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THE LAW OF CONTRACTS, by Theophilus Parsons, LL.D., Professor of Law in Harvard University, at Cambridge. Volume 1, pp. 776. Boston, LITTLE, BROWN & C., 1853.
Such is the title of the most comprehensive treatise on the Law of Contracts that has yet been printed in the English language. From the successor of Joseph Story, and from an author having access to the best English law library in the world, and accustomed daily to expound from the Professor's chair the doctrines of which he has treated, we had a right to expect a work of the first order. There could be no excuse for a crude production.
We hoped to find in the work some improvement in the manner of stating and illustrating the subject. The great fault of Chitty's work is that it treats the Law of Contracts very much as if it was a miscellaneous collection of independent precepts. Our elementary treatises generally have not sufficiently recognized the great fundamental fact that cases are no more than the practical application of legal principles which had a perfect and authoritative existence before the case was decided. They have been quite too much confined to digesting and arranging the cases, without attempting to state in scientific language the principles which the Judge sought to apply in making the decision. Now it is obvious, that to decide a case correctly, unless by mere chance, a Judge must have such a clear conception of the principle of law to be applied, that he can define it in language, without reference to the facts before him. The perfect legal idea must be comprehended as having an existence and authority according to its true expression in language, before it is applied to the facts-before the judgment.
These principles then, are the first things to be stated by an authorthe first things to be studied and mastered by the student. After this, the author may cite his cases to illustrate those principles, and the student may examine the cases to see how principles are applied and to render his scientific conceptions more full and familiar. Such, in
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our opinion, is the true theory of writing and studying law; and we are none the less confident of its correctness, because there are few schools competent to impart, and but few students disposed to attain, a thorough and comprehensive knowledge of the principles of law. Until schools for legal instruction are as numerous and well attended at least as those of Divinity and Medicine, so long as young men rush into professional practice with the least amount of legal knowledge that will obtain admission to the bar; the number of overruled and qualified cases is not likely to be any less nor is it likely that there will be dearth of legal doubts, subtleties and abuses. With no Law School in New York and that flourishing Institution in Massachusetts, where so much of the legal talent of New England partakes of a thorough, liberal and uniform instruction, let us not be surprised that there are twice as many conflicting, doubted and reversed cases in the reports of New York alone as in those of all the New England States together. In view of such a fact, it should be no matter of surprise that, with the exception of the commentaries of Chancellor Kent, which were originally lectures before a law class in Columbia College, Massachusetts alone produces two of the higher order of professional treatises to one produced in New York. Nor should we think it strange that Massachusetts supplies so many men whose minds are enriched with those enlarged and Kiberal legal attainments that render them competent for high offices at home and abroad. Such striking and mortifying facts are to a large extent the natural result of our defective system of legal education, or rather to one utter want of all system of legal education in New York.
But we have been carried very far from the volume before us. After what seems to us an adequate examination, we cannot hesitate to pronounce this work, if completed in the manner of the present volume, to be by far the most scientific, complete and satisfactory treatise yet published on the Law of Contracts.
Though in here and there an instance, the author may have exhibited that flowing facility of language of which he is a master, though there may not be universal acquiescence as to the advantage of some of his divisions of the subject, yet the work appears to be nowhere in substance defective; and as a whole it unites more of the substantial merits of legal authorship than can elsewhere be found, unless in a few very celebrated examples. The style is easy and perspicuous, and the idea intended to be conveyed is not left in doubt. The volume everywhere shows the author to be familiar with his subject and to have spared no expenditure of labor in the examination of his materials. It throughout exhibits much more evidence of having been produced under the stimulus of high and honorable professional ambition, than from any direct reference to pecuniary reward. Hence it is elaborate and complete. The index is ample, filling seventy-five closely printed pages. There are 6000 cases cited, which fill, in double columns, one hundred pages; and an ample table of contents is prefixed. We are assured in the preface, that no case has been cited on the authority of an index or digest, or without an actual investigation of the case and a subsequent independent verification of the citation. This is certainly writing in good faith and with as
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much care as the profession can demand. We hope this work may contribute something to elevate the standard of legal authorship.
What particularly commends the work to our favor, is the scientific manner of treatment adopted by the author. He says in his preface, "I have endeavored to state in the text what I think to be the law; and in the notes, I have endeavored to enable the reader to judge for himself whether I am right."
This plan seems to have been rigidly carried out. The result is that the text contains a clear statement of the general and established principles of law, which the student should first thoroughly master; while the notes, containing ample quotations from the principal cases, enable the practitioner to select such peculiar applications of those principles as best illustrate the subject of his investigation. It is therefore very rare that any discussion of cases is found in the text. The author's conception of the principle is stated connectedly and in its entirety. This is of great advantage to the student, and will contribute much to cause a general acquiescence, where the law is not fully settled, in the conclusion of the author. The various conflicting opinions are at the same time indicated in the foot notes.
We have been thus careful in calling attention to this original feature of the present volume, because we are confident that many of our ablest treatises are faulty in this particular, and that many points of law remain unnecessarily in doubt for that reason.
For illustration: would not many doctrines of law now unsettled, have been quite at rest, at the present time, if so authoritive a writer as Sir Edward Sugden had stated with clearness and directness what he regarded as the law in all cases; and left to the obscurity of a foot note, the various theories which had been stated? Had Lord Eldon positively decided what he was called upon to decide, (and if he said any more,) expressed an opinion instead of recording a doubt, and deepening the obscure lines of a subtle distinction, he would have been a much more useful Chancellor. No man who cannot form a decided opinion on a question of law, and who dare not or cannot express that opinion in unequivocal language, is fit for an author or judge. Dogmatism is to be avoided; but an author should be first certain his opinion is well. founded, and should then express it in decided language.
If there is reason for the practitioner to be cautious let that appear in the notes. The worst of all legal writings are those that are but a continual balancing of probabilities and weighing of dicta and doubts; such authors involve everything in uncertainty. A succession of Lord Eldon's would have sunk English Chancery Law to hopeless depths of doubt. The student who reads such writings will conclude that there are no settled rules of law; and the Judge who consults them will stand about an even chance of giving an illegal judgment; as he will conclude that the decided cases leave him at liberty to gratify the prejudices of
In illustration of what we have already stated, that the present treatise is much more comprehensive than any hitherto published, we will cite the titles of a few chapters devoted to subjects not treated of at all
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in any similar treatise, or only incidentally treated: Servants; Attorneys; New parties by novation; Indorsement; Slaves; Persons outlawed, attainted, excommunicated; Consideration; Assent of parties; Hiring of real property; Hiring of Persons; Marriage, &c. It will be borne in mind that each of the above are titles of distinct chapters. The chapter on Slaves is one of great and painful interest and affords information not readily elsewhere accessible to most lawyers in the free States and must be of great value in the slave States.
The character of the work may be further illustrated by examining the subdivisions of one of the above chapters-as the one on consideration, a subject not usually very fully or separately treated.
This chapter fills forty-five pages and is divided into sections, entitled as follows:-Necessity of consideration; Kinds of consideration; Adequacy of consideration; Prevention of Litigation; Forbearance; Assignment of debt; Work and Service; Trust and confidence; A promise for a promise; Subscription and contribution; Of consideration void in part; Illegality of consideration; Impossible consideration; Failure of consideration; Rights of a Stranger to the consideration; The time of the consideration.
A glance at these topics will show how much more ample are the discussions of this treatise than those of any other on the same subject; and we can safely declare that these topics are closely and learnedly examined.
The meaning of the phrase nudum pactum and the general doctrine of a consideration, as explained in the civil law, are clearly expounded. The Law of Agency, Bailments, Partnership, &c., are discussed in separate chapters. The present volume contains an announcement that its companion will soon appear and will discuss the law of Construction, Usage, Extrinsic evidence, Law of Place, Damages, Defences, Limitations, Frauds, Usury, Insolvency, the constitutional Provisions relative o contracts, &c., &c.
In taking leave of this volume we deem it but justice to say, that it is a monument of rare professional learning and ability, most usefully and honorably applied. This treatise cannot fail to become the standard work on the subject, nor to satisfy the profession that the successor of Judge Story is eminently worthy of the distinguished position he holds. And it is another demonstration of the unrivalled utility of the Law School at Cambridge.
The printing and binding are in the best style of the publishers, and the volume appears to be absolutely free from typographical errors, if that be possible. E.