are elected at the same time, and in the same manner, in order to supply their places in such cases, and on other unavoidable occasions. A court is thus constituted, which costs the country nothing; a court most admirably adapted to bring home speedy justice to every man's door, at little or no expense, instead of forcing him to purchase it at an extravagant price from the officina justitiæ, or "justice-shop," as it has been called, of the capital; a court, the decisions of which are likely to prove the most satisfactory to the suitors, since they are pronounced by judges, who, like arbitrators, are of their own election, and are also of their own condition. It may be said, indeed, to be the very perfection of the trial per pares: nor should it be forgotten that it possesses this further advantage, that in elevating those merchants who are most distinguished for their long-tried integrity, and honourable conduct, to the dignity of the judicial office, it throws around the commercial character a degree of lustre and public consideration, which must produce the happiest effects. The wise policy of our ancestors seems to have been fully aware of the expediency of those commercial courts, in which merchants and tradesmen sat as judges. Accordingly we find that all the ancient charters given by our British sovereigns to our cities, and in most cases also to other towns and boroughs, when considered of sufficient commercial importance, contained the grant of a court of local jurisdiction, of which the mayor and aldermen, or the bailiff and common-councilmen, were constituted the judges. These courts also were invested with some peculiar and exclusive privileges for the special protection of trade, and differing from the common law of England; such is what is called the proceeding by foreign attachment, &c. The little commerce which was then carried on in England, appears to have been confined to these isolated and incorporated communities. These corporation courts therefore, at that period, answered every desirable purpose; but now that commerce has become more extended and important, and our consideration of its interests more enlarged, they are found to be too much cramped and confined in their operation, and have consequently fallen almost entirely into disuse, except for the trial of small matters, under forty shillings value. Let the principle then be preserved, but let it be diffused over a wider field of action, and on a more liberal scale, as in France. And, above all, let a new code of commerce be framed, to suit the present times, and the exigencies of our commercial relations. II. Of the Cheap and Prompt Despatch of Business in This These advantages will be perceptible when we find that the proceedings are summary, divested of all technicalities, and that the ministry of professional lawyers is dispensed with, though not prohibited. Delays are always dangerous, and more particularly so in trade; all therefore that the French commercial code enjoins the plaintiff in commencing his suit to do, is to cause his adversary to be served with a summons to appear, at a short delay; which citation contains a brief, but clear and intelligible statement of the cause of action, and which, if he pleases, he may himself prepare, and which is served by one of the officers of the court, instanter. Now, to effect this first step in a cause, in England, the plaintiff, as is well known, is obliged to have recourse to very complicated legal machinery. First, if he resides in the country, he is to apply to his country attorney, who begins with what is called "taking instructions." gentleman then writes these instructions' to another attorney in London, called his town agent, who attends and purchases the writ at the proper office, and sends it down into the country enclosed in a letter. A copy of this writ is then served on the defendant, and an affidavit of such service is made. But after all, the copy of the writ conveys no very explicit information to the defendant, of the real case of action. To become acquainted with this he is obliged to wait for a particular of the plaintiff's demand, and for the declaration, before he is in a condition to plead, or answer the summons. It is thus seen, that notwithstanding the late improvements, this triple process is as grievous as it is unnecessary, since the French assignation, as the summons is termed, answers all the useful purposes of the English writ, particular, and declaration. The plaintiff and the defendant appear before the French commercial court on the day specified, either personally, or by some persons who represent them under a special power of attorney, which power the plaintiff may give at the bottom of the summons. The defendant then makes his defence, and the cause is immediately tried and decided, unless it be necessary to adduce evidence on either side, in which case an early day is appointed for that purpose. If the contest arise, (as in commercial causes frequently happens to be the case,) on a dispute respecting the quality of merchandize, or the proper performance of work, the point is referred to an 66 Expert," that is, a person skilled in such matters, either mutually appointed by the parties, or nominated ex officio by the court, on the principle that cuilibet in suá arte est credendum. In the same manner, if the question be a disputed account, it is referred to an arbitrator accountant, named like the Expert, and these referees are directed to conciliate the parties," si faire se peut," if not, they respectively make their reports at a given day to the court, and on these reports the cause is decided. This saves the expense of bringing forward a host of contradictory witnesses, and consequently prevents frequent perjuries. If the action be brought on a bill of exchange, or promissory note, there is no necessity to call witnesses to prove the defendant's handwriting, for either it must be his signature, or a forgery. If the defendant pleads that his name is forged, the civil suit is stayed, until the trial of the forgery before a court of criminal jurisdiction. If he makes no inscription en faux, he necessarily admits the signature to be his writing, and all proof therefore becomes obviously superfluous. Thus no costs are uselessly incurred in adducing witnesses to prove signatures, which are not denied. When the judges come to a decision, the president pronounces the judgment, and delivers his plumitif, or minute of it, in writing, authenticated by his signature, to the Greffier, or Registrar, who enters it on record. The judgment contains a short statement of the facts, the application of the law to these facts, and the dispositif, or decision, succinctly, but clearly announced, in plain intelligible language. This prevents any difficulty in drawing up the sentence or decree, which, in some of the highest courts in this country, frequently occurs. If the sum in dispute does not exceed a thousand francs, or forty pounds sterling, the judgment is definitive. If it exceed that amount, an appeal lies to the Cour Royale, but all judgments of the Tribunal of Commerce may, under special circumstances, be directed to be executory non obstant appel, and the discretionary power of examining the parties themselves, dispenses with the necessity of a court of equity. III. Of the Rules prescribed by the Code for the Mercantile Conduct of Persons engaged in Commerce. It must be admitted to be the duty of every person in trade to keep regular books of his commercial transactions. The utility, and indeed the indispensable necessity of this is so obvious, as to need no comment. But yet the municipal law of England does not prescribe this duty to her merchants and tradesmen, as a positive rule of action. The inconveniences which arise from this omission are frequently most mischievous, more particularly in cases of bankruptcy. By the French code of commerce, art. 8, all persons engaged in trade are bound to keep a journal, in which shall be entered, day by day, their debts and credits, their commercial operations and transactions, their signatures to notes, their acceptances and indorsements, and generally a minute of all that is received or paid of every description whatsoever. It must also contain a statement, month by month, of all household expenses, and all this, independently of the other ledgers and account-books usually kept, but which are not indispensably prescribed by the law. They are further required to keep a letter-book, containing copies of all letters written by them, and to file regularly all the letters they receive from their correspondents. Again, they are enjoined by the Code to take, once in every year, an inventory, or account of stock, as also of their real and personal estate, debts, credits, and effects, and to copy this into a book, specially destined for this purpose, and to keep these books carefully for the period of ten years. By these prudent regulations, the affairs of a "Commercant" are prevented from ever getting into a state of confusion. To preclude the possibility of fictitious entries being made, ex post facto, all interlineations, erasures, and marginal interpolations, are strictly prohibited; and further, these books are subjected to the visa of a judge of the Tribunal of Commerce of the district, who marks the same by the initials of his name, or his paraphe, as it is termed. Nor does this exhibition of the books betray any of the secrets of trade to the inspecting judge, who does not peruse the entries, but merely identifies the book by the signature of his initials. Any omission or irregularity in keeping these account-books is visited with the severest punishment by IV. The Provisions enacted in Cases of Failure Every person in trade who suspends his payments for three days, is held to be in a state of failure, and his property is immediately sequestered for the purpose of being divided among the mass of his creditors, by order of the Tribunal of Commerce. But, if he has committed no fraud, and has neither neglected nor infringed any of the regulations prescribed for his commercial conduct, his stoppage is considered a misfortune, and not a crime or delinquency, one or other of which are requisite to constitute a bankruptcy, as this word in the French code always implies criminality or culpability, according to circumstances. There are two species of bankruptcy in the French sense of the term, a simple bankruptcy, and a fraudulent bankruptcy. If the "failli," or party who has failed, has been excessively extravagant in his household or personal expenses, an account of which he is bound, as we have seen, to insert in his day-book; if he has lost large sums at play, or in operations of pure hazard; if, after it results from his last inventory, or taking of stock, that his debts exceeded his credits by fifty per cent., it should also appear that he has taken up considerable sums of money on loan, or resold merchandize at a loss, or under the current price; if he has issued bills for money to thrice the amount of his credits, according to his last inventory; if he has not, within three days after stopping payment, declared himself in a state of failure to the Tribunal of Commerce; if he does not appear before his assignees within the time prescribed for that purpose; or if his books shall have been irregulary kept, but without fraud. In each of these several cases the law declares the delinquent guilty of simple bankruptcy, which subjects him, on conviction before a criminal court, to the punishment of one month's imprisonment at the least, or two years at the most, at the discretion of the judges before whom he is convicted; the costs of the prosecution to be borne by the mass of the creditors. A fraudulent bankruptcy consists in the entry of 1. Any fictitious losses, or expenses, or in failing to account for the employment of all receipts. 2. In the secretion of any sum of money, bill, merchandize, or effects. 3. In fabricating any fictitious sale, transaction, or gift. 4. In creating any fictitious debts to collusive creditors, without cause or value. 5. In purchasing real or personal property under a borrowed name. 6. In concealing his books, or 7. In not having kept any books. The punishment for fraudulent bankruptcy, is a condemnation to the travaux forcés a temps, that is, to the gallies, or to hard labour in the public works, for a limited time, generally seven or fourteen years. Collusive creditors are declared to be accomplices in the fraudulent bankruptcy, and are subjected to the same penalty. These enactments, it must be admitted, are extremely severe, but they tend to enforce order, method, and regularity in all commercial transactions, and provide an effectual check to curb that bane of commerce, the creation of fictitious credit. There is, besides, much good policy in subjecting the collusive creditor to the same punishment as the fraudulent bankrupt. The division of delinquencies in bankruptcy into two separate classes, cannot be too much commended; for, whilst gross im |