The Sun.
London, England, 1856-10-06 00:00:00

LONDON, MONDAY EVENING, OCTOBER 6, 1856.

I shall now refer to the latter .only, the working of which
I have myself observed and studied, during a recent resi-
dence of four weeks in Paris. Simple as the machinery of
these tribunals is, I should, nevertheless, have experienced
great and indeed insuperable difficulties in my researches,
had it rot been for the numerous facilities most kindly
and liberally afforded to me. Our limited time pievents
my entering here into anything like ri; full exposition 01
principles which should govern tribunals of commerce,
muca less of the details of the working of -the French tri-
bunate. Tho printed statement alreadeareferred to cop-
tains some developments on both these points. I will now,
therefore, merely refer to a few leading matters. As re-
gards their organisation, the judges should be commercial
men, elected by the commercial world, and selected in snob
a way as to represent, in the highest chigoe, its integrity,
zeal, and intelligence. As a means of securing this, it is
my conviction, based on personal observation end reflec-
tion, and strongly corroborated by tho experience of the
French tribunals and the testimony of distinguished judger
in France, that the office of the commercial judge should
be purely honorary. The efficiency of the mercantile tri-
bunal depends on the high character and perfect disinte-
restedness of its presiding judges. It requires that their
position should represent an office, not n place only- The
experience of France shows that an honourable ambition
and a sense of duty are motives sufficiently strong to in-
duce men of the highest position in the mercantile world,
and actually engaged in commerce, to devote these func-
tions and an =wont of time for which nopecuniarf remune-
ration could afford an adequate recompence. There the
judges are very generally, though by 'bo means always,
heads of established firms, the priu4o management of
which is entrusted to junior partners or to confidential
agents. This, in fact, is one of the principal reasons
which render it desirable that houses once established
should be perpetuated either in the family of the founder
or by adoption; for it is obvious that the founder of
a great concern can rarely have the time, as he often
wants the ability and the inclination, to perform those
, public functions which attach to the possession of property.
Public opinion spontaneously recognises the existence of
such unremunerated offices as attaching to largo estates in
land; and if a similar recognition is yet wanting with refe-
rence to capital in personalty, this results not from any dif-
ference founded in the nature of things, but from inherited
prejudices destined to be overcome by the spread of atruer
social philosophy, and the growth of a higher morality in
society, and especially in the mercantile world. There is
perhaps no prejudice at once so absurd and so baneful as
that which limits the notion of the patrician class—of the
gentlemen, as we say—to the owners of land, instead of
extending it (as fact and morality alike require) to the
possessors of capital, whatever shape it may take, and
whether employed in agriculture, in manufactures, in com-
merce, or in banking. It is obvious that, in addition to
other advantages, the presence on the bench of men
retired
them-
selves actually engaged in industrial pursuits, would
afford
a coestant stimulus to the despatch of business. But the
commercial judicature should also comprise another most
important element—l mean men advanced in years,
from,actual business, but still in the enjoyment of sufficient
physical vigour, and possessing the inestimable advantages
of experience and matured thought. This is a class which
,-in the present state of society is often reduced to the sad
alternative either of continuing in a mercantile career
which would be more fitly handed over to younger men, or
of exchanging it for a life of listless ease,: unhappy because
without au object, and wholly removed from the sphere of
their former activity. There is another condition actually
realisedin the French and Belgian ' Tribunals of Commerce,
and Which would be of peculiar importance in England.
It is' this— that a tribunal which is expressly instituted as
furnishing the best means of effecting a reform, not in the
administration of the law only, but alternately in tho law
itself, should contain no legal element whatsoever as part
of its own constitution. The great thing needed with us
is to educate the commercial world to that point of just and
indepedonnt dignity which will enable it to castoff the legal
incubus, and to fill the social position which it ought to
take, not for the sake of commerce alone, but for that of so-
ciety itself. In order to effect this, it is, I believe, of the first
importance that no judge presiding over the commercial
tribunal should be a member of the legal profession ; nay,
farther, that no barrister should occupy any position in the
court which would officially entitle him to tender legal
advise. In the French and Belgian Tribunals of Com-
merce the chief registrar is generally an advibcate in point
of fact, and the judges sometimes, though I believe rarely,
consult him on points of law. They are not, however, in
any way bound to do so, and have steadily declined the as-
sistance of any such official functionary, feeling that his
presence, by altering the character, would materially les-
sen the usefulness af the commercial tribunal. It would
tan ito increase that subjection of 'tab -oolira4sesiiitellhatirei
toga spirit which, even in France, exists sto this day. I
maylmention, however, that though the employment of
any professional adviser before the tribunal of commerce
is ptlrely options), there does exist in any of the princi-
pal French towns a limited number of gentlemen callod
agrees—barristers by profession, who, being designated by
the tribunal as persons enjoying its confidence, are prae-
tically employed in most cases of difficulty. I may be per.
mittd to say that I was much struck by the rapid and
truly efficient manner in which these gentlemen conducted
the numerous and important cases confided to them. I
may also observe that their mode of conducting business
fuinishes an additional proof of the beneficial influence ex_
ercised by the presence of the commercial element, and the
authority of judges, who are themselves penetrated by the
commercial spirit. For the same reasons, it appears to
me, that the appeal—at least the primary appeal—from
commercial decisions should also be to a commercial court.
If time permitted I could give proof of the injurious effects
of carrying such appeals to the ordinary civil tribunals,
and also of the salutary influence which the tribunals of
commerce exert in correcting the technical and narrow-
tendencies of the civil courts of appeal in France. Tribu-
nals of commerce possess, by virtue of their organisation,
several very important advantages over the ordinary civil
tribunals; advantages inherent in their constitution as
commercial courts of justice. Special juries, even at t. se
best, aro no equivalent for tribunals of commerce. We
all know the practical difficulty of obtaining satisfactos
speCial juries adapted to try commercial cases; and I may-
remark that the time thus given by merchants should Diet
be forgotten, when that required for sitting as commercial
judges is made a matter of objection to tribunals of co ex-
mercer. Bat, apart from these considerations, it is evide at
that the special jury never can take tho place of the con a-
inercial court, because the jurors are judges of the fac t
onlja and not of the fact and the law. They are obliged
first to accept or reject the proof of facts submitted to
then; according to purely legal rules of evidence, often
whClly at variance with commercial usage ; and they are
next compelled to judge these scanty or partial facts ac-
cording to technical rules which are not unfrequently ,
wholly insufficient for the administration of substantial
justice between the parties, and (like the rules of evidence)
and not in harmony with the principles which really guide
coMmercial men in their mutual dealings. Tribunals of
commerce are also in the best sense courts of arbitration,
foil the opinion of the commercial world is there colleen-
tratted in its most intelligent and devoted representatives,
and the constitution of these courts enables them to decide
difficult questions, affecting either the general relations of
commerce or its special branches, very frequently by a re-
feience to one of the judges themselves selected for that
purpose,
or,in the most complicated cases, to an expert or
referee nominated by the tribunal. Such are the facilities
which this mode of proceeding affords for effecting amicable
a
number
varying
tt that af
ft
rt ofoh t
a e
lhoi
net
isege.
atdnk
tffirs
.dc ut
ta
one-halfni
nd obvious,complicatedarefisi suits,
moreover,
ly s
et
tldd by consen
that even by the parties arbitration can only be resorted to
where there is good faith, and has no application to those
lof arbitration presents an additions ifficulty in the way
11,
ices teesqiuni
swi
the h
Thet he
extremeintervention
ionfi
caanl
yudto. hf o
or iutra tiv
existingtri b ulna awl
of its use, for the remedy is often worse than the disease.
It is desirable to benefit by Ate experience of others, and
therefore I mention here that, after a trial of 50 years, the
French law which in relation to disputes between partners
smat
ions
dre
t.l
is
hoeervstoetiaari
tubt ie
rt
the
sha
net ioownha existingau beenwi
te:
iaantbetahon
dix;coorni:nelleelasireedifautthrieelel: ,
tribunals of commerce, which often dis-
tils, foregoing advantages
pose in a few minutes of
inherent
oases
i r t
ah eai
cut
stuir
nt
bdu. under
aßlt
sha
ofet
great
systemtmacommerce,
rac
are
the
,there,is onewhich distinguishes
e
d
kind, from the ordinary civil
jurisdictionwo l req. require eflparties
monthslotdnies for
iti:mll,lll:7tfitl:cilre:::stiatii:ollnroraercial affairs. It is this:
tribunals, in relation to . legal authority, they exert
These courts not only exercise commercial men. I du
na ot moraln7 wisnpfleuaekn coel tohl la
et
oimndmi re-er cc te u antmob, important
sei vtlues
erica which they exert on the iudustrial chiei, transac-
sitting as judges, but of that directed toward the . -ect
Lions brought before the court. It is indeed in thb zees..
that the real preeminence of the commercial court appeatra;
for, as I have myself frequently observed, not only does
the tribunal of commerce manifest a Taro discriminating,
amore just, and, t may tiddc a west ahe more kindly
feeling than generally prevails in the civil tribunals *hen
dealing with the trader, but we find in it truer apprecia-
tion of commercial morality, which, as we all know, is
very different from legal morality. Ido not mean to say
that the standard of morality now prevailing in the world
of commerce is what it ought to be—far from it ; but -If do
maintain that the tendency of the commercial tribunal is
continually to raise this standard, while,
I regret to raiy,
that the tendency of the legal tribunal is to lower it. It ire
both consoling and re-assuring to know that commercia I
law, not merely in its special usages, but in its general
and fundamental principles, is based on the custom o
COMI:1101reep The commercial law its colentially the prow l

of the commercial mind, observing, meditating, and prov-
ing, during a long series of successive generations. Jurists
and lawyers have no doubt rendered valuable services, by
systematising the usages of commerce, and acting as the
intelligent organs of mercantile opinion. But it is easy to
over-estimate these services. The successors of Lord Mans-
field—the founder of commercial jurisprudence in England
—distinguished as they have been for their talents and
learning, instead of improving the mercantile law, have
perverted and injured it, by introducing technical subtle-
ties and metaphysical distinctions profoundly foreign to its
true character and object—a deplorable resalt, indeed, but
one which inevitably followed from a system which sepa-
rated the administration from the judgment of commercial
affairs, and confides the latter to lawyers technically con-
struing rules of law framed by themselves. If this state-
ment appears to be in contradiction with what I have ad-
vanced before, this seeming variance will at once disappear
wh(a we consider that the existing mercantile law of Great
Britain and Ireland consists of two elements perfectly dis-
tinct in their origin and very different in their nature.
These are, Ist, the genuine and commercial element ; 2d,
the spurious legal element added to this. Any one who
compares the laws of bills anal promissory notes, so admir-
able in its general conception, with the law of fixtures as
regards ostensible ownership incases of bankruptcy, will at
once perceive the reality of this distinction, and appreciate
its important bearing. The practical conclusion I would
draw from it is this--that as the source of the existing
vices of our mercantile law lies in the subjection of the
commercial mind-to the legal mind, so the remedy consists
in shaking off the subjection. In a word, that which the
commercial mind has made, it alone can regenerate. Having
already occupied so much of your time, I will only very
briefly allude to some difficulties alleged to stand in the
way of the immediate establishment of tribunals of com-
merce in this country. The most important of these, I
think, is this, that the absence of a systematised code in
England renders the creation of tribunals of commerce im-
possible until such a code be framed. This idea, though it
receives the support of distinguished names, is, I believe,
completely founded in error. My answers to the objection
above stated are shortly these :—First, that the English
commercial law has sufficient fixity and unity in essential
particulars to enable tribunals of commerce to work effi-
ciently. Secondly, that tke systematic study of the written
law of commerce has been rendered sufficiently accessible
for merchants by means of the excellent manuals which act
already possess. Thirdly, that the legal doubts which are
alleged as difficulties in the way of the administration of
the commercial law by commercial tribunals, furnish in
truth the most conclusive reason for establishing such courts,
since these doubts and difficulties spring not from
the nature of mercantile transactions at all, but from

;hose habits of legal subtlety, to discard which would he

the first and most beneficial effect of applying the com-
mercial mind to commercial affairs. It is true that sub-
stantial justice is often a refined justice, but there is a
wide difference between those abstractions and distinctions
to which legal metaphysics give birth, and the broad and
simple principles of equity, by which a clear-sighted and
comprehensive mind grasps and marshals the most com-
plicated facts. Fourthly, I say that the French Code de
Commerce," however admirable and useful it may have
been in some respects at the period of its composition, is
far from satisfying the commercial exigencies of the pre-
sent day, and is moreover now loaded with judicial deci-
sions and legal commentaries. Fifthly, that no commercial
code can be efficiently or usefully constructed unless it be
preceded by a practical uniformity of opinion and usage
throughout the mercantile world in essentials. Sixthly,
that a code for merchants must be not only interpreted, but
made, by merchants. Seventhly, that the real remedy for
the existing evil consists in creating, or more truly in de-
veloping, a vigorous and sound public opinion in the com-
mercial world, as constituting the indispensable basis of
all progress in our times, and that this would be accom-
plished by the creation of tribunals of commerce, as organs'
of the commercial world represented in them by its most
devoted and intelligent members. Eighthly, and
lastly, I maintain that the composition of a commercial
code, in the first instance, is not necessary for the effi-
cient working of tribunals of commerce ; while on the
other hand the creation of such tribunals would greatly
tend to introduce unity both into the theory and the prac-
tice of commerce, and would facilitate the ultimate adop-
tion of a uniform system of commercial law, based on in-
telligible and universal principles, capable of embracing
all the relations of commerce, whether national or inter-
national. In conclusion I trust we are all convinced that
the principle we advocate is true, and that the movement

for its realisation in Great Britain and Ireland is oppor-
tune. I have already stated my conviction that the great
thing needed is the devel'o'pment of a sound public opinion
in the hoghotar.-1.4 wend, 90.-4 that 41.0--.6.7aL,hm.nt of
tribunals of commerce will do more than anything else to
realise this object. But this same public opinion, the pro-
gressof which will be the result of commercial quarts, con-
stitutes the means, and the only means, by which their
institution can be obtained. We must, therefore, first
apply this great engine of modern times with all the sus-
tained and concentrated force of which it is capable. To
call forth real public opinion wo need three things. We
acad.:, first, a genuine public; next we require sound con-
victlions, generous feelings, and the courage to carry them
out in obedience to the dictates of our coo science, and for
the sake of a cause which we believe to bo the cause of in-
dustry, the cause of justice, and the cause of humanity.
Lastly, for the full development of a public opinion wor-
thy of this great subject, and adequate to meet the exigen-
cies .of the task which it imposes on us, we require capable,
honest, and devoted organs to give it shape and expres-
sion. Do you, then, each of you in your own sphere, be-
come the organs of this movement ; aid this cause by your
commis, by your sympathy, and by your united action,
and it will not, I trust, be long before the British merchant
shall obtain his Magna Charta, his tribunals of commerce.
The CHAIRMAN, on behalf of the association, expressed
his thanks for the valuable and interesting paper which Mr.
Hutton had read. He regretted to see that the subject ex-
c e iotned vi so
nc
el i thtil sme
tyhmapa t
the thy,
thinb u t a he t
te
nhdaadn c e experienceat the eno
meeting
t h oaf-
forded no just ground for despondency. The association
for establishing tribunals of commerce WhS in a prosperous
state, and was now formed on a secure basis.
Mr. HUTTON, in acknowledging the thanks rendered to
him, expressed the great pleasure he should feel if by any
exertion on his part be had assisted in the accomplishment
of an object which he regarded as of great importance to
commercial interests.
The proceedings then terminated.

COLLISION AT SEA, AND LOSS OF
TWENTY LIVES.

LIVERPOOL, FRIDAY.
On Wednesday evening a large ship belonging to
Dublin, called the York, laden with timber, from Que-
bec, arrived in the Liffey, bringing intelligence of a
fatal collision which took place early on last Thursday
.morning between the ships Yeoman, of Liverpool,
;and the Helen Heilgers, of the same port, at a point
between the Tuskar Rock and Ballycotton, and
having on board thirty-two persons, who were the
survivors of the crews of those vessels. The Yeoman,
1,100 tons, commanded by Captain Colquhoun, was
on her passage from Liverpool to Castine, British
America, with a cargo of salt. The Helen Heilgers, of
about the same size, commanded by Captain Harris, with
a miscellaneous cargo, worth upwards of 20,000 k, was
homeward bound from Calcutta. About three on the
morning above-mentioned a strong breeze blowing, and
the weather being very' thick, the vessels came into
collision with each other. The Yeoman had her star-
board tacks on board, and the Helen Heilgers
was sailing very fast before the wind, and the
latter vessel struck the former violently at her fore-
, rigging, knocking in her side. Within eight minutes
afterwards the Yeoman went down. Four of her
crew succeeded in clinging to the bowsprit rigging of
the Helen Heilgers, but one of them is missing, and only
-three have escaped, the names of whom are John King,
'Thomas Jason, and Alfred Creighton. All the rest of
the ship's company, including the captain and officers,
numbering 19 souls, perished. The Helen Heilgers was
greatly injured by the shock, and the utmost efforts were
made with the pumps to keep her afloat. At 8 o'clock the
same morning the York came to her assistance, and took
off her captain and crew of 29 men, together with the three
sailors belonging to the Yeoman. After remaining for
upwards of two hours alongside the Helen Heilgers, the
York left her in a sinking state with 18 feet of water in the
hold, and the sea washing her gunwales. The surviving
sailors of the two unfortunate vessels were received into
the Sailors' Home. They spoke in terms of praise of the
manner in which they had been treated on board the
York by Captain Farlale a,,d his ship's company.

. .
1 ANOTHER COLLTSTON.—The kilip Bonita, Captain
Sturmley, which sailed from the Mersey on the morning
of the let instant, came in collision the same night,
when off Holyhead, with the ship Cambria, Captain
Hoskin, from Moulmein, and lost her jib-boom, cat-
. -ad, &c. She was compelled to return to port for re-
b..
The Cambria arrived in port safely, with only
psirs.
4er damaged.
her Wm- ..

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medicine vendors throughout the work I;London, and
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