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civil law, but men whose views had been extended, and their powers improved in a larger sphere of action, and who, in different situations, had been conversant with the various details of life. Jurisprudence is a science (if it can be called a science) which has not advanced in an equal progress with the other great departments of human knowledge. It is, however, becoming daily more and more the subject of attention ; and we hail this interposition of Mr. Verplanck, not only as a fayourable omen, but as a step taken in the course of improvement.
Mr. Verplanck has prudently confined his essay to the subjects stated in his title. The great object of the work is, to examine the propriety and justice of the maxim which the common law applies to sales, and most other contracts, “ caveat emptor"-let the buyer beware.
“The seller of personal property is, by his act of sale, considered in law as warranting that he has a right to sell, and that the title is good ; but beyond this, in all ordinary transactions of buying and selling, the maxim of Caveat Emptor is fully established. No matter how defective may be the article sold, for which the full market price of a good commodity has been paid ; no matter how much its value may be inferior to its cost ; though the wine bought as good, may be sour; though the horse paid for at the highest rate may be foundered ; if no fraud or intentional falsehood have been used, the buyer has no remedy. If he cannor rely upon his own judgment in the matter, or upon the good faith of the vendor, it is his business to ask for an express warranty. If he omits this, he takes the risk
himself “ It is a corollary from this position, that even erroneous representations or descriptions of the quality of the commodity, if made ignorantly,or to speak more accurately as to the practical operation of the rule, if the buyer cannot prove that they were wilfully false,-impose no obligation upon the seller that the goods correspond with this description. Nay, further, it has repeatedly been adjudged that even a description of the nature and kind of the thing sold has no effect. So that when certain wood which was bought at a high price under the description of a valuable dye-wood much prized in commerce and the arts, turned out to be but logs of a common and wholly different species, fit only for fuel-and when certain cotton goods, described as being of a well known fabric of one part of India, were found after the sale to be of a wholly different kind, size, and quality, and manufactured in another quarter of the east-both these were adjudged to be valid and well executed sales.”_pp. 29. 31.
The author proceeds to point out at considerable length, and with much clearness, other principles of the common law which are inconsistent with this favourite maxim of caveat emptor. We select the following, not as giving the whole of his argument and illustration on this subject, but as a sample of itThe.contracts of a mechanic or artisan are construed on different principles.
“ He who undertakes, for a certain sum of money, to build a ship, or a house, or to make a coat, or to bind a book, is held bound to do his work ia a reasonable and workmanlike manner, so that it may have no gross unfitness for the purposes to which it is designed. If the house falls down of itself, or the coat is not wearable, the mechanic loses his claim for the coinpensation agreed upon ; because, say the judges, if there has been no beneficial service, there should be no pay. There has been the greatest uncertainty, it is true, and much positive contradiction as to the legal mode of enforcing this rule. It is doubtful whether the proving that the work was done in a slight and insufficient manner is a good defence against the demands of the workman, or whether the employer can only resort to a separate or cross action for damages. But on the main point it is settled, that where a person is employed to do or perform some particular work or business for hire, the law implies that the person so engaged, not only undertakes to do the work, &c. but also to use all due diligence, attention and skill, in the execution thereof; if he does not, he is liable to the buyer for the amount of damages he may sustain. Thus, though there is no implied warranty of good workmanship imposed on the seller of the finished article, there is upon the mechanic who makes it.
“ If I order a pair of boots, at the usual price of well-made, substantial boots, and my shoemaker makes me a pair evidently inferior in workmanship and durability, I can compel him to make a proper deduction in his charge, or, according to circumstances, refuse to take them. If I buy the same pair ready made out of the shop of the same man, so he used no false assertion, I must be content with my bad bargain.
“ This is on a small scale. We may take another example from the noblest of all manufactures, that of ships.
“ A merchant makes an agreement for the building of a ship. The builder, from negligence, (we put all dislionesty out of the question,) executes his contract very badly, with respect to the mechanical part. Here the employer was not wholly obliged to rely upon the builder, for it was possible for him to have examined the work himself as it advanced, and objected to obvious defects ; still the builder is liable for the consequences of his ignorance or carelessness. Not so if he builds and sells on his own account. The law then calls him no longer a workman, but a vendor, and under that name, if he sells the same ship at the same price, in good faith, (which he may well do, as we are supposing a case of defects frorn negligence, or reliance on some under agent,) he is no longer answerable for the faults which he does not positively know or warrant against.
“ Let us now see how far the analogy of these principles and decisions has been preserved under different external relations, in other titles of the law,
“ Our law of insurance, every one knows, is of modern growth. Although the practice of marine insurance had been long in use among merchants, and many of its rules had been fixed by the wise ordinances of the sovereigns, or, the learned labours of the jurists of the continent of Europe ; it was not until the time of Lord Mansfield that it formed any part of the regular studies of the English lawyer. The liberal learning, and powerful mind of Mansfield, in the course of his long and brilliant career, laid the broad and solid foundations of a system, to which succeeding judges, in Europe and America, have done little more than to fill up and enlarge. Almost every case which came before him presented a
new question, with respect to which, the books of the common law could furnish no binding precedent. Thus, in his decisions he was left free to follow the authorities, or to be guided by the reasonings of the foreign authors; or else to make the judgments of the law correspond with the actual practice of intelligent merchants, and with those universal usages, founded party in convenience, and partly in natural equity, which might be considered as the common commercial and maritime law of the civilized 'world.
“ Hence it is, that, though there may be no positive contradiction, there is but little analogy between the law of insurance and the more anciently settled parts of the English law of contracts.
“In every contract of insurance, the law prescribes to each party, pot simply striet integrity, but unreserved frankness and candour.' The insured being the party from whom, in most cases, the underwriter obtains the special facts upon which the calculation of the risk is settled, every step of his conduct is watched by the courts with a jealous eye. Every fact within his knowledge, regarding which ignorance or mistake might possibly induce the underwriter to compute his risk upon an incorrect basis, or to enter into the contract on less favourable terms than he would otherwise have insisted upon, is considered in law as a material fact, and misrepresentation or suppression of it avoids the policy. So rigid is this doctrine enforced, that we find the reports full of such dicta as these. “ This policy was affected by misrepresentation arising from the plain" tiff's agent. Now, whether this happened by fraud or negligence it “makes no difference, for in either case the policy is void.” This is said by Lord Mansfield, in a formal opinion, in which his associates on the bench concur.”—pp. 34-38.
The circumstance that the law of insurance, being of recent introduction into English jurisprudence, is governed by principles of a more enlightened policy, and a sounder morality, than pervade the older branches of the law, goes farto show that the common law has not that happy facility in adapting itself to the new relations, and enlarged knowledge of the community, for which it is so much extolled by its admirers. On the contrary, the maxim of the law is “ stare decisis,” to change nothing which has once been settled. When, as in the case of insurance, an entire new subject is introduced, the judges, if they happen to be men of general knowledge, and large minds, feeling themselves free from the fetters of direct authority, apply to this new subject the rules which wisdom and justice dictate, but they dare go no further. They dare not apply the same reasoning and the same principles to other cases, which have been the subjects of previous decisions. On the contrary, so strong is the force of system, and such the veneration for ancient authority, that there is a constant tendency to repress the inroads which common sense, and the usages of society founded upon it, are constantly struggling to introduce. An instance of this may be gathered from the present author.
6 The uniformity of the law of sales was a little disturbed; about the middle of the last century, by an opinion which, having been silently introduced by the customs of trade, was supported by respectable authority, and sometimes entertained by the courts. It was held that a fair price, or a price at the usual market value of such a commodity, implied a warranty of its soundness; because, it was said, that in the contract of sale, no man could be expected to part with his money without an adequate compensation. But soon after, a series of very marked decisions, during the most enlightened and liberal period of the English bench, restored the rule of the common law as it stood in the days of Fitzherbert and Croke. This has not only been deliberately recognised as law by the Supreme Court of New-York, but carried by them to its greatest extent, in a long and uniform train of decisions. It has besides been at different times confirmed and acknowledged by almost all the courts of the United States, which allow the authority of the common law. The only exception which I know, is that of the very able and learned bench of South, Carolina, who have adopted the rule, that a sound price warrants a sound commodity.”-pp. 28, 29.
We cannot omit this opportunity to express our dissent from a doctrine which we have often seen vaguely stated, but which has lately been formally brought forward, and elaborately explained, and supported in a work for which we profess the highest respect, and whose previous opinions upon this subject, we had understood to be more liberal and accurate, than those which appear to be entertained by the writer of the article in question. We allude to the essay, entitled English Common Law Reports, in the last October number of the North American Review. We are told that code of laws is like a coat “ of mail, which, however perfectly made, can admit of but few 6 movements, and can fit but one person, and that but for a 6 short period; while the common law is an elastic garment, 66 which adapts itself to every size, and every variety of mo“tion;" and this position or figure, is illustrated by the decisions respecting the examination of witnesses : and the writer correctly states, that the mode of attestation has, by the courts of common law, been varied, so as to adapt it to the religious belief of the witness--a Catholic swearing in one mode, a Jew in another, and a Mabometan in a third, each in the manner which is thought most agreeable to his own faith and usages, and therefore, to impress the greatest obligation on his conscience. And the writer concludes the illustration, by gravely stating," that a code or a statute prescribing the forms of oaths in judicial proceedings, would have been inflexible.” If the code were formed by those who excessively venerated the common law, and were little acquainted with any other system, we cannot answer what it might be ; but if it were formed by such a man as Edward Livingston, or by any persons who in the
present age would probably be deputed to perform such a task, it would not impose an unvarying form in which all oaths or attestations should be taken ; but it would direct the judge to take into consideration the country and religion of the witness, and to compel him to deliver his evidence under such oath or other assurance of veracity as should be deemed most efficacious to elicit the truth. In the particular case supposed, therefore, neither the code nor the common law would have any advantage over the other; each would pursue the same
But to consider the subject in a larger point of view, the truth is, that the common law is not, as this and other eulogists have represented it, accommodating, flexible, or (to use an expression adopted by its admirers) malleable, excepting only in the cases and to the extent where it is either silent, vague, uncertain, or contradictory, and therefore, accurately speaking, no law at all. To this extent, the common law is accommodating, flexible, and “malleable," but no further. On the contrary, it is a remarkable feature in this system, that the precedents set, and the maxims established in the days of darkness and ignorance, are narrowly and pertinaciously adhered to in after times, when the enlarged interests and increased intelligence of society require them to be modified and extended.
Before Mansfield's time, the law was silent in relation to insurance, then scarcely known. Lord Mansfield, therefore, and not the common law, adopted a just and liberal system on that subject; but has not Mr. Verplanck very fully shown, that though the principle requiring fair disclosure, and good faith, in regard to insurance, is just as applicable to any other contract, yet that it has not been so applied ? and in relation to all other subjects, the decisions are in direct accordance with former precedents, and in as direct contradiction to the principles, policy, and spirit of the law regulating insurance; and so. true is this, that, as Mr. Verplanck has shown in the passage above cited, when public opinion had silently introduced a decided improvement in the law of sales, it was repressed and abolished, the moment it came under the direct judicial cognizance of the courts. This undeserved eulogy has been so frequently applied to the common law, in a manner so specious, and from such high authority, that we intend, on some future occasion, (should leisure serve,) to attempt a formal refutation of it. For the present, we must content ourselves with a few brief illustrations, taken without selection, from the mass which must constantly occur to every one familiar with English law books. In ancient times, when the art of writing was rare,