« السابقةمتابعة »
piastres; and that in pursuit of these, he will sometimes forego his ease, and at all times, give up his morals. “You have no security," says Beaujour, " in trading with a Turkish merchant, excepting his own morality; and that is weakened by the contagion of bad examples. The Turk pays only when he finds it his interest to establish a credit :-cease to trade with him, and he ceases to pay you. In every well-governed country, agreements are punctually cxecuted, and debts easily recovered ; but here, public authority reaches only the weak :the powerful set it openly at defiance the rich evade it secretly, and by the aid of gold. To make a good sale here, is not, as among us, to sell at a high price, but to sell to responsible men. The ablest merchant in Europe, not personally residing in Turkey, knows less of the commerce of the Levant, than any simple clerk, who is acquainted with the characters and circumstances of the persons with whom he deals; for the difficult part of the commerce is, to receite payment. In Turkey, as in Egypt, it is impossible to get money from a debtor, but by allowing him to incur a new debt. Nor will the case be at all mended, by alleging that the commerce we seek, is essentially in the hands, not of Mabometans, but of Greek and Armenian christians, and of Jews." Of these degraded people, we have a portrait from the same pen. “ The Greeks and the Jews,” says he, "are the moral plagues of commerce. The mind becomes indignant, when it is employed in scrutinizing their villanies. Why is there so little good faith in the markets of the south of Europe ? Because it is infested by these two plagues. Unhappy is the nation that, from any cause, is obliged to come into contact with them. Yet man is not a scoundrel, but when he is ill in society; and the first cause of his being so, is his insignificance there. Until such times, therefore, as they shall have recovered their social consideration, these two enslaved and despised nations will remain the most corrupt on the face of the earth. The Greeks, in particular, are daring in their enterprises, persuasive in their discourse, and seductive in their promises. They represent all their commercial operations under the most brilliant colours—they engage those who employ them in the most perilous adventures, and they finish-by ruining them."
4th. Our last head of objections, turns on the character of the Turkish government itself; because, if that be such as to render commerce insecure, there is an end to discussions on the wisdom of prosecuting it.
It has been long remarked by those who have had mcans and talents for observation, that this government was gradually
changing from an absolute monarchy, (or despotism of a single person,) into a military aristocracy, where the power is divided among many. Now, of all forms of government, this last, is the least auspicious to personal rights; because, by multiplying tyrants, it multiplies wants, which can only be supplied by new acts of injustice. In a government of this character, commerce cannot escape. The appearance of wealth is but a signal for exactions, and the head, as well as the fortune, of the merchant, is, not unfrequently, the tax paid for the extent of his business. When life and fortune are thus insecure, the means of preserving both become lawless. The man who is constantly in dread of confiscation, or the bow.string, does not hesitate to rob his neighbour, and take the chances of impunity. Does he make an engagement to pay money, and in the presence of witnesses ? His first care is to deter these by threats, or to corrupt them by promises and presents; and if no witnesses have been present, he contents himself with disavowing the transaction altogether. The sufferer must now recur to Cadis and Mollas for redress, but as these can only be approached, with the complaint in one hand, and a purse in the other, he often incurs the reproach of throwing good money after bad. Should the controversy be carried to a still higher tribunal, he must employ the same means, and encounter the same obstacles and at last, the decision will be in favour of the party who gives the most money. Arguments derived from law, cannot be employed in a country where no law exists, but the will of the Prince: and what can those of reason avail, when this prince sball, by invoking his beard, have rendered the decree he has given irrevocable? What would even a yankee trader, (with all his cuteness, natural and acquired,) do, in such a case? Would he place any confidence in the exertions of his Consul, (one of those lame ducks, whom we charitably send abroad, to recover the use of their limbs?) No-he has too much sense to expect any assistance from that quarter: But, as a dernier resort, he may apply to his Ambassador. The affair will then take a new importance, and a new expense from his interposition. It will, in fact, become a national business; and the whole Divan, from the Vizier and Mufti, down to the Captain Pacha, will take part in it, and either concur in, or annul the decision, as they may have been best paid by the plaintiff, or the defendant. Nor is this all-for a host of drogomans, (a certain tribe, who have the gist of tongues, but who, like our lawyers, will not employ it for nothing,) must also be satisfied. Should the result be unfavourable to the wishes and expectations of the Ambassador, the course most prudent for himself and his client, will not be that of com
plaint and remonstrance ; for the annals of diplomacy show, that the etiquette of the Turkish Court does not forbid a Grand Vizier to box the ears of a foreign minister,* or to hang his protégé under the windows of his palace.t
* La Haie-Ventelet, Ambassador of Louis XIV. † Lynche, an agent of Count Vergennes.
Art. III.-A Treatise on the Practice of the Supreme Court
New-York in Cwil Actions, together with proceedings in Error; By John A. Dunlap, Counsellor at Law. Vol 1. Albany. Backus. pp. 619.
NOTWITHSTANDING, at the first glance, a review of a treatise on the practice of a Law Court has only novelty to recommend it, upon further examination the practice of Courts will be found of more immediate interest to the public than they are generally aware; and though we cannot be suspected of undervaluing literary criticism, yet we are not so wanting in worldly wisdom as to think that which vitally affects property in all its varied shapes, is undeserving of our attention. In this country, where the spirit of curiosity, urged on by natural intelligence and a keen sense of interest, renders almost every man a dabbler in law, it is curious that Practice is as unknown to the public as if it were unworthy or impossible to be understood.
Practice is the manner of conducting a suit, partly as regulated by statutes, partly by standing rules and known customs of the court, which embrace the most necessary and notorious incidents, and partly by decisions upon particular and unusual points, upon which no previous regulation had been settled.
The great object in practice is to mature an asserted right to judgment; urging forward to this point, with the question clearTy stated, and the means of asserting or denying it fully prepared. That this object should be attained with as little delay as possible, ensuring at the same time a full and minute investigation, is the truest definition of the most beneficial justice : and in proportion as despatch of this kind is bestowed or withheld, the practice of a court is either a cause of congratulation, or a ground of complaint.
That justice is grievously delayed in the Supreme Court of this state cannot be denied. It arises from two causes : first
from the facility of obtaining time to do unnecessary acts, or too long a period to perform necessary ones; and next from the delay of business, by reason of more being pressed upon the Courts, at each period of sitting, than they are enabled to despatch. -If a defence be set up against a simple note of hand, nearly two years must elapse before the creditor can obtain judgment.
Our first proposition is, that too long periods are given to necessary acts, and that unnecessary ones are frequently permitted.
Our Courts have thought proper to fix the period of twenty days, to perform acts which, in most cases, might be performed, in as many minutes; thus if the sheriff is called upon by the attorney for the plaintiff "10 return the writ,” by which the suit commenced—the whole duty of which is, usually, to write two words on the back of it, sign his name, and then deposit it in the office next to his own,-he has twenty days to strive toward this time-requiring labour; at the end of said iwenty days, if special bail has not been given by the defendant, the plaintiff makes another request of the sheriff to have it done for bim, and, being too polite to hurry this officer, gives him another twenty days to do this also, which might be done conveniently as well in one, or two days, as fisty. For each of these acts, in England, six days only are allowed to the sheriff by the practice of the king's bench : here, we pique ourselves on des patch, and are very merry on the English courts for their old fashioned systems of delay!
By the practice of the king's bench the defendant must put in bail, so as to allow the plaintiff to proceed, four days after the return of the writ; we, in the kind spirit of liberality, allow him thirty-two days to perform the same act, unless the writ happen io be issued and made returnable in the same term, in which case he has a few days less. At last, the weary plaintiff is permitted, in due form, to tell the defendant, on paper, that he owes him such a sum, on bis broken proasise or protested note; to which piece of novel and unexpected information, the defendant has twenty days to reply, that it's false: In the English king's bench, to execute this form of a minute, four days are allowed. Several other periods, each of twenty days, may in like manner be taken, according to the readiness, or difficulty, of forming the issue.
Now this time-consuming trifling is very absurd : every unnecessary day is cause of serious risk, or loss, to one of the parties,—for it seldom happens that both are anxious to end the affair. We do not wish to be understood to say, that all cases admit of equally
rapid proceeding; but this we do say, that all cases ought to be governed by the same principle--despatch,--and cases of difficulty, requiring delay, should form examinable exceptions. For instance, suppose only two days, in all cases, to be the time allowed to plead, the proper officer could in his discretion extend the period, according to the exigences of the case; which he even now does, in very particular cases, where twenty days are not sufficient, --but such cases are not in the proportion of one to twenty. Other delays are also oppressive : commissions to obtain testimony in distant places, are often taken out causelessly, ignorantly, or vexatiously, upon a formal affidavit. Now, we do not mean to point out how this can be remedied—it is sufficient for us to allege the fact:--perhaps by referring the parties to a Judge at his chambers, who might examine into the nature of the complaint and defence, and then certify, on inquiry, the materiality or futility of the hopedfor testimony.
But of all abuses, “ the greatest is behind.". So far, the poor plaintiff has worked and won his way, against adverse currents, and ripples of sundry twenty-day rules,-motions, applications at chambers, technical delays, &c. &c.—and thinks," good easy man,” he has fairly cornered his slippery adversary, for a home below, by a “ notice of trial.” Mistaken hope ! Just as his attormey is arming himself, with the denied promissory note, believing, nay knowing, that no defence exists, he is struck down with the heavy tidings that " an affidavit of merits has been filed." This desperate document is couched as follows: “ A. B. Defendant in this suit, being duly sworn, deposeth and saith, that he hath a good and substantial defence on the merits of this cause, as he is advised by his counsel, and verily believes to be true.”
The plaintiff's attorney then informs his luckless client, that all hope of speedy justice is at an end; that the cause must take its regular course on the calendar, before it comes on to trial; that in the mean time he may take a voyage to China, or go travel in Europe, at his election—for most certainly his suit will not be tried for twelve or eighteen months.
Time,-never tiring and steady-footed time, that not even a Supreme Court defendant can escape,—at last beards this meritorious inaker of affidavits:—the cause is called on, the plaintiff's counsel, learned in the law, springs to combat, and lo!-this heretofore threatening defendant, and his “ good and substantial defence on the merits, like a sensitive plant on being touched, contracts his dimensions—he quietly permits the plaintiff to take an inquest, which, eighteen months preceding, his oath prevented !
The above case is one of no unfrequent occurrence; but there is sometimes the decency exercised of a sort of faint attempt at a