1.2.1.1 B. The Emancipation and Evolution of the Substantive Law of Contract

B. The Emancipation and Evolution of the Substantive Law of Contract

As J. H. Baker has observed, Slade's Case, decided in 1604, marked "the final stage in the unification of the law of contract through the action of assumpsit."[124] But this does not mean that the modern concept of contract with all its constituent elements had arrived. The development of a unified theory integrating the strands contained in the various writs of assumpsit was retarded for some time by the intricacies and complexities of the writ system; the classical law of contract is really the child of the late eighteenth and nineteenth centuries.

Since the principles of the common law developed around the forms of action treatises it on is not pleading surprising enjoyed that such the great prestige.[125] During and the golden age of pleading - the nineteenth century - pleading became an art in its own right. Its rules were regarded as logically derived from accepted principles and hence as inevitable, and the view was widely held that "any radical change would inflict damage not only on the law of pleading but on the common law as a whole."[126]

To be sure, Lord Mansfield informs us that the "substantial rules of pleading were formed on a strong sense and soundest and closest logic."[127] Unfortunately, however, quite a few rules did not live up to these high expectations, but rather shielded the unscrupulous pleader so that many a good case was lost and a bad one won before it came to trial.[128] Pleading, in Maitland's words, had become "the most exact if not the most occult of the sciences." This affected the emerging substantive law, which was, in Maine's words "secreted in the interstices of procedure." In an action of assumpsit for breach of an informal promise, the forms of pleading "had been settled," according to the prevailing view, in the sixteenth and seventeenth centuries and remained unchanged until the nineteenth.[129] Because of the technical pleading requirements peculiar to assumpsit, the inference was drawn, early on, that in an executory contract the exchanged promises were dependent in the making but independent in the performance stage, unless the parties had expressly agreed otherwise, with the result that the exchange relationship remained unprotected. Thus, the buyer of the cow in Nichols v. Raynbred[130] had to pay for the undelivered cow and then bring his own separate action. The transition from promise to contract occurred very slowly indeed.[131]

Another formidable roadblock to the development of a substantive law of contract was the dominant role of the jury in a lawsuit. The line of demarcation between the domains of court and jury, law and fact, was to begin with not clearly drawn. So long as this state of affairs persisted, a "mechanism" for the development of contract law was lacking.[132] "What was a contract and what not was a question of fact."[133] As late as 1847, the determination of the measure of damages in a contract action was still a jury matter.[134] Not until 1854, when Hadley v. Baxendale was decided, did a law of damages begin to take shape.[135]

This state of affairs was highly detrimental to the commercial community, which needed clear-cut rules of law. England had become the foremost commercial nation of the western world. New forms of commercial transactions had to be dealt with. The terms and risks involved were of greater complexity than those associated with the land-based transactions of an earlier period.[136] An ordinary jury was not up to the task of dealing with these new fact situations. Small wonder that in the eighteenth century enlightened members of the profession reacted favorably not only to demands for ridding the legal system of inequities, uncertainties and delays, but also to the demand to bring order into the chaos by-creating a coherent system of substantive law.[137] Living in a rational and cosmopolitan age, they became convinced that the law could be mastered only by going back to fundamental principles (frequently called axioms or maxims)[138] and not by the "crude pragmatism" of Rolle's and others' Abridgments, which arranged their materials according to the forms of action, sometimes presented simply in alphabetical order.

The professional elite in search of a system sought guidance in the Digest, in the civilian literature on natural law and jurisprudence, and in writings on commercial and admiralty law.[139] Unsurprisingly, these ideas had a strong influence on Lord Mansfield, who once declared: "The Law of England would be a strange science if it were [based] on precedents alone. Precedents serve only to illustrate principles."[140]

Going beyond Lord Holt,[141] Lord Mansfield had the courage to break with the dominant role of the jury in commercial cases. In remaking the laws of shipping, insurance and commerce, a thorough familiarity with the customs and practices existing in the world of trade and commerce was, he felt, indispensable, To bring the necessary information to his court, he dared to change the role of the jury drastically. He sought the advice of "knowledgeable" and "substantial" merchants who, informed of the issue in litigation, gave him the information on commercial practices needed to assure protection of good faith dealing between honest merchants.[142] The role of "Lord Mansfield's jury" was advisory only. His court, when sitting in banc, was the final arbiter as to whether a given practice, carefully written down in his famous notebooks,[143] deserved to become part of the law of merchants and thereby of the common law. Furthermore, Mansfield's technique of interpretation was guided by his conviction that it was the intention of the parties and not the accidental features of the particular forms of action which determined the scope of the contract.[144] Mansfield also succeeded in streamlining the practice of procedure so as to enable his court to give speedy justice,[145] but he failed in his effort to merge law and equity (this had to wait for another hundred years).[146] Moreover, his success in rationalizing the doctrine of consideration by making a commercial promise in writing as binding as a promise under seal was short-lived;[147] again he was ahead of his time.[148]

The impact of Lord Mansfield's innovations was eloquently praised by Buller, J. in his valedictory address shortly before Lord Mansfield’s retirement.[149]

Within the last thirty years the commercial law of this country has taken a very different turn from what it did before. We find in Snee v. Prescot [1 Atkyns 245] that Lord Hardwicke himself was proceeding with great caution, not establishing any general principle, but decreeing on all the circumstances of the case put together. Before that period we find that in Courts of Law all the evidence in mercantile cases was thrown together; they were left generally to a jury and they produced no established principle. From that time we all know the great study has been to find some certain general principles, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard these principles stated, reasoned upon, enlarged and explained, till we have been lost in admiration at the strength and stretch of the human understanding. And I should be very sorry to find myself under a necessity of differing from any case on this subiect which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country.

Of course, Mansfield had his detractors as well.[150]

Attempts to give a general account of English law in terms of its guiding principles were repeated time and time again. Blackstone's Commentaries on the Laws of England (1765-1769), preceded by an Analysis of the Laws of England (1765), is the most outstanding example.[151] Blackstone was a contemporary and admirer of Lord Mansfield and his work shows Mansfield's influence, particularly in later editions.

Vinerian Professor of English law at Oxford, Blackstone set himself the formidable task of doing for the common law what had already been done for the civil law by the civilians, and to a large degree he succeeded. Inspired by the great philosophers of the Enlightenment[152] (whom he used but did not always follow)[153] Blackstone set out to cover the whole law of England, both public and private - an undertaking that had not been attempted since the days of Bracton.

The Commentaries - intended to justify and preserve the social order that the Revolution had established - open with praise for the English system of protecting life, liberty, and private property. "To Blackstone the common law was the most fitting and ingenious means for fulfilling the law of nature.”[154] Intended as an elementary text addressed to beginning students[155], and to the educated public, the Commentaries are written in an agreeable, often eloquent style that is easy to follow since it is not burdened with an embarrassing richness of detail. (Intricate parts of the law of inheritance and of property are often omitted or glossed over.)

The Commentaries came at the right moment and' satisfied a need for bringing the multilayered common law into a rational system of substantive rules. Blackstone transformed law, the "dreariest of all sciences," into a respectable subject matter worthy of being taught at the university. Moreover, the Commentaries did not offend the Establishment by advocating radical reforms.[156]

“The eighteenth century,” as soon by Blackstone, "was stable and felt itself stable.”[157] The French Revolution and the Napoleonic wars were still decades away, and the Industrial Revolution had just begun.

This introduction will not undertake to discuss the Commentaries as a whole, nor to examine their deficiencies, which have often been commented upon,[158] but will focus on Blackstone's contribution to the law of contracts. The treatment of contracts in the Commentaries has "vexed" modern commentators, according to Milsom. Inspired by Hale's system (supra p. 42), the four books of the Commentaries distinguish between Rights of Persons (Book I), Rights of Things (Book II), Private Wrongs, including the organization of courts and the formulary system (Book III), and Public Wrongs (Book IV). The first book deals with constitutional law, the second with the law of property. Book III deals with civil procedure and the court system, Book IV with criminal law and procedure. Chapter 30 of Book II, devoted to the Rights of Things, contains a discussion of contract as a means of acquiring property. "A contract, which usually conveys an interest merely in action, is thus defined: 'an agreement, upon sufficient consideration, to do. or not to do a particular thing'" (at 442). The passage continues: "From which definition there arise three points to be contemplated in all contracts; 1. the agreement: 2. the consideration: and 3. the thing to be done or omitted, or the different species of contracts" (at 442). Express and implied executory and executed contracts are distinguished (at 443). Express contracts are those in which the terms of an agreement are openly uttered and avowed at the time of the making. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform (at 443). This is followed by the observation (at 446) that the most usual contracts whereby the right of a chattel may be acquired are "1. That of sale or exchange. 2. That of bailment. 3. That of hiring and borrowing. 4. That of debt[!]." The discussion of consideration is not of particular interest.

In the third book, Blackstone returns to the distinction between express and implied (implied-in-law) contracts. These are divided into two groups. The first includes judgment debts, forfeitures and statutory penalties (ch. 9, at 158-160); the discussion of this group is most interesting, for its shows Blackstone's indebtedness to natural law theory. According to Blackstone, these types of contracts "are necessarily implied by the fundamental constitution of government, to which every man is a contracting party" (at 158). With regard to sentences and assessments, he continues: "it is part of the original contract, entered into by all mankind who partakes the benefits of society, to submit in all points to the municipal constitutions and local ordinances of the state of which each individual is a member" (at 158).

The second group is made up of obligations "by natural reason and the just construction of law." These extend to "all presumptive undertakings or assumpsits; which though never perhaps actually made, yet constantly arise from this general implication and intendment of the courts of judicature, that every man has engaged to perform what his duty or justice requires" (at 161). This group includes the common counts, the action for money had and received, and the action of account.

This last class of contracts, implied by reason and construction of law, "arises upon this supposition, that everyone who undertakes any office, employment, trust, or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence, and skill" (at 163). Nowhere, in all of this, is a clear distinction made between contracts implied in fact and those implied in law. (Hertzog v. Hertzog, infra p. 147).

The contract of employment is not mentioned in Books II and III.[159] It appears instead in Book I, which is devoted to what Blackstone calls the Rights of Persons. In addition to public relations between magistrates and citizens, Book I deals with private relationships: master and servant, husband and wife, parent and child, guardian and ward.

Blackstone's abbreviated treatment of contracts has often been commented upon.[160] Only a small fraction of the Commentaries is devoted to contracts, which suggests that Blackstone did indeed feel more at home in the field of land law than in the law of commerce. Still, there are many passages in the Commentaries that clearly show that Blackstone was aware of the commercial character of the England of his day. Thus, he quotes a foreign author who had said: "The English people know better than any other people on earth how to value at the same time these great advantages, religion, liberty and Commerce." Moreover, there are repeated references in the Commentaries to "this commercial age" and to the great change in property brought about by the expansion of trade.[161] To be sure, Blackstone does not mention freedom of contract and he failed to anticipate that in the next century contract would come to be viewed as the principal form of social organization. But this lack of vision does not mean that the Commentaries represent only the typical eighteenth-century view that contract law is an adjunct of the law of property.[162]

Blackstone has been called the Gaius of English law. Others surpassed him in depth and originality,[163] but he had a rare gift of synthesis and made a unique contribution to the broad development of English law. To be sure, Bentham - who next to Austin[164] was Blackstone's severest critic - faulted Blackstone for his quietistic conservationism and his uncritical admiration of the legal system as he presented it. But even Bentham had to admit that "first of all institutional writers, [he] taught jursprudence to speak the language of the scholar and the gentleman."[165]

Though the Commentaries never achieved the reputation enjoyed by the work of Coke, they were a huge financial success.[166] “Working edictions,” as Milsom calls them, appeared in England until the Judicature Act. Updated and modernized versions by Sergeant H. J. Stephen have been appearing until recently and have by now reached to more than twenty editions.[167]

The success of the Commentaries in the United States was enormous.[168] More than 2,000 copies went across the Atlantic before the Declaration of Independence; nine editions were published during Blackstone's lifetime. The Commentaries proved to be one of the dominant factors in the development of American law and its institutions, and after the Declaration of Independence their influence helped to prevent the reception of French law. The settlers of the West, who often lacked adequate libraries, were helped by the Commentaries to secure a modicum of order and to build new states out of the acquired territories. James Kent and John Marshall owed their learning and vocation, as they acknowledged, to Blackstone. Edition after edition, as well as condensations of the book, appeared,[169] and were used as teaching tools in universities and law schools - at Harvard, judging by the catalogue, as late as 1850 and at other schools, including Yale, much longer.[170]

Blackstone's success encouraged a new type of legal literature. Treatises appeared on various legal topics, many dealing with the law of contracts.[171] Apart from the medieval work of Christopher St. Germain, Doctor and Student (1530, 1532)[172] few English writers had attempted to speculate about the general principles of contract law until John Joseph Powell published his two-volume Essay Upon the Law of Contracts and Agreements in 1785.[173] Powell’s work, and the treatises of English and American[174] writers that were to follow, possessed, in the words of Simpson, an abstact and speculative character evolved outside the courtroom, a feature lacking in the legal literature of an earlier period.[175]

The common law literature of the nineteenth century drew heavily from civilian writers. Speculative writing on contract and other branches of law had a long tradition on the continent. The works of Grotius, Pufendorf, Domat, Vattel and Burlamaqui, and later of Pothier and Savigny,[176] were available to English and American lawyers and all influenced Anglo-American thinking about law and jurisprudence.

By far the most influential of the continental writers was the French jurist Robert Pothier, whose Treatise on Obligations was published in the United States in 1802 and in England, in the popular Evans translation with elaborate Notes, in 1806.[177]

The influence of these writers on the common law cannot be overstated. English courts, sitting in banc on complex questions of law (a practice introduced by Lord Mansfield in commercial cases), made good use of the information on foreign law presented by the lawyers in their briefs, and frequently filled the gaps in the existing law to create a workable law of contracts.[178]

Gradually, the classical law of contracts took shape, its emergence was reinforced by the teachings of the classical economists with their emphasis on individualism, freedom of trade and of contract. Economics was taught at the university as part of Moral Science and most if not all Victorian judges who had no legal but a broad liberal education were familiar with the works of Hume, Smith, Locke, Ricardo, the two Mills, and the "Philosophical Radicals."[179]

The new, classical law of contracts found expression in a series of treatises which began to appear towards the end of the eighteenth century. Only a few works will be mentioned.[180] William Paley's Principles of Moral and Political Philosophy (1785) contains an impressive discussion of the fundamental principles of contract law, missing in earlier treatments. Chitty's Practical Treatise on the Law of Contracts, enormously successful from the beginning, shows the spirit of the new age in its second edition, and Leake's Elements of Contracts (1867) states in its preface that there had existed previously no English work with the exclusive object of presenting contracts in a general and abstract form apart from its specific applications. Leake's most significant contribution to contract doctrine is the clear distinction between express and implied-in-fact contracts and constructive (implied-in-Iaw) contracts, a third category of civil liability covering cases of unjust enrichment. These treatises had their counterpart in the United States in the works of Kent, the two Storys, Parsons, and Sedgwick.

Simpson summarizes the result of the work as follows:

This survey of doctrinal innovation in contract law is perhaps unflattering to the common law tradition indigenous, judge-made law; the new ideas are largely plagiarized from the civil law, and it is to the rise of the treatise that we must attribute the change in the character and structure of basic contract law, rather than to judicial originality.

Simpson, Innovation in Nineteenth Century Contract Law, 91 L.Q. Rev. 247, 277 (1975).

In the latter half of the nineteenth century, the influence of these systematic treatise writers began to wane and was replaced for a time by the historical school centered in Germany. Maitland described Savigny, the founder of the historical school, as "the herald of the evolution, the man who substitutes development for manufacture, organism for mechanism, natural laws for Natural Law, the man who is nervously afraid that a code should impede the beautiful process of natural growth."[181] Unsurprisingly, text writers in the next generation, like Pollock and Anson, were strongly influenced by Savigny.[182] The chief representative of the historical school in England was Sir Henry Maine (1822-1888)[183] who, unlike Savigny, believed in stages of evolution bringing the law into harmony with society.[184]

Beginning in the middle of the nineteenth century, the effort to construct a comprehensive theory embracing the whole law of contracts was resumed and gained increasing momentum. Building upon the works of Powell, Chitty, Leake, W. W. Story, Kent, and Parsons,[185] their successors sought to construct a closed and unitary system that would articulate the fundamental principles on which the legal system is based. A formalistic approach using high-level abstractions became the fashion. Thus, for example, in the first two editions of Pollock's Principles, the essential components of contract are said to be agreement and obligation, agreement being the outcome of two consenting minds or wills. Later editions of Pollock moved towards an objective theory of contracts stressing its historical basis and the element of good faith reliance rather than the artificial equations of will and intentions.[186]

Langdell, whom tradition has credited with being the originator of the case method of teaching, also emphasized the consensual nature of contract as contrasted with tort liability, and developed an elaborately formalistic system of contract principles. Arguments of public policy had little, if any, bearing on Langdell's analytical constructs. To make his analytical approach work, Langdell had to severely limit the number of cases he included; cases which did not fit into his preconceived system were disregarded as "useless."[187] Williston's "magisterial" treatise, which brought a great deal of order into the chaos of existing case law, was the high point of the formalist period, and the First Restatement of Contracts, for which Williston was the Chief Reporter, followed the lines of his famous text.[188]

The Langdell-Williston scheme was eminently successful and responded to deeply felt needs for rationality and certainty. Inevitably, however, its impressive edifice began to crumble. Unruly case law, rejected by Langdell and Williston and reflecting a polytheism of values, clamored for recognition. It became evident that the "clear ideas" that had led the two to believe that "whatever seemed to be confused does not exist" did not work.[189] Holmes, Corbin, and the Legal Realists (led by Llewellyn) launched an all-out "attack on the citadel."[190] Holmes, who wrote The Common Law with the intention of freeing his generation from the past,[191] tells us on the first page of his book that the life of law has not been logic but experience;[192] law, in Holmes' view, is not a closed system of syllogistic reasoning: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed .... "[193] According to Corbin, all generalizations should be regarded as tentative working rules, continually to be tested and reexamined in light of the sources from society, which they and are the drawn: prevailing the customs, morals of business the time practices, and place.[194] This reexamination is all the more necessary since, "for every question worth calling a problem, at least two contradictory solutions and propositions can be found in past decisions."[195] Corbin, and his disciple Llewellyn, constantly emphasized the significance of the facts of a particular case, the relative economic positions of the parties and the nature and purpose of their transaction. This new and non-formalistic conception of contract law was to have a considerable influence on the courts, and to play an important role in the drafting of both the Second Restatement of Contracts and the Uniform Commercial Code.

 

 

Notes:

[124] Baker at 187.

[125] H.J.. Stephen, A Treatise on the Law of Pleading in Civil Action (1824). It appeared in innumerable editions in England and here. See further E. Bullen & M. Leake, Precedents of Pleading (3d ed. 1868).

[126] Holdsworth, The New Rules of Pleading at the Hilary Term, 1 Cambridge L.J. 261, 282 (1925), quoting Bryant v. Herbert, 3 C.P.D. at 390 (1878) per Bramwell, L.J.

[127] Robinson v. Raley, 1 Burr. 361, 319, 94 Eng. Rep. 330 (1757); Bristow v. Wright, 2 Doug. 665, 128. G. 99 Radcliffe Eng. Rep. & C. 421 Cross, (1781).

[128]. G. Radcliffe & G. Cross, The English Legal System, 181 (G. Hand & J. J. Bentley eds. 1977). As late at 1830 there were seventy variations from which plaintiff had to choose and each writ had its own prerequisites. Use of the wrong writ was fatal and forced plaintiff to begin all over again, so long as no verdict had been reached. In the latter case, the suit was lost forever. Fifoot at 151.

[129] Baker, From Sanctity of Contract to Reasonable Expectations?, 32 Current Legal Probs. 17, 20 (1979).

[130] Contrast Nichols v. Raynbred, infra p. 976, with Pordage v. Cole, infra p. 976; Kingston v. Preston, infra p. 979; Morton v. Lamb, infra p. 983. Francis, supra note 14.

[132] Baker at supra 291, at 20.

[133] Baker at 291. To give an illustration: If, for instance, in an action of assumpsit the defendant pleaded the general issue, i.e. denied plaintiff's allegation in toto, the only question of substantive law for the court to decide was the question of consideration; all the other prerequisites of contract were within the domain of the jury and its inscrutable verdict. Baker, supra note 129, at 20.

This state of affairs illustrates the importance of a special verdict, agreed upon by the parties. See Baker, Slade’s Case, supra note 82. The special verdict was unirvalled as a vehicle for legal development. Milsom at 77.

[134] Black v. Baxendale, 1 Ex. 410, 154 Eng. Rep. 174 (1847)

[135] 9 Ex. 341, 156 Eng. Rep. 145 (1854).

[136] Francis, supra note 14, at 121.

[137] John Stuart Mill on Bentham & Coleridge, at 76 (F. R. Leavis ed. 1962):

The law came to be like the costume of a full-grown man who had never put off the clothes made for him when he first went to school. Band after band had burst, and, as the rent widened, then, without removing anything except what might drop off of itself, the hole was darned, or patches of fresh law were brought from the nearest shop and stuck on.

[138] P. Stein, Regulae Juris 153-159 (1966). A venerable tradition was thereby revived, a tradition going back at least as far as Fortescue's De Laudibus Legum Angliae (lst ed. c.1470). Fortescue, following the approach of Scholastic Aristotelianism, attempted to penetrate to first principles. However we may feel about the success of his approach, the search for and insistence on principles (maxims) has been with us ever since, though maxims often were trivialized (particularly by Coke; the treatment by Bacon is far superior in this respect), This has affected our theories of the judicial process and bears upon the question whether law consists only of rules or includes principles as well as standards. See R. Dworkin, Taking Rights Seriously 14-80 (1977) (especially pp. 22-28). For a penetrating account of the judicial process, see E. Levi, An Introduction to Legal Reasoning (l949); Levi points out that legal analysis uses neither induction nor deduction, but reasoning by analogy.

[139] 1 W. Paley. Principles of Moral and Political Philosophy 15-20 (1825); T. H. Plucknett, A Concise History of the Common Law 299, 300 (5th ed. 1955); Atiyah at 345 et seq.

[140] Robinson v. Raley, supra note 127, at 319, 94 Eng. Rep. at 331. But he adds by way of qualification: ". . . and so appear, when well understood and explained; though by being misunderstood and misapplied, they are often made use of as instruments of Chicane." See further Bristow v. Wright. supra note 127. On Lord Mansfield, see C. H. S. Fifoat, Lord Mansfield (1936); 7 W. Holdsworth, History of English Law 44-45 (1926).

[141] Lord Holt consulted goldsmiths about their usages, Ford v. Hopkins, 1 Salk. 283, 91 Eng. Rep. 250 (1750). But he saw no need for making promissory notes negotiable, Clerk v. Martin, 2 Ld. Raym. 757. Eng. Rep. 1 (1702). A statute, 34 Anne, ch. 8 (1703), had to be passed to remedy the situation.

[142] Lord Birkenhead, Fourteen English Judges 186 (1926); Atiyah at 115-116.

[143] Howard, Lord Mansfield's Notebooks, 93 L.Q. Rev. 438 (1976).

[144] Fifoot, supra note 140, at 18.

[145] Id. at 52-81.

[146] A summary of his point of view is given in 3 Blackstone at 429 et seq. On the fusion of law and equity, see the Judicature Acts of 1873 at 175, briefly discussed at 429 et seq. in Baker On the at fusion 46-48. 97-99. For the evolution of the American law of civil procedure, see C. Hepburn, The Historical Development of Code Pleading in American and England (1897); R. Richard Millar, Civil Procedure of the Trial Court in Historical Perspective (1952); L. Friedman, A History of American Law, 49-51, 126-131, 340-347 (I973).

[147] Pillans & Rose v. Van Mierop & Hopkins, 8 Burr. 1663, 97 Eng. Rep. 1035 (K.B. 1765), infra p. 744. The opinion of Wilmot, J. shows that it was not impossible to find a consideration.

Lord Mansfield's heretical view on consideration was overturned in Rann v. Hughes, 7 T.R. 350 note, 101 Eng. Rep. 1014 note (1778).

[148] For the modern law, see Ch. 3, section 7 and p. 752 infra.

[149] Lickbarrow v. Mason, 2 T.R. 63, 100 Eng. Rep. 35, 40 (1787).

[150] 12 W. Holdsworth, History of English Law 464, 560 (1926). Mansfield was viciously attacked by the anonymous Junius for his leanings toward Roman law. Even Dean Ames of Harvard reportedly could not resist the temptation <;>f calling Mansfield a fraud in front of the law school class on account of his attempt to merge law and equity. See A. Sutherland, Law at Harvard 188 (1967). These criticisms contrast with Lord Birkenhead's high praise: "Coke captured the law merchant for the common law. Holt retained it; Mansfield formally incorporated it into our system." Birkenhead, supra note 142, at 186. See Baker, The Law Merchant and the Common Law Before 1700, 38 Cambridge 1.J. 295 (1979).

[151] In his analysis he mentions some of his predecessors: A. Finch, Law or a Discourse Thereof (1613) (originally in French); T. Wood, An Institute of the Laws of England (1720). He has high praise for M. Hale, An Analysis of the Civil Part of the Law (1713), to whom he acknowledges a great debt (Preface vii·viii). Coke is mentioned with only faint praise. The difficulties Blackstone encountered are illustrated by the frustrations Hale and Wood met in attempting to arrange their materials.

[152] 2 H. Grotius, The Rights of War and Peace (De Jure Belli ac Pacis), chs. XI-XII (F. W. Jure Kelsey Naturae ed. et 1964) (1st ed. 1625); 3 S. Pufendorf, Of the Law of Nature and Nations (De Jure Naturae et Gentium), ch. IV, section 3, and chs. V, VI, IX (1720); E. Vattel, The Law of Nations, or Principles of the Law of Nature (1760); J. Domat, The Civil Law in its Natural Order: Together with the Publick Law (2d ed. 1737); and J. J. Burlamaqui, Principes de Droit Naturel (1748).

It is not possible to reconcile Blackstone's positivism and his natural law theory. See Finnis, Blackstone's Theoretical Intentions, 12 Nat. Law Forum 163-187 (1967). We owe this reference to Doolittle, Sir William Blackstone and The Laws of England: A Biographical Approach, 3 Oxford J. of Legal Studies 89, 108 (1980).

[153] Examples are given in B. Gagnebin, Burlamaqui et le Droit Natural 270 (1944). Burlamaqui was a professor at the University of Geneva; his work appeared in translation shortly after its publication (1748). Burlamaqui's writing influenced the teaching of natural law at Cambridge. The work of Vattel (who also taught at Geneva) was cited for more than a hundred years by the U.S. Supreme Court, 2 J. B. Scott, Law, the State and the International Community 264 (1939). Vattel also influenced Kent’s Commentaries (1826).

[154]. 2 M. Howe, Justice Olive W. Holmes, The Proving Years 1870-1882, 141 (1963).

[155] This was Mansfield's evaluation. For a recent discussion of Blackstone see Milsom, The Nature of Blackstone's Achievements, I Oxford J. of Legal Studies 7 (1981). G. Jones, The Sovereignty of the Law: Selections from Blackstone's Commentaries on the Laws of England (1873), contains, in its Introduction, an admirable discussion of Blackstone. See also D. Boorstin, The Mysterious Science of Law (1941); Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 205 (1979).

[156] This does not mean that he was against reforming a tout prix. He strongly advocated, for instance, reforms of the penal law, Holdsworth, Some Aspects of Blackstone and his Commentaries, [1932] Cambridge L.J. 273, 274.

[157] Taken from G. M. Young, Victorian England, Portrait of an Age 47 (1953), describing the spirit of the period.

[158] H. Levy-Ullmann, The English Legal Tradltlon 148 (1935) (translated by M. Mitchell, revised and edited by F. M. Goadly, with a Foreword by Holdsworth).

[159] Rev. Kahn-Freund, 508-528 (1977). Blackstone's Neglected Child: The Contract of Employment, 93 L.Q. Rev. 508-528 (1977).

[160] Atiayh at 102, 215.

[161] According to Doolittle, supra note 152, at 103, Blackstone's contemporaries did not regard him as an academic, but as "a man of business." He was quite successful in managing the financial affairs of All Souls College as well as his own.

[162] See Horwitz at 162, 163.

[163] Grotius’ Treatment of Contracts is far superior.

[164] J. Bentham, in A Fragment of Government (1881), says of the Commentaries that “they are a superficial defense of an oligarchic constitution and inequitable law.” See Cross, Blackstone v. Bentham, 92 L.Q. Rev. 516 (1976). For Austin's critique see Dicey, Blackstone's Commentaries, 4 Cambridge L.J. 286, 287-288 (1932).

[165] J. Bentham, A Commentary on the Commentaries and A Fragment of Government 413 (J. H. Burns & H. L. A. Hart eds. 1977). In Baker's view, Bentham failed to realize that "Blackstone was both a final survey of the old common law and the first textbook of a new legal era." Baker at 166.

[166] 2 D.N.B. 595, 597.

[167] But the title page no longer states that it is based on Blackstone, and it is no longer called New Commentaries.

[168] L. Friedman, A History of American Law 16, 88 and passim (1975).

[169] Id.

[170] Yale used W. Robinson's version, "more than one hundred years out of date," according to Corbin. See Kessler, Arthur Corbin, 78 Yale L.J. 517 (1969).

[171] They are listed in Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. Chi. L. Rev. 632, 651 (1981).

[172] 91 Selden Society (T. Plucknett & L Barton eds. 1974).

[173] American editions appeared in 1809 and 1823. Powell's treatise was preceded by Sir William Jones’ famous essay on Bailments (1781).  Jones, insisting that law was a science, treated his subject matter in an analytical (emphasizing the first principles of natural reason), historical (comparative law) and synthetic fashion. He aimed at the discovery of axioms flowing from natural reason, good morals, and good conscience. “[I]f law be a science, and really deserve so sublime a name,” he claims, “it must be founded on principle; … but if it be merely an unconnected series of decrees and ordinances, its use may remain, though its dignity be lessened, and He will become the greatest lawyer who has the strongest habitual or artificial memory” (at 123-124). Jones was the first author to call attention to the French jurist Pothier.

[174] See supra note 171.

[175] Simpson, supra note 2, at 252; J. C. Perkins published a fourth edition of Chitty’s Practical Treatise on the Law of Contracts, with appendices, in 1839.

[176] See note 146 supra on Grotius, Pufendorf, Domat, Vattel, and Burlamaqui; R. Potheir, Treatise on Obligations (1802, 1806); and Savigny, 3 System des Heutigen Roemischen Rechts (1840). The translation of Savigny dates to 1860 and was published in Madras.

[177] On the high regard in which he was held, see Cox v. Troy, 5 B. & H. 474, 481,106 Eng. Rep. 1266 (1822); see also Foster v. Wheeler, 36 Ch. D. 695, 698 (1887).

[178] Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854); infra p. 106 (damages); Offord v. Davis, 12 C.B. (N.S.) 748 (formation of contract); Taylor v. Caldwell, 3 B. & S. 826, 122 Eng. Rep. 309 (KB. 1863); Smith v. Hughes, L.R. 6 at B597 (1871) (mistake); Phillips v. Brooks [1919] 2 K.B. 243.

[179] Pollock, A Plea for Historical Interpretation, 9 L.Q. Rev. 163 (1923). English judges from Parke to MacNaughten had no legal education:

There was none to have. Until 1852, where the Common Law Procedure Act furnished at once the need and the opportunity for fudges to think in terms of principles there was no serious study of law at the universities and the old professional training in the Inns of Court where they dined had long disappeared. C. H. S. Fifoot, Judge and Jurist in the Reign of Victoria 21 (1959).

[180] Simpson, supra note 2, at 248.

[181] Introduction to O. Gierke, Political Theories of The Middle Age at xv (1900). We owe the reference to C. H. S. Fifoot, Judge and Jurist in the Reign of Victoria (1959).

[182] F. Pollock, Treatise on the General Principles of Contract Law Concerning the Validity of Agreements in the Law of England (1876). W. Anson, Principles of the English Law of Contract (1879). Anson's book is a good deal less sophisticated than Pollock's, which may explain its popularity. He had no wish to "oppress and dishearten" the students. 1 Oxford Studies at 269. Anson's book had many editions, the latest one by A. Guest (1979). One of the many American editions was edited by Corbin with American notes. The preface to the fifth edition sets out the purpose of the work and contains a critique of Leake as well as of Pollock.

[183] See squib, supra p. 19.

[184] For the theories of legal evolution beginning with the natural law tradition and ending with the aftermath of “Ancient Law,” see P. Stein, Legal Evolution, The Story of an Idea (1980).

[185] See p. 47 supra.

[186] Supra note 182 and p. 115 infra.

[187] Preface to the first edition of Cases on Contracts, reprinted in Cases all Contracts at viii (2d ed, 1879).

[188] Corbin served as a special adviser and Reporter on Remedies.

[189] This citation is taken from J. S. Mill's famous essay on Bentham, reproduced in The Dissertations and Discussions at 378 (1868). Essays on Politics and Culture by John Stuart Mill, 85, 103 (G. Himmelfarb ed. 1962).

[190] The expression is from the title of William Prosser’s article on products liability, The Assault upon the Citadel (Strict Liability and the Consumer), 69 Yale L.J. 1099 (1960).

[191] Law In Science and Science In Law, in Collected Legal Papers 210, 225 (1920).

[192] O. W. Holmes, The common Law I (1881)

[193] Ibid. To quote a modern author, it is "neither logical demonstration, nor inductive generalization, nor the comprehension of certain evident truths.” J.  Esser, Grundsatz and Norm 183, 184 (1956). See also J. Stone, Legal Systems and Lawyer’s Reasoning, 332 (1964).

[194] Corbin Section 331.

[195] Ibid.