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reasonings of a bargain peculiar to each individual, such as skill, and judgment, and personal necessities, can never be expected to be communicated; but with regard to the facts which are, or should be, common to both parties, and which immediately and materially affect price, in the estimate of those who buy and sell, the contract is entered into upon the supposition, that no advantage will be taken by one party, of his superiority of knowledge over the other.
In his fifth chapter, the author continues the same subject, and recapitulates the rules and principles established in the preceding chapter, applying them to all contracts of mutual benefit, contracts of hazard, cases of mutual error, and implied warranty of sort and quality; and considers the different effects of error and of intentional concealment. The next contains a long digression on the question, When, and how far, may positive law, in administering justice between man and man, differ from the strict honesty and good faith required by conscience?' He concludes, that it can never be either right or expedient for civil tribunals to establish rules of justice, varying from those pronounced by the tribunal of conscience, unless when compelled by absolute necessity, or manifest public utility ; and in the seventh chapter, he endeavors to show, that the strict rules of honesty, regarding inequality of knowledge, or of price, &c. ought to be the governing principles of the whole law of contracts. This he infers from their partial adoption in the law of insurance, in the doctrines of courts of equity, and in the Roman civil law. And he insists, that the only exception to the generality of this position is to be found in the acknowledged fact, that human tribunals must be guided in their application of these doctrines of legal ethics, as well as restricted in the practical remedies they furnish, by those regulations which public policy has established, as to prescription or limitation, the civil character and condition of parties, uniformity of decision, commercial usage, and positive rules of evidence.
Wherever these principles of morality have been adopted, in the practical administration of justice, they have commanded the unqualified approbation of men of common sense, and those versed in the business of human life, as well as of those master minds, who have looked at law as a science, founded upon principle and governed by reason. Such is the case with the whole body of the law of insurance, with all those heads of equity jurisdiction, arising from the peculiar relation of confidence and trust between certain parties, which we have before adverted to. So, too, the common law courts have remarkably deviated from the general analogy of their own rules, and obeyed the dictates of the purest morality, in that class of cases, which relates to the payment of forged bank notes, or negotiable paper, where both the parties are equally ignorant of the forgery.
'If, then,' says Mr Verplanck, these principles are just in themselves; if they are congruous to the common notions of men; if they are capable of being practically applied ; if, in the affairs of the greatest magnitude and interest, they have been found not only expedient to be used as legal rules, but even absolutely necessary, why should they not be universal? why should that part of our law, which enters into and affects every man's daily concerns, be disgraced by contradictions, which, if they were nothing more than deviations from the rest of the system, would be useless and perplexing? How much worse, if these deviations afford shelter for dishonesty, if they are repugnant to the usages of trade, and the common reasonings of civilized men ?' p. 195.
The eighth chapter contains a view of the practical result of those doctrines of law and equity, which arbitrarily vary from the rules of natural justice, their confusion and contradiction, and the bad effects they have produced on the public morals. Allusion is made to the liberal spirit of legal improvement, which is now abroad in the world, and a strong desire is expressed, that it should embrace the law of sales. In the opinion of the author, no more practical or beneficial innovation could be made in our civil jurisprudence, than to introduce the rules of the Roman law, as to implied warranty of quality and kind. This he would have done, not piecemeal, or in insulated decisions, which only create confusion, but thoroughly and upon principle.
The principles of the ancient civil law, and the modern European codes founded upon it, might be embodied in the language of our own system of jurisprudence, by merely expanding into general provisions, what has already been decided in numerous particular cases. With this view, the author recapitulates, in his eighth and last chapter, the principles and rules, which his arguments tend to establish. These, we presume, he did not mean to offer, as the project for the text of a written code on the subject, for it would then be deficient in that precision, which is so difficult, and at the same time so necessary to be attained in every system of written law; but only as a
summary of his own principles and views. Considered in this light, we regard this collection of axioms and corollaries as of great value, exhibiting the ingenious theory of the author in a condensed form, and illustrating his reasonings in support of it. We regret that we have not room to insert this summary, which would probably convey to our readers a clearer notion of the author's views, than will be gathered from the imperfect analysis we have attempted of a work, which we regard as one of the most original and interesting publications upon the theory of jurisprudence, that has recently appeared.
We heartily concur in the wish, expressed by Mr Verplanck, that it may excite public attention to the improvement of this title of the law of contracts, and we will add our desire, that he may be induced, by the success of the present attempt, to turn his attention to other projects of reform in legislation. An attentive examination of several titles of positive law, such as the statute of frauds and limitations, for example, would tend to expose the defects, uncertainty, and contradictions of the system of judicial interpretation, amounting in effect to legislation, which has perverted the original policy of these wise laws, and calls for a revision of their text, with the view of clearing up the obscurities, which originally adhered to it, or have been interpolated by the excessive latitude of construction, which has been indulged with respect to them. At the same time, we would not be understood as meaning to deny, that many excellent rules are contained in the body of judicial decisions upon these statutes, which would furnish valuable materials for a new builder to construct an edifice more harmonious in its parts, and better adapted to promote the purposes, for which it was designed.
ART. II.-1. De Pentateuchi Samaritani Origine, Indole, et
Auctoritate, Commentatio Philologico-critica. Scripsit Guli-
sis Librariæ Rengerianæ, 1815. 2. Jesu Christi Natalitia piè celebranda, Academia Frideri
ciane Halensis et Vitebergensis consociate Civibus indicunt Prorector et Senatus. Inest Guliel. GESENII, Theol. D. et P. P. O. de Samaritarum Theologiâ er Fontibus ineditis
Commentatio. Halæ, in Librariâ Rengerianâ. 3. Anecdota Orientalia, edidit et illustravit GULIEL. GESE
NIUS, Philosophiæ et Theologiæ Doctor, hujusque in Academia Fridericianâ Halensi Professor publicus ordinarius, Societatum Asiaticæ Parisiensis et Philosophicæ Cantabrigiensis Socius. Fasciculus primus, Carmina Samaritana complectens. Lipsiæ, 1824. Impensis Typisque Fr. Chr. Guil. Vogelii.
(Also entitled] Carmina Samaritana e Codicibus Londinensibus et Gothanis, edidit et Interpretatione Latinâ cum Commentario illustravit GULIEL. GESENIUS &c. Cum Tabulá lapidi inscripta. Lipsiæ, 1824. The existence of the Pentateuch, or the five books of Moses, among the Samaritans, written in the peculiar alphabetic character which they employed, and which differed much from the Hebrew square character, was known in very ancient times to such of the Fathers, as were acquainted with the Hebrew language. Origen, in commenting upon Numbers xi. 1, Says, και τουσών μνημονεύει Μωϋσής έν τους πρώτους του Δευτερονομίου, ά και αυτά έκ τού τών Σαμαρειτών Εβραϊκού μεταβάλομεν, αnd these things Moses makes mention of in the first part of Deuteronomy, which we have also transferred from the Hebrew copy of the Samaritans. Again, on Numbers xxi. 13, he says, kad covriv pápentas Μωϋσής εν Διυτερονομίων
, δέν μόνοις τών Σαμαρειτών εύρομεν, these things Moses mentions in the book of Deuteronomy, which we found only in the Samaritan copy. Jerome, in his prologue to the book of Kings, says, Samaritani etiam Pentateuchum Mosis totidem literis scriptitant, figuris tantum et apicibus discrepantes. By totidem literis, he means as many letters as the Hebrews and Chaldeans used, that is, twentytwo; although the forms of the Samaritan letters differed from those which the Jews employed. Again, in his Questiones in Genesin, on chap. iv. 8, he says, Quam ob causam,
Samaritanorum Hebræa volumina relegens, inveni &c. These, with one or two more references of a similar nature in Origen and Jerome, constitute the evidence which we have that the Samaritan Pentateuch was known, in very ancient times, to such of the Fathers as devoted themselves to the crititical study of the Hebrew Scriptures. From the time of Jerome down to the first quarter of the seventeenth century, no traces appear, in the history of criticism and sacred literature, of any knowledge among Christians, whether the Samaritan copy of the law of Moses was still in existence. In the year 1616, Petrus à Valle bought of the Samaritans, at Damascus, a complete copy; which was sent, in 1623, by A. H. de Sancy to the library of the Oratory at Paris. J. Morin briefly described this copy, not long afterwards, in the preface to his edition of the Septuagint, A. D. 1628. Soon after this he published his Exercitationes Ecclesiasticæ in utrumque Samaritanorum Pentateuchum ; in which he extols very highly the text of the Samaritan Pentateuch, preferring it above the common Hebrew text. About the same time, from the copy purchased by à Valle, Morin printed the Samaritan text of the Paris Polyglott, and from this Walton printed the Samaritan text in the London Polyglott, with very few corrections.
In the mean time, between the years 1620 and 1630, archbishop Usher, so distinguished for his zeal in the cause of sacred literature, and for the knowledge of it which he himself acquired, had succeeded by persevering efforts in obtaining six additional copies of the Samaritan Pentateuch from the East, some of which were complete, and others incomplete. Five of these are still in England, deposited in different libraries; and one, which the archbishop presented to Ludovicus de Dieu, appears to have been lost.
In 1621, another copy was sent to Italy, which is now in the Ambrosian library at Milan. About the same time, Peiresc procured three copies of the Samaritan Pentateuch ; two of which are in the royal library at Paris, and one in that of Barberini at Rome.
To these copies others have since been added; so that Kennicott was able to extend the comparison of Samaritan manuscripts, for his critical collection of various readings, to the number of sixteen. Most of them, however, were more or less defective, in regard to parts of the Pentateuch.