THE COURT OF AIIBJTIUTION 
 
 ITS ADVANTAGES AND IMPORTANCE TO BUSINESS MEN. 
 
 Ai\ ADDRESS OX THE SUBJECT, 
 
 DELrVEKED BY 
 
 ELLIOTT F. SELEI*-A.m:>, Esq., 
 
 BEFORE THE CHAMBER OF COMMERCE, OCTOBER 7tu, 1875. 
 
 ALSO, 
 
 REMARKS .. 
 
 INFLUENCE OF MERCHANTS, AND THE IMPORTANX'E TO THEIR 
 
 INTEREST OF A COMMERCIAL COCRT UNTRAMMELLED 
 
 BY VEXATIOUS FORMS AND DELAYS, 
 
 E. L. EA-iSrCHER, EL. E. 
 
 PRESS OF THE CUAMBER OP COMMERCE. 
 1875. 
 
THE COURT OF ARBITRATION: 
 
 ITS ADVANTAGES AND IMPORTANCE TO BUSINESS MEN. 
 
 AN ADDRESS ON THE SUBJECT, 
 
 DELIVERED BY 
 
 ELLIOTT F. SHEFA.RD, Esq., 
 
 BEFORE THE CHAMBER OF COMMERCE, OCTOBER 7th, 1875. 
 
 ALSO, : : .. . 
 
 REMARKS'- ':, \ ' \r'.'', :•. 1 1 : ;. 
 
 ON THE 
 
 INFLUENCE OP MERCHANTS, AND THE IMPORTANCE TO THEIR 
 INTEREST OF A COMMERCIAL COURT UNTRAMMELLED 
 
 BY VEXATIOUS FORMS AND DELAYS, 
 
 BT 
 
 E. L. EA.NCHER, LL. D. 
 
 PRESS OP THE CHAMBER OF COMMERCE. 
 1875. 
 

 .fVRlNTED. Fp^ GEIfEEAL 
 
 DISTEIBUTIOK BY THE ORDER OF 
 THE CHAMBER. 
 
 JOHN W. AMBBMAN, PRINTEB, 
 No. 4T Cedar StrMt, N. Y. 
 
^miti if Htllttatbit. 
 
 address by elliott f. shepard, esq. 
 
 Mr. Presidext, and Gentlemen of the Chamber of Com- 
 iiERCB : In response to your invitation to address the merchants 
 and business men of this city in relation to " the Court of Arbitra- 
 *' tion, and the methods by Avhich disputed questions can be brought 
 *' before the court for adjudication," I have the honor to submit a 
 few words. I '. . . 
 
 The court is the offspring of the commerce (Jf.*tnJ<i por€, and'ug. 
 facilities for a summary settlement of disputes ^;\y be a,v;iil,ed^ of oy 
 every merchant, and indeed by every residerii'o'ftUe.gi.'^at ^ii-le^V^ : 
 New- York, Brooklyn, Jersey City, Newburg and Albany, as well 
 as of any other part of the collection district of this port, upon all 
 commercial and mercantile questions. 
 
 The members of this Chamber may cite one another before this 
 court, upon a notice of not less than two days nor more than five 
 days ; and both they and all other parties have the right to name 
 additional arbitrators to sit with the official Arbitrator, if they so 
 elect. 
 
 If they so elect, then the case will go on before a Board of Three ; 
 if they do not so elect, then it will go on before the official Arbitrator 
 as sole judge. 
 
 The provisions for the correction of any errors which may creep 
 into the decisions is ample and simple. The parties may have a 
 rehearing before the same, or a new Board of Arbitration — in either 
 case the judge continuing to serve — which amounts to a review by 
 appeal, and is all that can be desired. 
 
 The case of Becker vs. The General Insurance Co. of Dresden 
 is an illustration of this principle. 
 
 679939 
 
In that case, owing to good cause shown, a new trial was had 
 before the Arbitrator, and the first judgment reversed. To the 
 correctness of the second judgment even the defeated party was a 
 convert — and the decision has the felicity of carrying the convictions 
 of both parties. 
 
 These new trials may be had, upon the grounds of error at the 
 first one, of newly discovered evidence, of a deficiency of evidence, 
 or for any reason that would commend itself to any intelligent 
 merchant. 
 
 But this court possesses a greater guaranty against the commis- 
 sion of errors than any other court in the State, growing out of its 
 being endowed with the wise, comprehensive and safe poAver, upon 
 its own motion, and notice to both the adverse parties, of taking 
 additional testimony, when it may be necessary to enable justice to 
 be done. Especially is this valuable in cases where expert and 
 scientific testimony is required. 
 
 It not infrequently appears in the trial of causes at law, that the 
 court is embarrassed by the insufficiency of evidence, which the 
 parties, left to themselves, bring before it. Some point is left ob- 
 scure, some fact is not explained, some matter is unsettled ; and 
 lawyers are often, sjirprised to find that a judge makes the case to 
 ^tui'.n updn.'qnpe.'ipf these very points, the importance of which had 
 ■bfer^n lost siglit of in c\A^er issues, and about which they might have 
 giVen'olher. ^nd'. fur.tl\sV evidence which was in their control, which 
 would have carried the decision the other way. But after the deci- 
 sion, it is too late ; the trial is ended. The evidence might have 
 been produced, but was not, and the party is concluded. 
 
 Such complaints as that is the case of Schenck vs. Andrews, 57 
 JV. Y. Reports, 148, cannot arise in the Court of Arbitration. In 
 that case the court of last resort find themselves embarrassed by the 
 fact, that " an inspection of the record shows that it had been very 
 loosely tried." The Court of Arbitration, on the other hand, is 
 bound to acquire all the facts, and to bring in of its own motion all 
 the evidence, if any should inadvertently be omitted by the parties 
 themselves. 
 
 The merchant may fearlessly come into this court without a law- 
 yer; for the upright, able and experienced jurist who presides in it 
 will not allow any advantage to be taken of him. His ignorance of 
 his own rights will not cause him to fail of justice. The ingenuity 
 of his adversary cannot defeat him if the right be on his side. 
 
 The judge is to do equity between the parties, and not merely to 
 decide a case as the parties leave it, if it is evident that either 
 
5 
 
 of them has fallen into error or mistake which ought to be avoided 
 or corrected. 
 
 The case of Macfarlajtd & Co. vs. R. & C, Dkgener is in point. 
 Tliere the plaintiff and defendant came togetlier before the Arbitra- 
 tor, and orally submitted their cause. The plaintiff said the defend- 
 ant owed him $1,202 89. The defendant denied his liability, but 
 said he should pay at once if the case went against him. This he 
 had the pleasure of doing, as the Arbitrator clearly perceived, and 
 decided that he was liable. This he actuall)'^ did in about half an 
 hour after entering the court room. 
 
 The practice in the courts of law make such a case impossible of 
 occurrence in them. Such a case seems to carry the administration 
 of justice back to its pristine glory in the patriarchal times, when 
 the head of the tribe sat in the gate of the city and dispensed justice, 
 himself protecting the weak and defending the ignorant. 
 
 Other great advantages to the merchant in this Court of Arbitra- 
 tion are ; that the trials are to be immediate ; neither party is to be 
 punished in costs for endeavoring to settle their rights ; the atten- 
 tion of the court will be confined exclusively to purely business 
 matters ; it is located down town, in the most convenient spot for 
 commerce ; it can construe and interpret contracts, bills of lading, 
 charter-parties, all Avritten instruments and verbal agreements, even 
 in advance of their execution ; it can detei'mine the rights and lia- 
 bilities of the parties under them after execution ; and it does all 
 this in the speediest and most economical manner. Nothing to be 
 compared with the costlessness and celerity of its adjudications can 
 be found anywhere else in this State or the United States. 
 
 The submission of causes may be made orally by the parties, if 
 they jirefer that method, thus saving time and expense ; and in such 
 oral submissions the parties may rely upon it, that the Arbitrator 
 Avill be at as much pains to draw out all the evidence and devclope 
 the facts, and then to apply the correct principles in deciding it, as 
 they could desire or their own counsel exhibit. 
 
 A sample of his fidelity in this regard may be found in a late case, 
 where the defendant was awarded damages for $36,000, although at 
 the outset the plaintiff made a large claim. 
 
 I shall not be understood as advising merchants generally to dis- 
 pense with the services of counsel, in conducting what would ordi- 
 narily be lawsuits, before this tribunal. I have too much experi- 
 ence of the value of learned and skillful counsel in all the important 
 afiairs of life, to make such a suggestion. But I do say, tliat in 
 many a case of a dispute about a bargain between merchants, they 
 
6 
 
 are perfectly competent to have it settled by the Arbitrator without 
 any further legal assistance than such as he will afford to both 
 parties. 
 
 Every day there are witnessed misunderstandings on 'Change, at 
 the Stock Board, in bankers' offices, in merchants' counting-rooms, 
 which might be settled by a reference to the Arbitrator, who is 
 always accessible at this Chamber, in the course of a few minutes. 
 
 The facility for snch settlements and adjustments, furnished by 
 this court, is far greater than that of the Arbitration Committees 
 of the different boards, associations or exchanges. In them, a com- 
 mittee of different persons, who have other business to attend to, 
 has to be notified and assembled, often at great inconvenience, and 
 after worrying delays. Here the Arbitrator holds court continu- 
 ally, with no other business to interfere with his duties. 
 
 The committees are changing and shifting — the Arbitrator is 
 appointed for life. 
 
 The committees establish no precedents, leave no permanent 
 benefits behind them, often are controlled by business interests of 
 their own which may be affected by their decision, and may vary 
 the principles on which a case is to be decided with every wind of 
 opinion, and every new election of committees. 
 
 The capacity of this tribunal for business may be measured by 
 the amount of business done in the year 1869, by the somewhat 
 similar tribunal in Paris, known as the " Tribunal de Commerce.^'' 
 
 In that year the number of new cases brought were 6 8,75 1 
 
 Remaining on the calendar from the preceding year, 1,012 
 
 Total, 69,763 
 
 Of which 38,610 were settled by default. 
 17,182 " " after triah 
 
 5,035 " withdrawn. 
 7,751 " amicably settled. 
 1,185 went to the next year's calendar. 
 
 Total, . . 69,763 cases. 
 
 As there is no provision for a re-hearing in that tribunal, one 
 appeal is allowed, and of the few cases appealed, more than three 
 times as many were affirmed as were reversed. Showing how 
 satisfactorily the tribunal is found to work. 
 
In cases of strikes by operatives in factories, mines and shops, the 
 services of this Court of Arbitration will be found of incalculable 
 advantage both to the employers and the employees, if they will 
 unite in bringing their matters before it. In such a case, the mas- 
 ters could select one arbitrator, the employees another, while the 
 disinterested, fair-minded judge would place his wisdom and learn- 
 ing at the service of both parties. The result of such an arbi- 
 tration would produce, by the simple operation of this commercial 
 court, the same happy effects which Mr. Mundella, M. P., suc- 
 ceeded in bringing about at Sheffield in the cutlery trade, by the 
 cumbersome machinery of the Arbitration Board. 
 
 Yet the success of that scheme was so great a benefaction both 
 to capital and labor, that they sent for Mr. Mondella from dif- 
 ferent parts of England, to visit other cities, and organize similar 
 Boards. 
 
 The legislature of the leading State of the Union has wisely pro- 
 vided a facility for reaching the same results, with less trouble, 
 expense and delay ; and as the proprietors or agents of factories 
 and mines at Fall River, Mauch Chunk and other places, reside or 
 do business in this city, they are entitled to avail themselves of the 
 services of this Court of Arbitration in the settlement of disputes 
 about wages and hours of work. 
 
 The possibilities of this court are not yet all of them developed, 
 as it is still in its infancy ; but enough has been done, and enough 
 can be seen, to demonstrate its usefulness and success. 
 
Remarks of Hon. E. L. Fane her on the Importance to Merchants of a 
 Commercial Court Unembarrassed by Forms and Delays. 
 
 The Court of Arbitration is an institution adapted to the spirit 
 of the age, and it is required by the necessities of commerce. Judi- 
 cial tribunals have been established Tor the purpose of ascertaining 
 the truth in the disputes of parties, and also for the purpose of 
 administering justice between them. Although such is the benign 
 intention of their maintenance, it is, nevertheless, true that the 
 results of litigation have very largely depended upon the skill and 
 technicality that prevail in forensic contests, and such results have 
 not infrequently been hostile to the true principles of justice. 
 
 It has been charged that the technical subtleties of raedifeval 
 times have never been eradicated from the principles of legal pro- 
 cedure ; and that all attempted reforms are only patches on the old 
 garment. It cannot be denied that traditional uncertainty and per- 
 plexity have attended the steps of judicial procedure ; and that the 
 favored hour of a perfect administration of justice must be referred 
 to the future. It is doubtful if the administrative machinery of the 
 legal department of our government has kept pace with the improve- 
 ments of other departments in social and political life. Perhaps we 
 must go far back to discover the origin of the difficulty. 
 
 We learn from history that some of the governments of civilized 
 Europe were for centuries regulated according to principles of feudal 
 origin. Such rules not only determined the political character of 
 several European monarchies, but they formed the basis of their 
 systems of jurisprudence. Feudal relations supplied the place of 
 other government, and out of them grew corresponding duties and 
 peculiar institutions. Baronial courts and forums of the hundred 
 were the chief judicial tribunals in England. Ancient customs ; the 
 alliance of lord and vassal ; the impulses of chivalry ; tlie spirit of 
 the age and the sanctions of religion were all employed to strengthen 
 the ties of the feudal connection and to uphold the peculiar institu- 
 tions. France, Germany, Normandy and England came alike under 
 the sway of the feudal principle. The famous question seems to be 
 unsettled whether feudal tenures were known in England before the 
 conquest. If the system was introduced no earlier than by the 
 Norman adventurers, it maintained its great and general power for 
 six centuries, and more, during which feudal subjection trained the 
 growing nation to the peculiarities of feudal usages and laws. 
 
 With the increase of population after the lapse of several centu- 
 ries the progress of education and the power of jiublic opinion grad- 
 
9 
 
 ually softened the haraher features of the feudal system ; but from 
 it have sprung the impress of English national character ; much of 
 their modes of thought, many of their peculiar laws, their baronial 
 privileges and their feudatory principles of justice and government. 
 
 Education and enlightened public opinion have continued to make 
 inroads on the primary power of feudalism. Yet its spirit and in- 
 fluence have never quite forsaken the institutions of the law. 
 
 In other departments of social and political life the world entered 
 upon a new epoch in the sixteenth century, when the business of 
 merchants produced results of the greatest importance. 
 
 Commercial interests began to be prominent in European affairs. 
 The ocean route to India by the Cape of Good Hope had been discov- 
 ered, and the merchants, by means of it, turned away fi-om its ancient 
 marts in Western Asia the East India trade. The cities of Italy 
 were also passed by, and the current of trade set upon the shores of 
 Western Europe. At first, Portugal, by her maritime adventure 
 and enterprise, became the centre of this enriching traffic, and Lis- 
 bon rose to be the great emporium of Europe. The Dutch also 
 afterward gained important portions of the East India possessions, 
 and they rapidly amassed immense wealth by the new-found trade, 
 80 that Amsterdam and Antwerp became great marts of commerce. 
 
 But Great Britain set up her manufactories, and compelled her 
 colonies to sell their raw material to her. By her trade policy and 
 advantage she soon reduced the power of her Dutch rival. When, 
 also, the commerce of Portugal declined and the Spanish monarchy 
 fell, Great Britain had only to contend with France for commercial 
 ascendancy. Thenceforth the contest between those two powers 
 for the supremacy of trade was carried on for a hundred years. It 
 was understood by both nations that the control of superior manu- 
 factories and of superior commerce was equivalent to the control of 
 the wealth and power of the world. When England gained the ad- 
 vantage she designed, so far as possible, to make the earth one vast 
 plantation, to be worked for the benefit of British looms and Britisii 
 capital. When an alliance sprung up between her and Fi-ance they 
 were both engaged in a heated contest for the commercial dominion 
 of the world. They knew it to be the certain source of wealth and 
 power, and to involve as a concomitant the supremacy of the seas. 
 The great question which convulsed Europe and ended with the fall 
 of the first Napoleon, was whether England or France should be 
 the great naval and commercial power of the world. While they 
 were allied, the central idea was, that united, they could control the 
 world ; and when they went to war against each other, it was that 
 
10 
 
 the victor raiglit gather the fruits of commerce both from the East 
 and the West. There were, of course, other questions involved, 
 but the dominant idea was the advantage of trade and the power 
 of commerce. Napoleox saw that if the East India trade could be 
 diverted from its route around the stormy cape, and returned to its 
 ancient channel through the Red Sea to Egypt, the eastern shores of 
 the Mediterranean would regain their former importance, and the 
 seat of the world's wealth and dominion would be changed. It was 
 this idea that impelled his expedition into Egypt.* He said to his 
 troops before disembarking, " Soldiers ! you are about to undertake 
 a conquest fraught with incalculable effects upon the commerce and 
 civilization of the world." 
 
 England, however, succeeded in monopolizing the Eastern trade 
 by conquering and colonizing the very countries, in the distant 
 Orient, whence it originates. It once poured into Europe by the 
 Black Sea. The Phoenicians, two thousand years before the 
 Christian era, possessed a powerful navy, and they built cities and 
 established colonies on the Dardanelles and the shores of the Black 
 Sea. These all flourished on the lucrative trade of the East. 
 When Rome rose to power, she contended for the riches of the 
 Black Sea commerce ; and, at the demand of her jealous commercial 
 ambition, the Euxine became a Roman lake, closed to the com- 
 merce which the open ports of the eastern shore of the Mediter- 
 ranean invited. 
 
 The wealth of the remote Indies directed to Western Europe, 
 built up the enriched marts of Paris and London ; which could not 
 have been done, in such extent and magnificence, had not the stream 
 of trade been diverted from the Black Sea, the Mediterranean and 
 the banks of the Nile. 
 
 When the capital of Rome was removed from the Tiber to 
 the Hellespont, Constantinople rose to be the foremost city of 
 the world. It Avas because she formed a new and advantageous 
 centre for commercial trade between the East and the West. To 
 her markets came the merchants from China, India, Arabia, Persia 
 and Europe ; and her advantages and magnificence made her a 
 queen without a rival. 
 
 It is well known that, for many years, Great Britain and Russia 
 have employed their sagacity and policy in pursuit of the great 
 purpose of controlling the trade and commerce of the East. Accord- 
 ing to the teachings of history, commerce is the great, unequalled 
 
 • See London Quarterly, April, 1876, Vol. 276, p. 300. 
 
11 
 
 power. It has waged war and concluded peace. It has dictated 
 treaties and made conquests. It has governed colonies and grasped 
 at dominion over the seas. It has builded the great cities of the 
 world and controlled the destinies of its great nations. 
 
 Political economy long ago discovered, that if any country can 
 bring to her mills the raw material, and, having manufactured it, 
 can resell it in all markets, the tribute of her profits and the freight 
 of her ships she can exact from the purchasers. To the extent 
 that she can attract to her mills and machinery the products of the 
 world, and can sell her manufactured fabrics elsewhere, she secures 
 the profits of her labor, her looms and her capital. Other nations 
 may also be made tributary to her wealth by contributing to the 
 profits of her carrying trade. 
 
 If the discovery by the Portuguese of the new route to India by 
 the Cape of Good Hope changed the face of Europe ; caused com- 
 merce to desert its ancient seats around the Mediterranean, and 
 planted the centres of future dominion in Western Europe, whose 
 cities became the depots and markets of the world, it is not too 
 much to ascribe to commerce, and to the capital, enterprise, 
 industry and skill, that are its attendants, the power which, under 
 Providence, controls the destinies of nations. There are no interests 
 of pecuniary character which more require the speedy administra- 
 tion of the law, and none that feel more the defects in its ad- 
 ministrative machinery than those of commerce. Great cities are 
 the world's memorials of achievements in trade. The City of New- 
 York is a chronicle of commercial enterprise, now being rapidly 
 re-written in marble. Her shipping, that lines both sides of the 
 city, presents a forest of masts, between countless warehouses filled 
 with the products of all climes, and tributary waves that roll in 
 from every sea. 
 
 But in England and the United States, both of which are coun- 
 tries boasting of self-government, the institutions of justice are a 
 hundred years behind .'the reforms in other departments. They 
 have not kept pace with the improvements in society nor with the 
 requirements of trade. The forms of antiquity have characterized 
 forensic procedure, and darkened the temples of justice with the 
 mould of the past, like ivy feeding on the dust of an ancient ruin. 
 Legal tribunals have been remarkable for perpetuating the spirit of 
 by-gone times. Judicial quest has often pursued the dim paths of 
 traditionary precedent. Old abuses have clung to the methods of 
 legal procedure with unyielding tenacity. The arts of technicality 
 have for ages veiled the weightier matters of the law ; and the four 
 
12 
 
 corners of a special plea have often proved insurmountable barriers 
 to the free course of justice. It was only after a long struggle for 
 reform that equity and common law were permitted to intertwine, 
 or were allowed to be administered by the same tribunal. Subtle 
 and dilatory rules of pleading and procedure still throw obscuring 
 shadows around the forms of action, and frequently conceal from 
 view the real merits of the case. Venerable as are some of these 
 forms, it seems unreasonable to retain them after they have ceased 
 to be useful. 
 
 It is shown how strong old abuses have clung to legal systems 
 when we read a statute of England, in the time of the Protector, 
 for turning the books of the law and all process and proceeding in 
 courts of justice into English, and find that ten years afterward the 
 same benign act was repealed ; thus remanding the forms of legal 
 procedure to the dog-Latin and Norman-French that before pre- 
 vailed. Such reti'ogression necessitated a professional class, edu- 
 cated in musty precedents, who gained thereby claims to large fees, 
 for conducting legal controversies through quick-sand channels, in a 
 manner every way mysterious to ordinary intelligence. It required 
 a statute, both in this country and in England, to authorize a de- 
 fendant to plead the general issue, or a plaintiff to sue upon a bill 
 of exchange by common counts. These righteous means of rising 
 above the snares of special pleading, and of reaching the merits of 
 the case in a simpler manner than before, according to the truth 
 and the evidence, were not favorable to those old notions, which 
 sought advantages through the intricacies of technicality. It was 
 not possible, of course, that the fruits of such a system should be 
 yielded without a struggle. An act of Parliament was passed to 
 prevent the stoppage of causes for irregularity of forms, and requir- 
 ing the judges to give judgment *' according to the very right of 
 the cause ;" but the influence of the old system still lingered in the 
 courts of law, and the statute was not powerful enough to overcome 
 the stubborn authority of the ancient precedents. In New-York, 
 the statute of jeofails was benignly intended to achieve a triumph 
 over the inveteracy of technical rules of pleading ; but it proved to 
 be more beautiful in theory than useful in practice. It can seldom 
 break the spell of a technical cobweb, and is an easy prey to the 
 principle of stare decisis. 
 
 When the lawyers of England had, for another hundred years, 
 after the accession of Charles II., imposed their unreadable jar- 
 gon on the people, an act was passed in 1730, reciting that "many 
 and great mischiefs do frequently happen to the subjects of this 
 
13 
 
 kingdom, from the proceedings in courts of justice being in an 
 unknown language — those who are summoned and impleaded hav- 
 ing no knowledge or understanding of what is alleged for or against 
 them by their lawyers, who use a character not legible to any but 
 persons practicing the law ;" and then it enacted that all proceed- 
 ings in England, and in the Court of Excliequer in Scotland, should 
 be in English for the future. Why should a people, advanced in 
 intelligence and science and in all the arts of civilized life, have 
 borne so long with medireval jargon in their courts of justice and 
 with such antique obstacles in the administration of law ? 
 
 So late as 1873, a long series of attempted legal reforms was closed 
 in England, by an Act of Parliament, called the Judicature Act. 
 Its advocates predicted that it suggested changes which would 
 make the reform tide, of necessity, pass by the ancient legal land- 
 marks, and bear the ark of the law to a point only dreamed of by 
 Lord Brougham, Sir Samuel Romilly, and Sir James Macintosh. 
 But the commissioners appointed under the act to inaugurate the 
 reforms, after long labor, resolved, that so great a field of inquiry, 
 involving questions of state organization, and the possible recon- 
 struction of two large departments, other than the legal department, 
 was beyond them, and beyond the intention of the government. 
 
 We have been more successful in the State of New -York in at- 
 tempts to improve the administrative machinery of the courts ; 
 but our practice still composes such a system of formality and of 
 technical procedure, that only adepts in the knowledge of the 
 science can pretend to comprehend it. The " Nestor" of the Bar, 
 after years of endeavor to bring a public peculator to justice, is lia- 
 ble to have his studied pleading and his chosen form of action over- 
 turned by the court of last resort, because not conformable to canon- 
 ized precedent. The lance that has pierced the armor of many a 
 valiant knight is shivered against the trunk of antique method. 
 
 The system of reaching the doors of justice should not be a re- 
 condite procedure. The merchants of New-York have done well to 
 determine that it shall not be, so far as they are concerned. Let the 
 infatuated advocates of old forms say what they please, it is mani- 
 fest they are not adapted to the progress and exigencies of com- 
 merce. By the aid of the Chamber of Commerce, and by the con- 
 sent of the Legislature and Governor of the State, the Court of Ar- 
 bitration is now established on a solid and permanent basis. In that 
 court technicalities are not observed, and such forms of procedure 
 prevail as are understood by every suitor, and as conform to com- 
 mon sense. It may be said of the merchants who have thus estab- 
 
u 
 
 lislied tlieir commercial court, such practical reformers stand above 
 the rest of men ; and they uphold the true principles of reform with 
 e;iliglitened judgment and with watchful discretion. They are the 
 instrumentality by wliich the si^ell of old abuses is broken, that the 
 wheels of progress may move onward to work out beneficial achieve- 
 ments for mankind. They liave taken steps in advance, which 
 disdain the old walks of tradition, and move over new pathways 
 of usefulness, in keeping with tlie spirit that has ever characterized 
 the enterprise of sagacious merchants. The movement they have 
 thu^ inaugurated is inspired with tlie idea that the judicial admin- 
 istrative machinery should revolve around a standard of right- 
 eousness and truth, where the merits of a controversy shall for 
 ever triumph over technical embarrassments and mysterious pre- 
 cedents. 
 
 It is a mistake to suppose that the intricacies of legal procedure 
 are necessarily so mysterious that it is hopeless for the lay world to 
 struggle against them. The great difficulty of reform in forensic 
 pi'ocedure is not so much in the nature of the subject as in the pub- 
 lic apathy respecting it,. There is no reason but public indiiference 
 why a sj^stem of ingenious pitfalls should have been so long regarded 
 as irremediable. The law, to be a useful science, should be readily 
 available to all who have occasion to resort to it. It should be just 
 and certain, and adapted to the varying exigencies of human affairs. 
 It should not be embarrassed with vexatious delays or ruinous ex- 
 penses. There is no well-grounded complaint that the laws of this 
 free land, so far as they are the rules for civil conduct, are not just 
 and certain. The miscarriage of justice is not due to the imperfection 
 or uncertainty of the law. The difficulties are connected with its 
 administrative machinery. Delays, technicalities and expenses are 
 the crying evils so much deprecated. 
 
 It would seem to be theoretically possible to remove these im- 
 peachments from the administration of the law ; but it has practi- 
 cally been found impossible in the ordinary courts. Attempts have 
 been made to reduce the evils just mentioned to the smallest possi- 
 ble dimensions, but they are still formidable in the pathway of 
 justice. Every layman knows that when a quarrel has ripened into 
 a lawsuit, it has not only become involved in a web of mystery 
 that none but experts can unravel, but, also, that in proportion to 
 its magnitude, will be the plethoric bills of expense attending tlie 
 contest ; while the day in the distant future, when its final deter- 
 mination will be announced, is beyond the vision of the most far- 
 seeing prophet to discern. Many a litigant with a just cause has 
 
15 
 
 been disheartened by these perplexities, and to such wind-mill evo- 
 lutions of forms and tardiness are to be attributed the sad failures of 
 justice more than to any other cause. 
 
 There seems to be a principle in some human philosophy finding 
 expansion in the legal profession, which inculcates the idea that 
 quips and quiddities belong to the smart and successful methods of 
 legal warfare. Men of strong minds will, at times, avail themselves 
 of their supposed advantages on slight temptation. If a pleading 
 can be demurred to, it will not be otherwise answered. If there be 
 incoherency or incorrectness of statement by one party, the other, 
 though he know full well the (fist of the allegation against him, will 
 delay the cause by motions to make the pleading more definite and 
 certain ; by applications to strike out irrelevant or redundant mat- 
 ter, and by procedure to compel an adversary to elect which of dif- 
 ferent forms of pleading shall be adopted. Appeals from decisions 
 on such applications are frequent ; and when the pleadings ai'e 
 finally adjusted, the issue must awaij its delayed rotation on the cal- 
 endar. 
 
 Legal controversies should not be dallied with in such a dilatory 
 manner. Neither technicality nor delay should stand in the way of 
 a speedy trial. The machinery of practice should be such as can 
 be worked with facility, rapidity and certainty. The hearing 
 should not be deferred, nor the decision delayed, until the remedy 
 applied is too late to ensure substantial justice. It is important 
 that disputes afiecting property should be determined during the 
 decade in which they have arisen. Suitors should feel assured that 
 neither technical intricacies nor delays will baffle the ends of justice. 
 
 Now, the distinctive peculiarity of the Court of Arbitration is, 
 that it is exempt from the long deplored evils of technicality, delay 
 and expense. It regards the merits of the controversy, and gives 
 no opportunity for craftiness or trick to obscure or entangle them 
 with cobwebs. While justice is administered there upon the same 
 solid principles of the statutes and common law, that are obligatory 
 in all courts, it is done without the perplexity of the preliminary 
 pleas, or of dilatory devices, which prevail in other courts. There 
 16 no delay necessary to perfect the allegations of the parties before 
 the merits can be heard. Traditional precedents are not inquired 
 about, at the cost of time, labor and money. The real truth of the 
 controversy is quickly brought to view. Questions that bear no 
 relation to the actual facts are put aside. The controversy can be 
 tried without subjecting the litigants to long neglect of their other 
 businesp. Preliminary skirmishes, that raise false issues, are 
 
16 
 
 not known ; and the subject of dispute is not perplexed with the 
 meshes of erroneous or mistaken pleadings. Is it wonderful 
 that in every kingdom and country where such courts have been 
 established, they have become favorites both wilh the government 
 and the people ? Or that history records of the institution that it 
 is everywhere popular and beneficial ? 
 
 But a grand work has, usually, a slow beginning. It takes time 
 to prepare the foundations; and if the merchants of New-York in 
 membership with the Chamber of Commerce had not possessed 
 vast sagacity, unyielding energy and powerful influence, they 
 would not have gained so great a distinction as the honor of found- 
 ing, on so secure a basis, their Court of Arbitration for the Port of 
 New-York. What they have thus achieved is, without doubt, a 
 measure of present utility ; biit its rising glory will only be fully 
 seen, when the mists of anomaly have passed away, and the work- 
 ing of the court shall display its usefulness and advantage to the 
 commercial community. It will then be ranked among the cherished 
 institutions of a progressive people. 
 
 Should not the merchants of New-York have their commercial 
 court ready of access for any emergency ; and should it not be one 
 of simple and sj^eedy procedure ? They, who conduct the trade of 
 the chief emporium on the Atlantic seaboard ? They, who are the 
 nation's source of influence and power ; who supply the government 
 with revenue and the country with imports ; who pay large taxes 
 and keep the wheels of manufactories in motion ; who spread the 
 sails of their commerce on every sea ; line our wharves with com- 
 modious warehouses ; our business streets with costly stores and 
 oiir avenues with palatial residences ? The influence they wield, 
 like the bow of Ulysses, cannot be drawn by weaker hands, and 
 the dominion to which they aspire is to bring the nations of the 
 world into the fraternal relations of commerce and civilization. No 
 chapter in the history of the progress of the American nation is 
 moi-e illuminated with the spirit of patriotism and the exploits of 
 peaceful enterprise, than that which records the pre-eminent success 
 of the merchants of New-York. As the needle of the compass that 
 guides their ships contributes to the speed and security of the voy- 
 age, so may their new Court of Arbitration contribute to the onward 
 course of commerce, by decisions magnetized with the loadstone of 
 justice, and by a readiness and efliciency that are properly responsive 
 to the varying exigencies of a great commercial community. 
 
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