For several reasons the older English text-books on contracts, and the American treatises based on them, have ceased to represent the actual state of the law in England and in this country.

1. Recent English legislation has to a large measure assimilated the doctrines of common law to those of equity, and has committed to a common judiciary the administration of both branches of jurisprudence. The older English rulings, therefore, so far as they were based on a system now abrogated, are no longer authoritative in England;l while in most of our states they have not, so far as they sustained at common law doctrines repudiated in equity, been regarded as at any time authoritative. The recent English rulings, therefore, as embodied in the treatises of Mr. Pollock, Mr. Leake, and Sir W. Anson, are far more in sympathy with our system, as a whole, than are the older English rulings as embodied in the treatises of Mr. Powell and Mr. Chitty. The need, it is true, for such a work as I now offer has been much lessened by the excellent American editions of the treatises of Mr. Pollock and Sir W. Anson. But we should not forget that our jurisprudence, so far as regards these important changes, took the lead of that of England; and that the cases in this country in which these changes are discussed are vastly more numerous, and many of them more carefully considered, than are the cases within the same range in England. It is proper, therefore, that in a work on contracts, American jurisprudence should not at least be postponed to a jurisprudence which, in this relation, is its junior and which has been less elaborately mapped out.

1 See as applying the rule that, ble as distinguished from common law under the judicature act of 1873, a doctrine, Walsh v. Lonsdale, 46 L. T. common law court must adopt equita- N. S. 858 (1882).

2. The law of contracts being in many of its aspects cosmopolitan, English judges and authors sought, from the earliest times of which we have a record, to discover how contracts were considered in what they called the "civil" law. But for a long time their opportunities of accuracy in this respect were not great. The Corpus Juris has only within the last few years been cleared of glosses and interpolations which made some of its most important passages senseless if not erroneous; and the treatise of Gaius, which has proved so valuable in elucidating the text, was only discovered thirty years ago. The foreign jurists who were until within twenty years cited in England were either scholastic casuists speculating on an unreal world, or servile commentators expanding a corrupted text.1 Now, however, Savigny's great works on contracts and on the Roman law as a system are accessible, in annotated translations, to bench and bar; and Savigny's conclusions are cited by English judges as the basis of many of their most important decisions, while Mr. Pollock, in a treatise which I think the best that England has given on contracts, when he does not rely on Savigny as final, differs from the great master with hesitancy, making him the basis even for a departure. Yet Savigny is not to be regarded as having settled the multitudinous questions which arise in this branch of jurisprudence. Milton tells us of an "anarch old Who by decision more embroiled the affray.".

1 Of the inadequacy of the older English standards an illustration may be found in the case of Jordan v. Elliott, decided by the supreme court of Pennsylvania in March, 1882 (12 Weekly Notes, 56). In the opinion of the court, Blackstone is cited to the effect that fear, to constitute a defence in cases of duress, must be such fear as a person of courage and firmness would be likely to yield to ; and Black-stone, in a passage quoted from him, states that the "civil" law took this position. Now, though this was the view of some of the scholastic civilians, the Roman jurists, so far from this being their opinion, held that, in determining the question whether consent was extorted by fear of violence, the distinctive characteristics of the assailant and of the assailed were to be considered. See infra, sec 147. And this is the conclusion reached by the supreme court of Pennsylvania in this interesting case, dissenting with evident reluctance from Blackstone in a matter in which Blackstone relied on authorities who misrepresented the Roman law.

This, from a fundamental law of thought, must be the case with judges and jurists as well as with "anarchs." Every new position advanced, no matter how wisely and lucidly, gives rise to multitudes of new distinctions, it being necessary to show how far it affects each new and varying case. This is eminently so with Savigny, whose office it was not to codify but to issue germinal principles to be developed by those who should follow. Of this we have an interesting illustration in a thoughtful German work on contracts recently published,1 which shows how the tendency of thought with us and that in Germany are unconsciously approximating in this relation. Nothing is more remarkable than the modification, in recent English and American cases, of the doctrine of consideration. For nearly a century it was held that a consideration must be either a benefit to the promisor or a detriment to the promisee. Gradually, however, it was seen that the first alternative was superfluous, and that no benefit to the promisor was a consideration unless it was a detriment to the promisee. The conclusion, it was true, was not very lucidly expressed; the consideration, it was said, must " flow" from the promisee ; but, no matter how the rule was stated, it is now settled. There must be detriment of some kind to the promisee; it may or it may not be that the promisor is benefited by the bargain, but detriment to the promisee there must be. Now it is an interesting fact that this is the conclusion to which Schlossman comes after a copious and subtle discussion, not only of the Roman standards, but of the philosophy of modern jurisprudence. I mention this book in this place because I did not obtain it until my chapter on consideration was in the printer's hands. Other illustrations of the way in which German authorities have recently been invoked to sustain the conclusions of English judges will hereafter be given in detail. It is enough now to say that even if our sole object be to reproduce English jurisprudence, no book on contracts can meet the present need unless it at least gives us what is said by great German commentators now recognized in England as authoritative in the jurisprudence common to Germany and England. We cannot verify English decisions based on German authorities without seeing what it is that these authorities say.

1 Der Vertrag, von Dr. Siegmund Schlossman, Leipzig, 1876.

3. I think, also, it is important to take into account the influence exercised on jurisprudence by the kindred science of political economy. Lord Kenyon, who was a tory, based his decision, in Waddington's case, that it is illegal to buy up produce on speculation, on the paternal theory of political economy; and he took particular pains to condemn the theory of laissez faire, announcing that he held Adam Smith's doctrines in this respect to have been satisfactorily refuted.1 Lord Campbell, a liberal, and upholder of the theory of laissez faire, held just the opposite, arguing that freedom to bargain is a right with which government, except in cases of necessity, ought not to interfere.1 - It is on this important issue that we find one of the most marked contrasts between the tendency of recent English and that of recent American adjudication. In England free trade principles (although the recent Irish land bill is a striking exception) are dominant, and this is to be seen not only in the repudiation of the old rulings as to forestalling and regrating, but in the assigning of almost unchecked liberty to the right to contract. In this country, on the other hand, free trade principles (whether rightly or wrongly it is not within the province of the present work to consider) have at least not been accepted as part of the national creed; and we find as a result numerous decisions of our courts restricting freedom of contract. Not only is it held in almost all our states, and by the federal courts, that agreements to release from liability for negligence are invalid though couched in terms which would be legal in England,2 but our courts have decided that agreements to fix the price of labor,3 agreements to control transportation,* and agreements to absorb a staple,5 are invalid, although similar agreements have been sanctioned in England. It is enough, in order to explain the large space which these and cognate rulings occupy in the present work, to say that they are not only distinctively American, but that they peculiarly demand accurate and prominent statement and classification. If public policy is to determine whether contracts are valid or otherwise, it is important that public policy should be clearly defined.6.

1 See Lord Kenyon's opinion in R. v. discussion in Criminal Law Magazine Waddington, 1 East, 143 et seq., and for Jan. 1882.

4 One other distinctive feature of our American jurisprudence-a feature which each day becomes more marked-is its copious minuteness of differentiation. An English critic has.

1 Hilton v. Eckersley, 6 E. & B. 62.

2 Infra, sec 438.

3 Infra, sec 439.

4 Infra, sec 442 a.

5 Infra, sec 442.

6 As to constitutionality of such legislation, see infra, sec 1064.

complained of the multitudinous mass of citations in my other works. I do not see how this can be avoided. There is no state in the Union in which a student is not entitled to know the cases decided on any given topic by the court by whose law he is bound ; and in addition to the federal reports, of which we have at least twelve volumes issuing annually, we have annual reports from thirty-eight states. But there is another reason for the citation of all the cases from each state bearing on each point discussed. The more extended the induction, the more satisfactory is the conclusion reached; and, independently of this reason, each new case, especially where new conditions of society intervene, gives a new phase in which the doctrine at issue may be tested. My duty, in the preparation of my other works, has required me to carefully examine for the last few years the reports of all our courts; and from these volumes I have noted whatever bears on the points discussed in the following pages. In some of these reports will be found opinions in which the questions at issue are discussed with an ability at least equal to that of contemporaneous English judgments. But be this as it may, there is no state the decisions of whose supreme judiciary should not be cited in a work professing to aid practitioners and students in the United States. And this citation is what I have here undertaken to give.

My particular acknowledgments are due to John Douglass Brown, Jr., Esq., of the Philadelphia bar, for valuable aid received from him in verification and correction for the press. If the cases cited are uniformly accurate, as I believe will be found to be the case, it will be largely due to his conscientious diligence. I desire, also, to express my indebtedness to Professor L. von Bar, of Gottingen, one of my colleagues in the Institute of International Law, not merely viii for his admirable printed expositions of several of the topics I here discuss, but for the suggestions as to authorities he has been kind enough to give me in our private correspondence.

F. W.

Narragannsett Pier, R. I., Sept. 24, 1882.