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creditor, of a borrower or lender, of a depositor or depositary, of a commissioner or employer, of a receiver or agent, or trustee; and it is absurd, as well as dangerous, for a man to contract obligations, and acquire rights, of which he has no just or accurate perception, and involve himself in liabilities and responsibilities, without knowing the nature and extent of them. There was a period in the history of this country when a knowledge of the law was considered an essential part of education; and Sir John Fortescue tells us, that in his time there were in the inns of court two thousand students, the sons of knights and barons, who were placed there, not to be thoroughly learned in the law, or to get their living by its practice, but to be fitted for the exercise of their duties in private life as noblemen and gentlemen. Lectures and readings on jurisprudence have recently been revived in the inns of court, and some attempt has been made to recommence the teaching of the law as a science, in localities where it has long been practised only as an art; but there seems little reason to expect in these times a revival of the glory and splendour of ancient days.*

It is a popular notion, that the law of England is a mere collection of positive rules, the knowledge of which is desirable so far only as it may be conducive to immediate interest, or may furnish the means of professional employment and remuneration; but however correct this notion may be as regards certain branches of the law, it certainly is not true with reference to the law of contracts, which is not founded upon any positive or arbitrary regulations, but upon the broad and general principles of universal law.

Frequent reference will be found in the ensuing pages to the pandects and institutes of Justinian and the great body of the Roman law, which is so richly stored with general rules and principles illustrative of the law of contracts; and where there is so "surprising an uniformity" with the decisions of our own courts of justice as to have induced many writers to suppose that all the leading rules and principles of the common law have been borrowed from the civil law. In several instances this has undoubtedly been the case-sometimes avowedly, and sometimes without any acknowledgment having been made by the judges and jurists who have resorted to that vast mine of legal knowledge and storehouse of principles, for reasons for their decisions, or for the resolution of their doubts. But in the great majority of instances it is quite evident that the uniformity of principle and decision has arisen from the uniformity of circumstances;

The zeal of the Benchers of the Inner Temple in the promotion of legal education may be doubted, since they still continue the objectionable practice of removing volumes of reports and law treatises from the library to their own private chambers, and there detain them for days and weeks.

that similar causes have produced similar effects, and that the same conclusions, founded on natural reason and justice, have naturally been deduced by learned and just men, from the same premises. The law of contracts may justly indeed be said to be a universal law adapted to all times and races, and all places and circumstances, being founded upon those great and fundamental principles of right and wrong deduced from natural reason which are immutable and eternal, and present "a striking unifor. mity among all nations, whatever seas or mountains may separate them, or how many ages soever have elapsed between the periods of their existence," being “widely different from those laws, which proceeding merely from positive institution are consequently as various as the wills and fancies of those who enact them." *

In the worst period of Roman history, and under the most corrupt and vicious of the emperors, the seats of justice were filled by jurists of integrity and profound learning, and "the purest materials of the code and pandects are inscribed with the names of Caracalla and his ministers." It has been observed by modern writers, that the laws of the Romans, if closely and attentively studied, will be found to form a more interesting part of their history than their victories and their conquests. Cicero, indeed, recommends them to the notice of his countrymen as containing a faithful portraiture of ancient manners, and as inculcating the soundest principles of morals; and in these days they may be resorted to with advantage by all who are desirous of investigating the true sources of juridical science, and studying the grounds and reasons upon which all civil laws are founded. It is not by treasuring in the memory a string of positive enactments or arbitrary rules; but by the study of general principles, or as Littleton saith, by the arguments and reasons of the law, that a man shall come to the certainty and the knowledge of the law, "for the law is unknown to him that knoweth not the reason thereof." ↑

A large portion of the commendation so frequently bestowed upon our civil law undoubtedly belongs to the honesty and integrity of its administration amongst us, for whatever may be the instrinsic merits of a law, however well it may read in the statute book, or look upon paper, it is a dead letter, or worse than useless, unless it is well and faithfully administered. The machinery of our jurisprudence, guided as it is in this country by upright, independent, and incorruptible judges, moves silently but surely onward, securing the rewards of industry, and the safe tenure of

* Sir William Jones. Introduction to the speeches of Isæus.

+ Co. Litt. 395.

property, and promoting public and private confidence, and commercial credit. The importance of its steady and stable progress is scarcely thought of or appreciated by the great mass of mankind; but if any derangement or obstruction should occur to that machinery-if the springs. and wheels should ever be intrusted to unskilful, servile, or corrupt hands, and their proper action be impeded, the most disastrous consequences would inevitably result to the whole framework of society;-to the industrial resources, the commercial prosperity, and the political power and influence of this mighty and magnificent empire.

There is generally more danger to be apprehended from the corrupt and vicious administration of a good law, than from a just and equitable enforcement of a bad law. The Turkish laws, so far as they relate to mercantile dealings between man and man, are unexceptionable and excellent, and the law of Spain, founded upon the ancient civil law of Rome, is regarded with reason by the Spanish jurists and law writers, as a monument of wisdom, equity and justice. The difference, therefore, to be observed in the social and political condition of this country, as compared with Turkey and Spain, results not from the superior excellence of our commercial law over the laws of those countries, but in the superiority of its enforcnment; in the uprightness and incorruptibility of the judges; * and in its equal administration without fear or favour to all classes of the community, high and low, rich and poor.

The machinery is undoubtedly expensive, and unnecessarily complicated and cumbrous, and a bold attempt has been made by the recent statute of 9 and 10 Vict., c. 95, commonly called the "Local Courts Act," to shake off all antiquated and useless forms in matters of small amount, and to bring, as it is popularly termed, " cheap and speedy justice to every man's door." The step is a step in the right direction, but care and circumspection must be exercised to secure learned and efficient judges, in order that the proceedings of these new courts may harmonize with the general law, and that certainty and uniformity of decision may prevail throughout the land in matters of contract under £20, as well as in those that are above that amount. If unskilful, unlearned, and inefficient judges are appointed, we shall shortly witness in this country the same state of things as that which prevailed in France prior to the revolution,

* In Turkey, Spain, and some of the Italian states, the judges are badly paid, and are often not paid at all. They are therefore permitted to receive presents from suitors, and justice is indisputably bought and sold. The written rules of law may be excellent, but the judge suffers the facts to be perverted; and as he is a judge both of law and fact, the suitor is entirely at the mercy of the


when the administration of justice by the local parliaments and inferior jurisdictions of the provinces, led to contradictory laws, rules, and customs in every part of that kingdom, so that there was one law for the north and another for the south; one rule in Normandy and another in Brittany; and the customs of Orleans were at direct variance with the customs of Paris.

It is a great mistake to imagine that all claims and causes of action under £20 ought to be easily and speedily settled one way or the other, right or wrong, consistently or inconsistently with law and previous decisions. The judgment of a court upon every litigated point has in general a bearing and an influence far beyond the immediate matter in dispute, and affects other transactions and relations in a way which superficial observers are little aware of. "The knowne certaintie of the law," it has been truly observed, "is the safetie of all;" and if the new judges bring to their task a competent knowledge of the law, if their decisions are kept consistent with each other and with the general law; if they do not unsettle rules long since settled; or overturn well-established principles, introducing doubt and uncertainty where certainty before prevailed, the County Courts will indeed become a great boon to the community, and facilitate the transactions of a large class of traders in the provinces, who are at present repelled from the superior courts by the expense and delay attendant upon their proceedings.

The branch of law which will be the most constantly and frequently administered will be the law of contracts, and it is hoped that the rules and principles of that law, collected and arranged in the ensuing volume, and supported, illustrated, or exemplified by reference to nearly four thousand adjudged cases, determined in the superior courts, will be of some use to those who preside over, as well as to those who practise in, or come before the new local tribunals. There are undoubtedly many able and learned works devoted either wholly or partially to the development of the subjects treated of in the present volume, and the author may be liable to the charge of presumption and of trespassing on ground already occupied, in venturing to add the present treatise to the number of those publications. The subject, however, though not intact is far from being exhausted, and when we compare the existing publications in our language upon this important branch of law with the elaborate and elegant works of Pothier, and the varied and profound researches of continental jurists, it is evident that much still remains to be done amongst ourselves for the elucidation and development in a generally intelligible and popular form of the rules and principles of the Law of Contracts.


March, 1847.

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