Atlantic Monthly, Vol. 11, No. 65, March, 1863
by
Various
Part 5 out of 5
goes forth to its readers. Let all who adopt this aspiration remember
for what they ask. God was with our fathers, and sent them hardship,
peril, defeat, that, battling painfully therewith, they might become
great and fruitful men. Not otherwise can He be with us. From the misery
of our civil strife we may educe a future happiness, as well as a
present blessedness. The fierce excitement of physical action has been
contagious to the heart and intellect of the time. Realities have
presented themselves which can be met only by ideas. In the seeming
distant years of our old prosperity, a few men and women sought to
abolish slavery because it oppressed the inferior race; today, the
nation deals with it because it has rendered the superior race
hopelessly violent and corrupt. Of course, there will always be a class
of doubting Thomases ready to deny the presence of any divine leadership
that may not at once be touched and weighed and measured. To the
prototype of these men such tangible evidence as his feeble faith could
accept was not withheld. And those among us who are in like condition
may read M. Cochin's book, and be convinced that a system which to the
common sense of the Christian world seems morally wrong is neither
politically expedient nor materially necessary.
_A Treatise on the Law of Promissory Notes and Bills of Exchange_. By
THEOPHILUS PARSONS, LL.D., Dane Professor of Law in Harvard University,
and Author of Treatises on the Law of Contracts, on the Elements
of Mercantile Law, on Maritime Law, and the Laws of Business for
Business-Men. In Two Volumes. Philadelphia: J.B. Lippincott & Co.
We eat and drink paper and live upon paper, is a metaphor which has been
true enough these many years, but we probably appreciate the liveliness
of it just at the present time more thoroughly than ever before.
But even now we realize very imperfectly what a power in the world
paper-money is; for we are apt to think of it only as a circulating
medium in the form of bank-notes, or treasury-notes, or of somebody's
currency which has the merit of making no pretensions to the theoretical
idea of a currency which represents gold, the representative of
everything else. Bills of exchange and promissory notes are instruments
quite as indispensable to modern commerce and civilization; and when
the necessities of an enlarged commercial intercourse, some five or six
hundred years ago, first led to the use of paper as a representative
of money, it was in the form of bills of exchange. All the absolute
requirements of social life and of commerce among the ancient Greeks and
Romans were satisfied by the use of the precious metals as money, though
the want of new facilities and new instruments of commercial exchange
must have been constantly experienced. Cicero, writing to his friend
Atticus, when he was about to send his son to Athens, inquires whether
he can have credit upon Athens for what money his son may have occasion
for, or whether the young man must carry it with him in specie. Cicero
desired to accomplish what is now effected by a negotiable bill of
exchange; and if such instruments had been in use, he would have gone to
the forum and purchased a bill on Athens for the requisite amount. But
as it was, though he may possibly have found some one at Rome who had
money owing to him by some one at Athens, and may have arranged with
this Roman creditor that this debt should be paid to his son at Athens
by the debtor there, it is quite certain that no instrument answering to
our negotiable bill of exchange was used in the transaction.
Though the discovery or invention of bills of exchange cannot be
ascribed with certainty to any precise period, they are for the first
time unmistakably referred to in laws of the commercial nations of
Southern Europe in the latter part of the thirteenth century, and they
probably came into frequent use soon after that time. Perhaps the
earliest bill of exchange of which we have an authentic copy is one made
at the beginning of the fifteenth century, and which approaches pretty
nearly to the form now in use. A translation of the instrument from the
Italian. in which it was written, is as follows:--
"Francisco de Prato and Company at Barcelona. In the name of God, Amen.
The 28th day of April, 1404. Pay by this first of exchange at usance to
Pietro Gilberto and Pietro Olivo one thousand scuti at ten shillings
Barcelona money per scuto, which thousand scuti are in exchange with
Giovanni Colombo at twenty-two grosses per scuto, and place to our
account; and Christ keep you." "ANTONIO QUARTI SAB. DI BRUGIS."
For this curious relic of commercial history we are indebted to the fact
that the mercantile company upon which the bill was drawn failed to
pay it, whereupon the parties fell into a dispute about the matter of
damages, and the magistrates of Bruges wrote to those of Barcelona,
setting forth this bill with the facts of the case, and requesting
information upon the usage respecting bills of exchange in their city.
A bill drawn in England about the year 1500 bears less resemblance to
the form now used, and instead of commencing and ending with the devout
expressions of the Italian bill, it has the formal words, "Be it known
to all M'e y't I," etc., and "hereto I bynde me myn executours and all
my Goodis, wheresoever they may be founde, in Wytnesse whereof I have
written and sealyed this Byll, the X Day of," etc. It was made payable
to a person named, "or to the Bringer of this Byll."
Bills of exchange were first used only for the benefit of a specified
payee, but it was not long before the element of negotiability was
added to foreign bills, which, thus perfected, became at once the
indispensable instruments of commerce which they now are. The
negotiability of inland bills and of promissory notes was not recognized
till long afterwards. In England, inland bills were not used in any form
till about the middle of the seventeenth century; and Lord Holt, in a
case reported half a century later, said he remembered the time when
actions upon inland bills first began. Indeed, the earliest case in
which foreign bills of exchange are mentioned in the English Reports is
as late as the first year of the reign of James I., though they appear
to have been known to the courts in the preceding reign of Elizabeth,
for there are extant precedents of declarations upon them of that
period. The earliest reported case of an inland bill occurs in 1663. It
appears that the negotiability of promissory notes was a matter of doubt
with the Court of Queen's Bench as late as 1702. The court seem to have
felt very little confidence in their own opinion upon the question; for
Chief Justice Holt, after urging his opinion against the negotiability
of such instruments, took occasion to speak with two or three of the
most famous merchants in London, as to the consequences it was alleged
would follow from obstructing their negotiability; and on another day he
says that they had told him it was very frequent with them to make such
notes, and that they looked upon them as bills of exchange, and that
they had been used a matter of thirty years, and were frequently
transferred and indorsed as bills of exchange. In 1704 Parliament put an
end to the dispute between Lord Holt and the merchants by recognizing
the negotiable qualities of promissory notes which now belong to them.
The law of promissory notes and bills of exchange is thus seen to be of
very recent origin. In the early part of the seventeenth century there
was a single reported case in the English language in this department
of legal learning; now these volumes of Professor Parsons present us an
array of more than ten thousand oases decided in the highest courts of
England and America, and a great majority of these are cases that have
occurred within the present century, if not within the last quarter of a
century. Though the subject is apparently a simple one, it has presented
a multitude of questions for the consideration of the courts, many of
which it has taxed their highest wisdom to rightly solve.
A new book in any department of the law has one merit, if it is worth
anything at all,--and that is, the merit of presenting the latest
conclusions of the courts upon the topics treated of. In the department
of the law treated of by the work now under notice, this merit is one of
special consideration, for it has hardly reached its full development,
and some of its important rules are hardly settled. In this treatise
Professor Parsons has taken much pains to present the law just as
judicial determinations and legislative enactments have left it up to
the period of publication. But this work has merits which will last
after its newness is gone. It is comprehensive in its plan, embracing
the discussion of many points in the law of negotiable paper which are
not referred to in other treatises upon the subject. In style, the text
of the work is written with a clearness and grace which often give it
all the pleasantness of a finished essay, if one chooses to read
on without allowing his attention to be called off by the frequent
references to the notes. The notes occupy much space, and give very full
discussions of the more important points, with quotations from the most
important decisions. They are printed in a smaller type, and the
author is thereby enabled to give much more matter in his work than he
otherwise could. A logical arrangement of the subject-matter in chapters
which are subdivided into numerous sections, each treating of a separate
topic, which is tersely expressed in a heading to it, makes it very
easy for one to find the statement or discussion of any point which he
desires to investigate. This admirable mode of arrangement and division
of the subject is a characteristic of all the legal treatises of
Professor Parsons, and our own experience is that it is much easier
to find what we want in his works than in any others that we have had
occasion to use or refer to. The usefulness of a law-book depends also
very much upon its index; and the completeness and accuracy of this part
of the work are noticeable in this as well as in the other treatises of
the author.
In our examination of the work we had marked several chapters, with the
intention of making special reference to them: the first chapters of the
work, for the precision and clearness with which the essential elements
of bills and notes are defined and explained; the chapter on Checks, for
presenting the most complete statement which we have of the law upon
that important topic; the chapters upon Action and Evidence, for giving
in a systematic form much matter which is of the greatest use to the
practitioner, but which the textbooks have generally left him to pick up
as best he may, or have presented in a brief and unsatisfactory manner;
and other chapters for still other features of excellence. But we have
not space for further comment. These volumes are the result of a truly
vast amount of labor, and we are confident that they will be received by
the profession, by students, and by business-men with a hearty gratitude
to the author for the service he has done them in writing this new work.
There is a short Appendix, containing a reprint of the provisions of the
Stamp Act of the United States in relation to bills, notes, letters of
credit, drafts, orders, and checks; together with an examination of some
of the questions which the statute suggests.
The mechanical execution of these volumes is very superior.
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