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of crafty chicanery. Perhaps, too, in assignments of dower and partition of estates, where the titles of the parties are questionable and intricate, or the tenants in possession are seized of particular estates only ; it will be found, that courts of equity can administer the only safe and permanent relief.
“ The Committee are not aware of any solid objection to the establishment of a court of equity in this Commonwealth. The right to a trial by jury is preserved inviolate ; and the decisions of the court must be governed as much by settled principles, as courts of law. Precedents govern in each, and establish rules of proceeding. The relief granted is precisely what a court of law would grant, if it could; for equity follows the law. The leading characteristics of a court of equity are, the power to eviscerate the real truth by a discovery of facts upon the oath of the party charged; the power to call all parties concerned in interest, however remote, before it ; and the power to adapt the form of its judgments to the various rights of the parties, as justice and conscience may require.”
We have yet many things more to say on this subject, but time fails us, and we have wearied ourselves, and we fear that our readers also are wearied with the length of this discussion. Perhaps at some future time we may resume it. At present, we are willing to pass the short remainder of our journey in such good company, as Mr. Chancellor Kent and his excellent Reporter.
Mr. Johnson, if we do not mistake, began the business of Reporting in February, 1806. Since that period he has published, in an uninterrupted series, all the decisions of the supreme court of New York, down to the present time, in sixteen goodly volumes. He has also published three volumes of reports of the cases, in the period immediately preceding Mr. Caines's Reports in the same court. Unwearied in his labors, he has now added to our obligations to him, by presenting us the three volumes of chancery cases, whose title is prefixed to this article.* He has been so long before the public in this most respectable and useful character, that, perhaps, it may be thought almost superfluous to say a word upon the merits of his Reports. We will venture, however, to give them a passing notice, at the hazard of repeating what almost every body knows, and none would incline to disbelieve. He is a gentleman, as we
The Reports of Mr. Johnson are now (1835) completed, and embrace thirty volumes, including those stated in the text.
have the pleasure to know, of great literary accomplishments, well instructed in the law, and of most comprehensive research. He loves, too, - and it is no inconsiderable praise in what are called these degenerate days, — he loves the law with all his heart, and has a sincere and unaffected enthusiasm for its advancement. His Reports are distinguished by the most scrupulous accuracy, good sense, and good taste. He gives the arguments of counsel with force, precision, and fluency; transfusing the spirit, rather than the letter, of their remarks into his pages. One is never puzzled by unintelligible sentences, impertinent sallies, or disproportionate reasoning in his volumes. There is an exactness and symmetry about them, that satisfies the judgment. His notes, too, are all good ; so good, that we wish we had a great many more of them. He leaves little causes to take care of themselves, and assigns them a brief space. But when he comes to great arguments, where research and talent are brought out with vast power and authority, he pours their whole strength before the reader, giving him all the materials of an independent judgment. He can, if he pleases, repeat such cases for himself, by the aid of the reporter. As to the opinions of the court, we have not any necessity to say much. It is, and always has been, a very able court, whose decisions any man might be proud to report ; and the highly commendable diligence of the judges, in committing all their important opinions to writing, while it gives the impress of authority, at the same time secures the court from the inaccuracies and mistakes of oral opinjons. It gives dignity to the bench, and certainty to the law. Who, but must read with delight and instruction the opinions of such men as Mr. Chief Justice Spenser, to say nothing of his learned coadjutors and predecessors ? For ourselves, we have no hesitation in avowing the opinion, that the New York Reports, for the last twenty years, will bear comparison with those of an equal period in the best age of the English law, begin the selection where you may ; and this, whether we examine the well considered and ingenious arguments of the bar, or the deep reasoning and learning of the bench, or the accuracy and ability of the reporter. And as to the chancery decisions of Mr. Chancellor Kent, they are as full of learning, and pains-taking research, and vivid discrimination, as those of any man, that ever sat on the English woolsack.
Enough has been said, and more than enough, to attract the attention of our professional readers to the volumes, referred to at the beginning of this article. If we had room, we might be tempted to
extract a case or two for perusal, on account either of its general interest, or the acute and learned discussion it contains. There may be some few cases, in which jurists might venture to hesitate, as to the extent of the Chancellor's decision ; at least where there might be a measuring cast in mooting the law. But these cases (if any such exist) are so few and so unimportant, that they are lost in the bulk of the volumes; and criticism is never employed to so little advantage, as in attempting to revise the sentences pronounced by courts of justice. The only fit and efficient tribunal, except in very gross cases, seems to be that provided for by the law itself, an appeal to a higher tribunal to review the sentence, or to the same court to reconsider, at another time, its own judgments. We cannot quit these volumes, however, without expressing our gratitude to Mr. Johnson for presenting them to the public. No lawyer can ever express a better wish for his country's jurisprudence, than that it may possess such a chancellor and such a Reporter.
OF A TREATISE ON THE LAW OF INSURANCE, BY WILLARD PHILLIPS.
[First published in the North American Review, 1825.]
of commerce in modern times will appear more surprising, the more minutely it is examined. It steadily advanced among the nations of Europe during the whole of the eighteenth century; and in the latter half, notwithstanding occasional interruptions by war, it was probably double in extent and value, what it had ever attained in any other equal period. Holland had, indeed, lost her maritime superiority by the destruction of her carrying trade. But the Northern Powers, and particularly Russia, assumed a highly commercial character. Italy was compelled to mourn the departure of the times, when Venice, and Genoa, and Leghorn, covered the Mediterranean with their wealth. But France felt the invigorating influence of trade, and began to court with respect, what she had previously cherished only as a source of revenue. Above all, British commerce, during this period, enjoyed the most signal triumph. Her merchants and mariners were familiar with the whole globe, with the Baltic and the Levant, the Black and the White Sea, the Atlantic and the Pacific, with the Americas and the Indies, with the fisheries of Newfoundland and Greenland, with the fur-trade of the Indians, the timber, hemp, and manufactures of the North, the cottons, spices, and teas of the East, and with the gums, drugs, ivory, and flesh of Africa. It is probably short of the real state of the case to assert, that the commercial capital of Great Britain was quadrupled during the reign of George the Third. Of the causes of this vast increase, it is beside our present purpose to enter into an examination. But there can be no doubt, that her navigation has been essentially aided by the improved state of her manufactures, arising as well
from superior skill and workmanship, as from her wonderful inventions in cotton-machinery. She now exports to the East Indies and China cotton goods of her own manufacture, to an immense value, which she formerly imported from those countries. And the unrivalled beauty and excellence of her fabrics have not only suspended the use of those of foreign origin within her own dominions, but have enabled her, in a great measure, to command all the open markets of the world.
Under such circumstances, it would be a natural inference, that there had been a corresponding advancement of her commercial law. The conclusion would seem natural, if not irresistible, that a people, distinguished for centuries by their commercial activity and enterprise, must have been under the protection of a well settled system of commercial jurisprudence. Philosophers and practical jurists would ask, how it would be possible for the infinite variety of business, growing out of an extensive foreign trade, to be adjusted, without resort to some well known rules and general principles. Strange, however, as it may seem, it is undeniable, that England had made very little progress in commercial law, at so late a period, as the commencement of the reign of George the Third. Yet she had been a commercial nation, to a considerable extent, from the reign of Elizabeth ; and for more than a century had possessed plantations and colonies, whose population and trade perpetually invigorated her navigation.
A slight historical review will put this matter beyond any reasonable controversy. One of the earliest English works on maritime law is Malynes's Lex Mercatoria, published in 1622, in the reign of James the First. Welwood had a few years before printed his Abridgment of the Sea Laws; but it is principally a collection of the rules and ordinances of foreign countries. It is remarkable, that Malynes refers to no antecedent English writer on the subject of his treatise, and, except in a very few unimportant instances, to no English adjudications. His work is principally a compendium of commercial usages, not confined to England, but supposed by him to be common to all the maritime states of Europe. It is quite a meagre and loose performance, and contains few principles, that are now of any practical importance. He has two or three short chapters upon bills of exchange, which show, that the doctrines upon that subject, then familiar on the Continent, were not much known in England, except as usages among merchants. He laments, that negotiable promissory notes, which then