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was distinctly heard on the steps of the court-house."

In the year 1801, Mr. Whitney sold the right for the state
of South Carolina to the government for the small sum of
fifty thousand dollars. In the following year he made an
arrangement with North Carolina for a tax of two shillings
and sixpence on every saw * employed in ginning cotton m
that state ; and in 1803, he made a similar arrangement with
the state of Tennessee.

Soon after this, the legislature of South Carolina, in con-
sequence of the representations of interested individuals, sus-
pended payment of the balance due Mr. Whitney (thirty
thousand dollars), and instituted a suit against him and his
partner, Mr. Miller, for the recovery of what had already
been paid to them, requesting at the same time by message
the cooperation of the states of Tennessee and North Caro-
lina. The request was complied with by Tennessee ; but
the legislature of North Carolina, to their honor be it spoken,
amid this general and iniquitous scene of persecution, calmly
expressed their opinion, that " the contract ought to be ful-
filled with punctuality and good faith."

South Carolina also retraced her steps, and at a succeed-
ing session of the legislature, it was voted, "that the contract
[with Miller and Whitney] be now fulfilled, as in their opin-
ion it ought to be, according to the most strict justice and
equity."

From these states, therefore, something was received.
The whole amount, estimating the labor of one man at



* Some of the gins had forty saws.



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1833.] Story's Commentaries. 829

twenty cents a day, being, as he calculated in 1812, some -
thing less than ttie value of the labor saved to the United
States in one hour by his machines then in use. And of the
suras thus received in the Carolinas, a large poition was ex-
pended in prosecuting his claim in the state, in which he had
first made, and where he had first introduced his machine,
and which had derived the most signal benefits from it.
From this state — the state of Georgia — Whitney received
nothing.

In 1798, Mr. Whitney, wearied with the labor and vexa-
tion attending the pursuit of the prospects, which were at
first so promising, of realizing an independent property, from
an invention which showered wealth every where but on
the inventor, betook himself to another occupation, — the
manufacture of arms. His progress in this undertaking, we
do not propose to notice here, observing merely that it was
successful, and afforded him a competent fortune. He died
at New Haven, Connecticut, in January, 1825; and on his
tomb is inscribed, " The Inventor of the Cotton Gin."

Such is a short abstract of a part of this '^ Memoir," the
details of which are uncommonly interesting ; and we repeat
the hope that it may be published separately ; that the name
and history of a man, who was an honor to his native state
and country, may be more generally known ; that honor may
be given where honor is due ; and that the injustice of states
or individuals may be held up as a fit subject for the only
punishment that can reach them, — the general reprobation
of mankind.



Art. XII. — Commentaries on the Law of Bailments^ with
Slmtrations from the Civil and the Foreign Law. By
Joseph Story, LL. D., Dane Professor of Law in Har-
vard University. Cambridge. Hilliard b Brown. 1832.
8vo. pp. 450.

The design of the author of these "Commentaries," as stat-
ed by him in his Preface, is " to present a systematical view
of the whole of the common law in relation to Bailments, and
to illustrate it by, and compare it throughout with, the civil
law and the modern Jurisprudence of continental Europe."
The subject is one of considerable extent, and forms a very



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880 Story i Commentaries on the l^t^$

important branch of the science of jurisprudence in every
civilized community. Not only so, but it is one of frequent
occurrence in the daily intercoui-se of business and the neces-
sary differences and collisions that thence arise.

But however valuable a knowledge of this part of the great
system of law may now be considered, from the widening
and diversified relations of society, it is chiefly of modem
growth in that country from which we have derived the com-
mon law as our inheritance. In early times in England, the
whole science was narrow in its limits and contracted in its
operations. Commercial adventures, whether foreign or do-
mestic, were few and small. Manufactures and trade were
confined to the supply of the actual wants of the population,
and were in fact chiefly in the hands of foreigners. Money
was scarce and valuable ; credit was neither asked for nor
understood ; and the mode of transacting business, and trans-
mitting funds by means of bills of exchange, was a mysteri-
ous affair, and bad its origin in another quarter.

At this time the feudal system prevailed in its full vigor.
The country was chiefly agricultural. Hence the negotia-
tions and the suits at law that were most common were those
relating to the transfer of real estate. The nobility and the
clergy were the great landholders, and those who held under
them bad but very limited rights, and were but little above
the present serfs of Russia, either in property or privileges.
All matters of trade were looked upon with contempt, and
were managed principally by the despised Jew, who weighed
out his gains as a set-off and consolation for the insult and
indignity that were his constant portion, and only parted with
his treasure to escape torture or death. It was not the age
of merchants sitting in kings' palaces, lending millions of
money to potentates and powers, takinc empires in mortgage,
and controlling the question of war and peace.

As commerce increased in extent and value, this class
gained strength and power, and new rights and obligations
sprung up. Commercial law took root and spread wide, and
adapted itself to the new and increasing demands of a busi-
ness community. The law of Bailments became an impor-
tant branch of commercial jurisprudence. It was not native
in Endand. Many, nay most of its principal and beneficial
provisions were derived from the Roman Code without
acknowledgment. For it has been fashioniJ>]e with the



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1883.] Law ofBoilm€fU9. 331

English writers, from an early period to the present time, to
decry the Roman Code as full of arbitrary provisions, and as
deriving its authority from the will of the Emperor. Hence
much of the law of Bailments has been resolved into the
custom of the realm, through the influence of a narrow spirit
that would not confess the true origin of that law. Indeed,
in this department of jurisprudence, as well as in insurance
and maritime law generally, much that is excellent and equit-
able has been silently incorporated into the body of the com*
mon law from foreign sources.

The earliest treatise upon the law of Bailments in Eng-
land is contained in Bracton's celebrated work De Legibus
et Consuetudinibus Angluty written in the reign of Henry
the Third. A few, very few cases are also found scattered
through the volumes of the old common law Reports. But
thus far there was nothing like a systematic arrangement of
the law ; all was imperfect and confused. The points that
had been decided were not sufficiently numerous to form the
basis of a system by an induction of particular cases. But
what is generally gained in this respect by time and opportuni-
ty was executed and brought to a good degree of symmetry
by the single effort of a most learned and able Judge. Lord
Holt, Chief Justice of the Court of King's Bench in the reign
of Queen Anne, in the great case of Cofgs v. Bernard,^ gave
order and arrangement to the law on this subject. He struck
out, as has been forcibly said, at a single heat, the whole of
the law of Bailments. This is, indeed, rather exaggerated
praise ; though it must be confessed that what he accom-
plished was highly praiseworthy and remarkable for a com-
mon lawyer, although it was a mere exposition of the sound
doctrine of the civil law on the same subject that had been
discussed and decided ages before. It was, however, a bold,
happy, and successful effort. Blackstone in his '' Commen-
tanes" devotes but a few pages to the subject, and fails to
treat it according to its merit and importance.

The only distinct treatise on Bailments, with whk;h we are
acquainted from an English author, is the work of Sir William
Jones, that learned and upright jurist, that most distinguish-
ed scholar. The first edition of this work was published, we
believe, in 1781, and immediately obtained a high and de-

* 3 Lord Raymond's Reporti, p. 900, &c.



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S32 Story^s Commentaries on the [April,

served celebrity. It is a systematic and lucid arrangement of
the law of Bailments, written in a pure style and abounding
in learning. It is deeply imbued w^ith the principles and
spirit of the civil law from which it is chiefly drawn, and with
which he was desirous the common law should be in con-
formity. But this circumstance, as Judge Story well remarks,
^' has sometimes appeared to mislead his judgment, and has
sometimes disturbed the. clearness of his reasoning." And
besides, it is added, the work is a mere outline.

In this country the subject has been briefly touched upon
in about forty pages, by Chancellor Kent, in his usual feli-
citous manner, in his very valuable Commentaries. But a
new and more full treatise was required by the state of the
law, and one which should embrace in a methodical manner
the whole law of Bailments, with the later decisions of the
Courts. And some estimate may be made of the growth of
this branch of jurisprudence from the fact, that Sir William
Jones cites only about a score of cases from the common law
Reports, they being nearly, if not quite, all that were adjudg-
ed up to the time when he wrote ; while Judge Story cites
somewhat over four hundred and sixty cases, from the Eng-
lish and American decisions, besides much more numerous
authorities from the works of foreign jurists.

In the work before us Judge Story first speaks of the im-
portance of this branch of law as lying at the foundation of
many commercial contracts. He defines a bailment to be,
'' A delivery of a thing in trust for some special object or
purpose, and upon a contract express or implied, to conform
to the object or purpose of the trust." (Page 2.)

Bailments, it is added, are of three kinds, viz. 1. Those
in which the trust is for the benefit of the bailor ; as deposits
and mandates. 9. Where the trust is for the benefit of the
bailee ; as gratuitous loans for tue ; and 3. Where the trust
is for the benefit of both parties ; as pledges or pawns, and
hiring and letting to hire. The author then proceeds in the
remainder of the first chapter to discuss at length the obliga-
tions of the bailee in the different sorts of bailments, and the
different degrees of diligence required of him under each
class of bailments.

The second chapter treats of Deposits. A Deposit is de-
fined to be ^^ a naked bailment of goods to be kept for the
bailor without reward, and to be returned when he shall



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1832.] Law of BaUmenis. 888

require it." Here the identical article delivered is to be re-
turned ; but in a muiuum, which is also a species of deposit,
where the article is consumed in the use, as com, wine, be,
a like article of equal quality is to be returned. The whole
law on the subject of this chapter is stated at length.

The Third Chaptei^ is upon Mandates^ that is, ^' the bail-
ment of personal property in regard to which the bailee en-
gages to do some act without reward ; " or in the language
of Chancellor Kent, it is ^' when one undertakes without
recompense to do some act for another in respect to the thing
bailed." In a deposit the principal object of the parties is
the custody of the thing ; in a mandate the principal object
is labor and services to be performed by the bailee about the
article delivered.

The Fourth Chapter discusses the law of Gratuitous
Loans, This is defined to be '^ a bailment or loan of an
article for a certain time, to be used by the borrower without
paying for it."

The Fifth Chapter is upon Patvns or Pledges. The best
definition of this branch of the subject is the one given by
the author, viz. that it is '^ a bailment of personal property,
as security for some debt or engagement."

The last Chapter, and much the longest and most import-
ant, treats of Contracts of Hire, Under this general bead
are embraced, 1. Hire of things. 2. Hire of labor and ser-
vices. 3. Hire of custody ; as in the cases of agisters of
cattle, warehouse-men, wharfingers, factors, and bailiflSb.
4. Carriage of goods. 5. An enumeration of exoepted cases
from the common doctrine of hire, which are embraced in,
6. Postmasters. 7. Inn-keepers. 8. Common-carriers by
water and by land. 9. Carriers of passengers ; as in stage-
coaches, steam-boats, and passenger-ships. 10. Special or
quasi bailees for hire, relating to the possession of property
by captors, revenue officers, prize-agents, officers ol courts,
and salvors.

Under each head of his work the author discusses IuUf
the rights and obligations of the respective parties; their
duties and responsibilities as derived from the implied c<m-
tract, and how far they may be modified in effect and extent
by express agreement ; the degree of diligence required of
the bailee, the various remedies by action, the burden of
proof, &c. He has embraced the whole of the common law

VOL. I. Ko. IV. 43



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IM Start/*s Qmmentaries m the [April,

of bailments in the most complete and methodical manner^
and has shed a bright lieht over the entire subject. Nor
18 this all. He has embodied in his work a luminous com-
mentary on the civil law in relation to the doctrine of Bail-
ments, and on the derivative codes of France, Germany,
Spain, and Scotland. He has pointed. out how far the com-
mon law and the civil law differ, the greater extent and re-
finement of the latter, its nice speculations, and its more diver-
sified aspects. He has bestowed upon the treatise of Sir
William Jones the high praise it merits, and has carefiilly
eorreeted the errors into which that learned jurist was be-
trayed by an overweening love of Justinian's Code. He has
commented with ability upon the doubtful and anomalous
adiudications of the common law, and assigned his reasons
with precision and force.

In regard to arrangement, and clear and full conception of
the law of Bailments, Judge Story's ** Commentaries '' are of
the highest value. They are also written in a simple and
unpretending but pure style. They are a happy illustration
of the union he recommends of ^' the elaborate, theoretical
fiilness and accuracy, and the ascending to the elementary
principles of the science,'' which characterize the works of
foreign jurists, and what are called the practical treatises of
the common law, " which, with few exceptions, contain little
more than a collection of the principles laid down in the ad-
judged cases, with scarcely an attempt to illustrate them by
any general reasoning, or even to follow them out into cd-
latend consequences." It is in this way only that legal
commentaries, by combining the two modes, can be rendered
bteresting to the general scholar and man of literary taste,
out of the walks of the profession. The dry and somewhat
technical features of the common law would thus be divested
of some of their terrors, and philosophy would enlarge its
boundaries and its power. The very valuable Commentaries
of Chancellor Kent, on American law, form, in like manner, an
apt illustration of the advantages of the union of which we
have spoken ; and the fulness of time is come when we
should set an example to our English brethren in this re-
spect, which they may at no distant day be inclined to fol-
low, as they are already silently following us by. copying our
improvements in the code of criminal law.



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1832.] Law of BaUmenis. Mt

The ^^ Commentaries/' of which we have gifen a alighft
notice, are the Jirst fruits of the Dane ProfesscMrship of law
in Harvard University. With such first fruits we look for*
ward with pleasure to those subsequent and more important
treatises, especially on national and constituticmal law, that
are required by the venerable and learned founder from those
who shall fill the office of Professor. No one is more com-*
petent to the whole duty than the present incumbent, whose
entire professional career has been full of assiduous and en-
lightened labors. American jurisprudence is largely indebt-
ed to him for its healthful and vigorous growth, and looks to
him for future and extensive benefits.

The present volume has but little to do with local law*
It is on the contrary upon a subject of almost universal ex-
tent and obligation, and will therefore speedily pass into gen-
eral circulation. It will be of equal value and of almost
equal authority in every part of the Union. Besides, it is
9Ljvil treatUey and one that was much needed, particularly
by the younger members of the profession, and extends to
them in some good degree the benefits enjoyed by the stu-
dents at the Law School of the University under the more
immediate instruction of the author.

We will quote in conclusion the apposite closing remarks
of our author, briefly showing his estimate of the importance
of a knowledge of the civil code to the American jurist.

''These 'Commentaries upon the Law of Bailments' are
now brought to a conclusion. Upon a review of the whole lub-
ject it will at once occur to the reader, what a great variety of
topics, discussed in the civil and . foreign law, remains wholly
unsettled in the common law. He will also be struck with the
many ingenious and sobtile distinctions, singular cases, refined
speculations, and theoretical inquiries, to which the free habits
of the civilians conduct them in the course of their reasoning.
Let it be remembered, however, that if some of these distinc-
tions and speculations and inquiries seem remote from the practi-
cal doctrines of the common law, they may yet be of great utility
in the investigation and illustration of elementary principles.
They employed the genius and exhausted the learning of many
of the greatest jurists of all antiquity ; and were thonght worAy
of being embodied in the texts of Justinian's immortal Codes.
In modern times the noblest minds have felt a life of laborious
diligence well rewarded by gathering together illustrative com-
mentaries in aid of these texts. What, indeed, was juridical



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886 Judge Thacher^i Charge. [April,

wisdom in the best days of imperial Rome ; what is yet deem-
ed the highest juridical wisdom in the most enlightened and
polished nations of continental Europe ; ooght not to be, and
eannot be, matter of indifference to any, who study the law,
not as a mere system of arbitrary rules, but as a rational sci-
ence. The common law has silently borrowed many of its best
principles and expositions of the law of contracts, and especially
of commercial contracts, from the Continental jurisprudence.
To America may yet be reserved the honor of still further im-
proving it, by a more intimate blending of the various lights of
each system in her own administration of civil justice." pp.



Abt. XIII. — A Charge to the Grand Jury of the County
of Suffolk for the Commonwealth of Massachusetts, at
the opening of the Municipal Court of the City of Bos-
ton, on the First Monday of- December A. D, 1831 .
By Peter Oxenbridge Thacher, Judge of that Court.
Boston. S. N. Dickinson. 1832. 8vo. pp. 20.

The Municipal Court, over which Judge Thacher has for
several years presided, has original jurisdiction, concurrent
with the Supreme Judicial Court, of all crimes not capital,
arising within the county of Suffolk. It was created in 1799,
in oroer to noeet the wants of a metropolis and sea-port, and
to advance the means in criminal cases of obtaining right and
justice promptly and without delay.

The Charge before us was delivered to the Grand Jury at
the opening of the Court in December last. It reminds us
of those beautiful discourses delivered by Sir William Jones
to the grand juries of Calcutta. It embraces a brief and
succinct view of the duties of jurors in the administration of
justice, appropriate remarks on punishments, and a pretty-
full consideration of the law relative to the preservation of
the public peace. This last is a topic particularly fit to be
laid before the grand jury, and one in which all the well-inten-
tioned part of the community ought to feel a deep interest.
We have here, indeed, none of those exciting causes which
occasion such disorder and outrage in that land from which
are derived our language and our hiws. Neither have we an
uninformed populace, ever ready to be stirred up to mutiny.
With us there is knowledge, and equality, and an open field



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1832.] Judge Thacher^s Churge. 837

for talent and industry, with an attendant persuasion, that
the law is the great guaranty of all that is possessed, and
that its sovereignty, " crowning good, repressing ill," must in
no way be impaired. This enlightened and pervading pub*
lie opinion is a stronger conservator of the peace than the
whole posse of horse-guards and special constables, which the
police of London can call forth. Yet it would be as unsafe
to rely upon this alone against domestic commotion, as care-
lessly to depend upon the broad Atlantic for our defence
against danger from abroad. The riot at Providence last
September tells us loudly, that the mob has its power with
us, and that the agency of an efficient police is needed to
restrain it.

Judge Thacher has clearly developed the authority of the
civil officer in calling out all good citizens to render aid in
the execution of the laws. " His power is proportioned to
the exigence of the case. The force to be applied is to be
regulated by his discretion, and whatever force used by him
can be shown to be necessary for the restoration pf the
peace, will be justified by the occasion." This is a power de-
rived from the common law ; and is not unlike, in its character
and extent, that entrusted in pressing times to the Roman
consul, when he was bidden to see that the state came to no
harm. The sufficiency of this power Sir William Jones has
•established in his short tract, entitled ^' The Legal Mode of
Suppressing Riots," suggested, as he informs us, by the
fearful commotions of 1780, when the Parliament itself was
beset by an infuriate mob, the courts of Westminster Hall
interrupted in full Term, the prisons broken open, the houses
of the first magistrates given to pillage and flames, and
the streets made to flow with the wasted contents of brew-
eries and distilleries, — the whole presenting a picture very
like to that of Rome in one of her worst days of anarchy,
'^ urbem sine legibus, sine judiciis, sine jure, sine fide, relic-
tarn direptioni et incendiis."

Judge Thacher's '' Charge " contains reflections, princi-
ples, and facts, interesting to all. We wish to see a more
!;eneral concern felt for what pertains to the law ; and we
ook to the publications of tracts of this character, as likely,
in no small degree, to produce this concern. In this age of
lyceums and lectures^ we wonder that no means are taken to
extend a knowledge of the first principles and elements of



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338 Jndgt ThacherU Charge. [April,

those lawsy which are the guardians of the lives and property
of us all, and which, with a just severity, suppose no man
ignorant of their provisions. The Roman boys, so Cicero
tells us, were obliged to learn the Twelve Tables by heart ;
and it was a^ similar feature in the Code of Minos, which
recommended it to the admiration of Plato. An act was
passed in the early legislation of Pennsylvania, '* for teach-
ing the laws in the schools." We know nothing of the
consequences of this enactment ; but we greatly respect its
spirit. The law is a science which can be made in a degree
interesting to all. The elements of natural, international,
and constitutional law, and the general doctrines which gov-
ern property, real and personal, contracts, sales, and particu-
larly the administration of criminal Justice, can be displayed
in a view as instructive and entertaming, as any of the dis-



Online LibraryJoseph Lyon MillerAmerican monthly review → online text (page 35 of 54)