probably soon be accomplished in Great Britain, where abuses are more inveterate, and more closely connected with the whole Here we have, perhaps, existing order of things in the state. less difficulty to encounter from the horror of innovation, than from crude, rash, and improvident projects of reform. But with the characteristic good sense and moderation of our people, we shall probably find more than a compensation for the evils to be apprehended from this source, in that timid caution, which is inspired by the habitual prejudices of professional men, and which will not suffer any proposed amendment of the law to escape a severe scrutiny. More is perhaps to be apprehended from the impatience, with which a promised good is looked forward to, and which makes men unwilling to reflect how many deep and complicated considerations are connected with every change in the laws of a country.

Those, who refer to the three years' labours of Tribonian, and his associates, in the compilation of the Pandects, as an example of the facility, with which the whole body of the laws of a great empire may be consolidated into a code, are little aware of the immense difference of the materials, with which those legislators worked, from those, which must enter into the composition of a written code, in a country governed by the common law and equity system of England. They are also probably as little aware of the extreme crudity and imperfection of the work, which they produced in so short a space of time. The Ante-Justinian jurisprudence was rich in legal principles, drawn from natural law, and from the science of ethics and analagous reasoning, and skilfully adapted to the wants and necessities of civilized society. It had already been reduced to symmetry and method by the writings of the jurisconsults, who, according to Leibnitz, all resemble each other like twin brothers, insomuch that, from the style alone of any particular opinion, hardly any conjecture could be formed respecting the author.' The codifiers of that day had therefore little more to do, than to consolidate these responsa prudentûm with the imperial rescripts upon the same titles, and to arrange the whole in the natural order of the subjects. How inadequately they have accomplished this task, is best known to those who have studied the history of this science, at present almost entirely neglected, except by the scholars and civilians of Ger

many.

It is commonly supposed, that the compilers of the Pandects

intended to follow the general arrangement of the Perpetual Edict; yet this method is by no means uniformly adhered to, and the Laws, or as we should call them, adjudged cases, are cited and arranged in the most arbitrary and capricious manner. They are full of antinomies, or contradictory decisions, of different emperors, and of the jurisconsults of rival sects, which all the skill and subtilty of modern civilians have not been able to reconcile. The text of the writers, who are cited as the authorities for the Laws, is sometimes corrupted by the negligence and carelessness of the transcribers employed by Tribonian; and at others, the genuine text is falsified to subserve the vile purposes of a sovereign, who sold his judgment and his laws.' This work was undertaken by a superstitious and despotic prince, under the guidance of corrupt and profligate ministers, in the old age and decrepitude of the empire, when the shades of barbarism had covered the West, and were fast settling over the East. No wonder that the severe scrutiny of a more enlightened age has discovered so many blemishes in a code, compiled with such marvellous rapidity. The defects in the method of the original Pandects will be obvious to any one, who has the curiosity to examine the admirable edition of Pothier, (Pandecta Justinianea in Novum Ordinem Redacta,) upon which he spent the leisure of twenty years of his laborious life, in arranging the Laws in a natural method, in purifying the text, in filling up the numerous lacunæ left in the original work, and in connecting the whole together by a series of definitions, propositions, and corollaries, forming a complete system of the civil law, and for the first time actually accomplishing a work, of which the agents of Justinian had vainly boasted so many centuries before.

The public attention has been recently directed in this country to the subject of improvement in legislation. The measures adopted by the legislature of Louisiana for the compilation of a written code, and the steps taken by the state of New York, towards a more perfect revision of the statute laws, than has yet been attempted in this country, are very important indications of the progress of the public mind in respect to this subiect. Every proposition for the amendment of the law, short of a complete written code, must contemplate either a revision of the text of the statutes, with a view to the correction and simplification of their phraseology, and a consolidation of the existing provisions in a better method and order, or to the ar

rangement of the subjects; or it may combine with these improvements substantial alterations, incorporating more or less of the principles, which have been settled by the decisions of the courts of law and equity.

We shall say nothing at present of the wisdom of such a design, as that last mentioned. But supposing it to be expedient, an essential preliminary to its execution would seem to be a careful examination of the present system of law and equity, in order to ascertain upon what foundations it rests, how far its different parts are reconcileable with the principles of natural justice and the dictates of reason and conscience, how far they depend upon positive institution and the mere authority of adjudged cases, and whether they can be arranged into a consistent whole, suited to the wants and adapted to promote the welfare of a highly civilized and commercial society.

Such appears to be the object of the Essay before us, so far as respects a particular title of the law of Contracts. This it discusses, somewhat in the manner of Sir William Jones's elegant treatise on the law of Bailments, but with a bolder hand; and less with the purpose of reconciling the anomalies of the existing law, and of showing what it is, than of comparing its precepts with those of reason and conscience, and thus endeavoring to ascertain what it ought to be. In this point of view it aims at a higher object, than can be supposed to be intended by any treatise of mere technical law. Such a discussion ought properly to precede every proposition of reform, in general legislation. A code of laws cannot be prepared pro re natâ, and enacted without regard to the preexisting law, practice, and legal habits of the country where it is to be established.

Independently of their utility in this respect, investigations of this sort must always be attractive to those who regard law as a science founded on reason, and not merely resting on positive institution and the authority of precedents. They must also command the attention of those, who delight to trace the analogies of this science, and, in the words of Lord Bacon, to 'collect the rules and grounds dispersed throughout the body of the same laws, in order to see more profoundly into the reason of such judgments and ruled cases, and thereby to make more use of them for the decision of other cases more doubtful; so that the uncertainty of law, which is the principal and most just challenge that is made to the laws of our nation at this time, will, by this new strength, laid to the foundation, be somewhat the more settled and corrected.'

The question, which Mr Verplanck has investigated, arose out of a case determined in the Supreme Court of the United States, and reported in the second volume of Mr Wheaton's Reports, p. 195. The case related to the validity of a contract of sale made under the following circumstances. Some American merchants, who were on board the British fleet, after the memorable attack on New Orleans, in January, 1815, received the unexpected news of the treaty of peace, which had been signed at Ghent, and brought it up to the city the same night. Soon after sunrise the next morning, and before it could possibly be known among men of business, a merchant, who had been put in possession of the information, called upon another, and contracted for the purchase of a large quantity of tobacco at the market price of the day, without giving the vendor any hint of the intelligence, but at the same time without saying anything calculated to impose upon him. Immediately after the news of peace was publicly known, the price of tobacco rose more than fifty per cent.

Upon this state of facts, Mr Chief Justice Marshall, in delivering the opinion of the Court, observed, that the question was, whether the intelligence of extraneous circumstances, which might influence the price of the commodity, and which was exclusively within the knowledge of the vendee, ought to have been communicated by him to the vendor? The Court is of opinion that he was not bound to communicate it. It would be dfficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are equally accessible to both parties. But at the same time each party must take care not to say or do anything tending to impose upon the other.'

Mr Verplanck expresses his regret, that this important decision should be stated in this brief and general manner, and that the Chief Justice had not applied his logical and original mind to the thorough examination of this subject, in all its bearings. He then proceeds to enumerate some of the difficulties and contradictions which appear to embarrass the question of the nature and degree of equality required in contracts of mutual interest, as well in reference to inadequacy of price, as to the more perplexing difficulty of inequality of knowledge.

'All jurists,' says he, 'agree in general terms to recognise as the leading principle of the law of contracts, that good faith must be preserved, and that fraud or art on either side affords sufficient ground for the interference of the law, to protect or

rclieve the injured party. Follow them out in applying this principle, and the uniformity ceases.

'In some cases, like that of the tobacco purchase just stated, legislators and judges, from the apparent necessity of the case, or as Chief Justice Marshall words it, "from the difficulty of circumscribing the opposite doctrine within proper limits,' have considered the question, not so much on the ground of justice, as of policy and convenience, and refused to lend the aid of the law to relieve against unequal contracts, leaving the protection of each man's rights, under such circumstances, to his own prudence and foresight. With regard to the moral regulation of our conduct, they expressly distinguish between the coarse and imperfect morality, which they are willing to enforce at their own tribunal, and the sterner decrees of the Interior Forum,— for so the Roman law, by a noble metaphor, has termed the decisions of an enlightened conscience.

Upon the same grounds of necessity and commercial policy, the courts of England and of the United States have rejected the civil law doctrine of implied warranties, have held that a full price does not imply any warranty of the character of the article, and even that goods of the lowest value may be described and sold as being of the highest, without the unfortunate purchaser's having any recourse to the seller, unless he could prove some positive fraud in the transaction. In short, they have often in various shapes recognised and applied the harsh maxim of caveat emptor, and thrown upon the buyer the burthen of every loss, against which it was possible for him to have protected himself by caution and suspicion.

'But on the other hand, in these same courts, a complete head of commercial law has been gradually filled up almost in our own days, by a continued series of wise judicial legislation, upon principles scarcely reconcileable with these. The law of insurance requires everywhere the most perfect sincerity and frankness between the contracting parties, and the slightest suppression of a material fact is held to exonerate the opposite party.

'In the same spirit too, the courts of equity, for the last century, have enforced a very hightoned and almost scrupulous morality in a large class of cases of another sort; invalidating or refusing to enforce agreements, and setting aside or rectifying conveyances made for an inadequate consideration, or through mistake as to facts, or from ignorance of legal rights.

'Our systems of equity and of insurance law are doubtless indebted, in a great degree, to the influence of the civil code, for this infusion of a different spirit from that which reigned in the ancient common law of England.