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BEING

A TREATISE ON THE

GENERAL PRINCIPLES CONCERNING THE VALIDITY

OF AGREEMENTS IN THE LAW OF ENGLAND.

Fourth Edition.

BY

FREDERICK POLLOCK,

OF LINCOLN'S ixx, ESQ., RARRISTER-AT-LAW;
CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD; PROFESSOR OF COMMON LAW
IN THE INXS OF COURT; LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE; AND

HONORARY DOCTOR OF LAWS IX THE UNIVERSITY OF EDINBURGH.

“This notion of Contract is part of men's common stock even outside the field of legal
science, and to men of law so familiar and necessary in its various applications that we
might expect a settled and just apprehension of it to prevail everywhere. Nevertheless
we are yet far short of this.”—SAVIGNY, System des heutigen römischen Rechts, X 140.

LONDON:
STEVENS AND SONS, 119, CHANCERY LANE,
Law Publishers and Booksellers.

LONDON:

PRINTED BY C. F. ROWORTH, 5-11, GREAT NEW STREET, FETTER LANE, E.C. TO THE RIGHT HONOURABLE

LORD JUSTICE LINDLEY.

MY DEAR LORD JUSTICE,

Ten years ago I dedicated to you, as my master in the law, the first edition of this book, as the first fruits of your teaching. The time has come when I may without presumption take on myself to explain the meaning of those words more fully than the compass of a formal dedication admits.

In your chambers, and from your example, I learnt that root of the matter which too many things in common practice conspire to obscure, that the law is neither a trade nor a solemn jugglery, but a science. By your help and encouragement I was led to acquaint myself with that other great historical system which to this day divides, broadly speaking, the civilized world with the Common Law; to regard it not as a mere collection of rules and maxims accidentally like or unlike our own, but as the living growth of similar ideas under different conditions ; and to perceive that the Roman law deserves the study and reverence of English lawyers, not merely as scholars and citizens of the world, but inasmuch as both in its history and its scientific development it is capable of throwing a light beyond price on the dark places of our own doctrine. I owe it to you and to my friend Professor Bryce that, daring to be deaf to the counsels of shallow wisdom that miscalls itself practical, I turned from the formless confusion of text-books and the dry bones of students' manuals to the immortal work of Savigny; assuredly the greatest production of this age in the field of jurisprudence, nor one easily to be matched in

any

other branch of learning, if literary form as well as scientific genius be taken into account. Like one in a Platonic fable, I passed out of a cave of shadows into clear daylight. The vast mass of detail was dominated by ordered ideas and luminous exposition. Equally removed from the futile struggling of a mere handicraftsman with the multitude of particulars, and from the pedantry which gains a show of logical symmetry by casting out unwelcome facts, the master proved, not by verbal definition, but by achievements in act, that the science of law is a true and living one.

Others have come and may come by other means to the same sort of enlightenment. Let every one praise, as in private duty bound, the spiritual fathers to whom he owes it. Blackstone, I doubt not, opened to his first hearers little less than a revelation. But Blackstone, if he were with us at this day, would be the first to proclaim the necessity of doing his work over again, and doing it thoroughly from the beginning. His destined successor is yet to seek; and meanwhile an English teacher of law can have no higher ambition than to prepare the way, however partially, for that successor. Title by title, and chapter by chapter, the treasures of the Common Law must be consolidated into rational order before they can be newly grasped and recast as a whole.

Many good and true workers are bearing their part in this task in divers forms. Some part has fallen to my share; I have performed and am performing it as best I may. To be a fellow-worker with such men as Mr. Justice Stephen and Mr. Justice 0. W. Holmes, and in ways which they and you think not unworthy of approval, is at once a privilege and a responsibility.

No man can be free from errors in design or faults in execution. But every man can strive to keep his eyes open for the best light he knows, his hand trained for the best mastery it is capable of; to test and verify his handiwork at every step, and, where he has failed to attain certainty, frankly to confess his doubt or ignorance. These things I have striven to do; and if any word of mine, spoken or written, is of the spirit which helps those who come after to do them better, it will be of little account whether the letter of it stands or falls. With such skill as I have it will still be my endeavour to spread abroad the gladsome light of jurisprudence into which you led me (to speak with Coke, an author even now read by some on both sides of the Atlantic who do not believe that the law of England and its history exist for the sake of either examinations or practice cases); and I think I may guess without rashness that there is no kind of return you would more willingly accept.

I remain,

Your friend and pupil,

FREDERICK POLLOCK.

LINCOLN'S INN,

Easter, 1885.

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