view the literal language used, as subservient to the purpose plainly manifested.* Many cases, we have the high author. ity of the author just named in the note below, for saying, are given in the books in which the plain intent has prevailed over the strict letter. In the case of a statute, and in the case of a written contract, it is considered that plain and unambiguous words shall not be sacrificed to a refinement of terms which would defeat the true and obvious sense. The whole legis. lative act, like the whole written contract, is to be studiously weighed, and every part compared in connection with every other part, that the act or the contract may be stamped throughout with lucid and imposing consis. tency. If, in a mercantile case, the contract be so drawn up that its true import is questionable, the established usage of trade will exercise a control in ascertaining the certainty of intention ; and the same is applicable to a legislative enactment. The modern, and more reasonable practice, is, to give to the language its just sense, and to search for the precise meaning, and one requisite to give due and fair effect.t
The parliamentary acts of England, and the acts of the legislative tribunals of the United States, upon commercial subjects, have been referred to, as illustrative of the meaning of positive commercial law. Between the extent of the powers of legislation existing in the one country, and the extent of those powers existing in the other, an important difference is presented, which may here be appropriately noticed, though it conflicts not at all with what has been advanced in explanation of the nature of positive law. The positive acts of the English Parliament, as is stated in the commentaries of Blackstone, are the exercise of the highest authority that the Kingdom of England acknowledges upon earth. In the United States, no such paramount legislative authority is known. Here, there are written Constitutions, prescribing the limits of legislative action, both to Congress, and to each one of the States ; and a judicatorial tribunal is established, to declare void all such action as transcends the limits designated.
“ The courts of justice," says Kent, in speaking of the courts of this country, “have a right, and it is their bounden duty, to bring every law to the test of the Constitution, and to regard the Constitution, first of the Uni. ted States, and then of their own State, as the paramount or supreme law, to which every inferior derivitative power and regulation must conform. The Constitution,” says he, “is the act of the people speaking their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legis. lative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. The interpretation or construction of the Con.
See Kent's Com. in treating on the subject of contract.
stitution," he proceeds to declare, " is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law;" and, “ an independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the Constitution, and trying the validity of statutes by that standard." To this effect, there have been repeated decisions of a commercial character, by the highest branch of the Federal Judiciary.
The nature and derivative source of positive commercial law, and the constitutional restraints imposed upon the creation of it, in this country, having been considered, that portion of it distinguished by the term "prescriptive,' next awaits attention. This term is expressive of prolonged usage. The term “positive," on the other hand, it will be borne in mind, is employed to denote commercial law, issuing from an apprehension or a surmise of the legislature, that the proposed provisions of a particular statute designed to be passed, will accomplish a certain desirable end of general policy. The distinction between the two is therefore as wide as the distinction between mere hypothesis and absolute conviction ; or, as between the prospective and the retrospective. Positive commercial law involves the idea of hazard and fallibility, whereas prescriptive commercial law involves the idea of certainty and infallibility. The one is declaratory and recent in its inception; the other has been already begun, and for that reason it may be said to be historical. Shortly to describe prescriptive commercial law, it is founded upon settled custom and usage. With so much propriety may it be said to be historical in its nature, that it is to a great extent derivable even from rules of law, as settled by general suffrage and judicial adoption in ancient Rome. Cicero was bold to foretell that the jurispru. dence of Rome, as it had been matured in his time, would flourish there. after, and would, moreover, control the people of every nation to the end of time. That eminent master of the science of morals was led to reason, that whatever law was theoretically right, and had, besides, been practically ascertained to be so, must of necessity be coeval with time. It is scarcely necessary to add, that the logical merit of his conclusion has thus far been conspicuously evinced by the examples of Europe and America. Neither, one would suppose, was it necessary to assert that the ut. most stretch of the human intellect to prescribe, in advance, rules of action which would be in unison with contingencies yet to come to pass, in the course of the ever fluctuating concerns of commerce, would result in en. tire miscarriage. An effort, indeed, such as that, would amount to a pro. fane pretension to the prescience of Deity. In the judicial administration of courts of law, an obligation is imposed upon the judges, which they cannot conscientiously evade, to consult precedents established by their predecessors.* It is their duty, moreover, to extract from those precedents the ethical principles lying at their foundation, and clearly to point them out in the opinions they are called on to deliver. By such means has it been, that the science of pure ethics pervading the early decisions, has given tone to the judgments and the legislation of modern times.
* A solemn decision, says Kent, upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied, in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness.