A HISTORY OF ENGLISH LAW
A HISTORY OF ENGLISH LAW
IN NINE VOLUMES
For List of Volumes and Scheme of the History, see p. vii
A HISTORY
OF ENGLISH LAW
|i< Wl1' Sf HOLDSWORTH, K.C., D.G.L.
VINERIAN PROFESSOR OF ENGLISH LAW IS THE UNIVERSITY OF OXFORD; FELLOW OF ALL SOULS
COLLEGE, OXFORD; LATE FELLOW OF ST. JOHN*S COLLEGE, OXFORD; FOREIGN' ASSOCIATE
OF THE ROYAL BELGIAN ACADEEY ; FELLOW OF THE BRITISH ACADEBY
VOLUME VIII
To say truth, although it is not necessary for counsel to know what
the history of a point is, but to know how it now stands resolved, yet it is a
•wonderful accomplishment, and, without it, a lawyer cannot be accounted
learned in the law. Roger North
METHUEN & GO. LTD.
36 ESSEX STREET W.C.
LONDON
K
v. a
/}>.*•/ Published in 1925
PRINTED IN GREAT BRITAIN
TO
The Right Honourable FREDERICK EDWIN
EARL OF BIRKENHEAD
SOMETIME LORD HIGH CHANCELLOR OF GREAT BRITAIN*
THIS WORK
BY HIS LORDSHIP S PERMISSION
RESPECTFULLY DEDICATED
PLAN OF THE HISTORY
(Vol. I.) BOOK I. — The Judicial System : Introduction. Chap. I. Origins.
Chap. II. The Decline of the Old Local Courts and the Rise of the New County
Courts. Chap. III. The System of Common Law Jurisdiction. Chap. IV. The House
of Lords. Chap. V. The Chancery. Chap. VI. The Council. Chap. VII. Courts
of a Special Jurisdiction. Chap. VIII. The Reconstruction of the Judicial System.
(Vol. II.) BOOK II. (^49-1066) — Anglo-Saxon Antiquities: Introduction.
Part I. Sources and General Development. Part II. The Rules of Law : § 1 The
Ranks of the People ; § 2 Criminal Law ; § 3 The Law of Property ; § 4 Family Law ;
§5 Self-help ; § 6 Procedure.
BOOK III. (1066-1485) — The Medieval Common Law: Introduction. Part
I. Sources and General Development : Chap. I. The Intellectual, Political, and
Legal Ideas of the Middle Ages. Chap. II. The Norman Conquest to Magna Carta.
Chap. III. The Reign of Henry III. Chap. IV. The Reign of Edward I. Chap. V.
The Fourteenth and Fifteenth Centuries. (Vol. III.) Part II. The Rules of Law:
Chap. I. The Land Law : § 1 The Real Actions ; § 2 Free Tenure, Unfree Tenure,
and Chattels Real ; § 3 The Free Tenures and Their Incidents ; § 4 The Power of
Alienation; § 5 Seisin: § 6 Estates; § 7 Incorporeal Things; § 8 Inheritance; § 9
Curtsey and Dower ; § 10 Unfree Tenure ; § 11 The Term of Years ; § 12 The Modes
and Forms of Conveyance; § 13 Special Customs. Chap. II. Crime and Tort:
§ 1 Self-help ; § 2 Treason ; § 3 Benefit of Clergy, and Sanctuary and Abjuration ;
§ 4 Principal and Accessory ; § 5 Offences Against the Person ; § 6 Possession and
Ownership of Chattels ; § 7 Wrongs to Property ; § 8 The Principles of Liability ;
§ 9 Lines of Future Development. Chap. III. Contract and Quasi-Contract. Chap.
IV. Status: § 1 The King; §2 The Incorporate Person; §3 The Villeins; § 4 The
Infant; § 5 The Married Woman. Chap. V. Succession to Chattels: § 1 The Last
Will ; § 2 Restrictions on Testation and Intestate Succession ; § 3 The Representa-
tion of the Deceased. Chap. VI. Procedure and Pleading : § 1 The Criminal Law;
§ 2 The Civil Law.
(Vol. IV.) BOOK IV. (1485-1700) — The Common Law and Its Rivals: Intro-
duction. Part I. Sources and General Development: Chap. I. The Sixteenth
Century at Home and Abroad. Chap. II. English Law in the Sixteenth and Early
Seventeenth Centuries : The Enacted Law. (Vol. V.) Chap. III. English Law in
the Sixteenth and Early Seventeenth Centuries : Developments Outside the Sphere
of the Common Law — International, Maritime, and Commercial Law. Chap. IV.
English Law in the Sixteenth and Early Seventeenth Centuries : Developments Out-
side the Sphere of the Common Law — Law Administered by the Star Chamber and
the Chancery. Chap. V. English Law in the Sixteenth and Early Seventeenth
Centuries: The Development of the Common Law. (Vol. VI.) Chap. VI. The
Public Law of the Seventeenth Century. Chap. VII. The Latter Half of the Seven-
teenth Century : The Enacted Law. Chap. VIII. The Latter Half of the Seven-
teenth Century : The Professional Development of the Law.
(Vol. VII.) Partll. The Rules of Law. Chap. I. The Land Law :§ 1 The Action
of Ejectment; § 2 Seisin Possession and Ownership; § 3 Contingent Remainders;
§ 4 Executory Interests ; § 5 Powers of Appointment; § 6 The Rules Against Per-
petuities ; § 7 Landlord and Tenant ; § 8 Copyholds ; § 9 Incorporeal Things ; § 10
Conveyancing; § n The Interpretation of Conveyances. Chap. II. Chattels
Personal : § 1 The Action of Trover and Conversion ; § 2 The Ownership and
Possession of Chattels; §3 Choses in Action. (Vol. VIII.) Chap. III. Contract
and Quasi-Contract: § 1 The Doctrine of Consideration; § 2 The Invalidity, the
Enforcement, and the Discharge of Contract ; § 3 Quasi-Contract. Chap. IV. The
Law Merchant. I. — Commercial Law : § 1 Usury and the Usury Laws ; § 2
Negotiable Instruments ; § 3 Banking ; § 4 Commercial Societies ; § 5 Agency ; § 6
Bankruptcy. II. — Maritime Law. III. — Insurance. Chap. V. Crime and Tort.
Lines of Development. § 1 Constructive Treason and Other Cognate Offences ; § 2
Defamation; §3 Conspiracy, Malicious Prosecution, and Maintenance; §4 Legal
Doctrines Resulting from Laws Against Religious Nonconformity; § 5 Lines of
Future Development ; § 6 The Principles of Liability. (Vol. IX.) Chap. VI.
Status : § 1 The King and Remedies Against the Crown ; § 2 The Incorporate
Person ; § 3 British Subjects! and Aliens. Chap. VII. Evidence, Procedure, and
Pleading : § 1 Evidence ; § 2 Common Law Procedure ; § 3 Equity Procedure.
CONTENTS
PAGB
Plan of the History yii
List of Cases xxiji
List of Statutes nodi
BOOK IV {continued)
THE COMMON LAW AND ITS RIVALS
PART II (continued)
THE RULES OF LAW
CHAPTER III
Contract and Quasi- Contract
Agreement and Contract i
The problem of distinguishing between pact and contract .... 1-2
Mainly solved by the doctrine of consideration 2
Other topics dealt with in this chapter 2
§ 1. The Doctrine of Consideration 2-48
The term consideration 3-8
The need for a test to distinguish the enforceable from the un-
enforceable agreement 3
First felt in connection with the action of debt — quid pro quo . 3-4
" Consideration " used to express the pacts which would make an
agreement enforceable by assumpsit 4
Consideration in the Chancery 4-5
Not a technical word in the first half of the sixteenth century . 5-6
In the latter half of the sixteenth century acquires the technical
meaning of the circumstances necessary to make an agreement
enforceable by assumpsit 6-7
Other influences affecting the doctrine ...... 7-8
Consideration in the sixteenth and seventeenth centuries . . . 8-25
Different kinds of considerations 9- n
Mutual promises g
A precedent debt . 9-10
Detriment to the promisee ....... 10-11
Need not move to the promisor but must move to the promisee . n-13
A result of the form of the action of assumpsit ... n
Why the principle was not firmly grasped at this period . 12-13
Maybe executory or executed but cannot be past . . . 13-17
Executed and past consideration 14-15
Services done on request 15
Confusion in statement of the rule — admission of exceptions to
the rule that consideration cannot be past . . . 16-17
Need not be adequate but must be certain 17-18
ix
CONTENTS
wholly
to per
Must be an act of some value in the eye of the law
Forbearances to prosecute a groundless claim
Promises to release for promises to pay an existing debt
or in part
Promises in consideration of performance or promises
form a contract with a third person
Summary of development during these centuries .
Consideration in the eighteenth and early nineteenth centuries
Character of this development
Its technical basis
New ideas .........
Moral obligation
Influence of mercantile law
Continued influence of the idea of moral obligation in early
teenth century ......
Results of these ideas
The settlement of the modern doctrine
Why the eighteenth-century theories were rejected
Rann v. Hughes .......
Bosanquet and Puller's note . . .
Its influence .......
The new pleading rules of 1834 ....
The results of Eastwood v. Kenyon
Motive and consideration ....
The definition of past and executed consideration
Must move from the promisee
Payment or promises to pay a less sum than is due
Promises to perform an existing contractual duty .
" Cause " and consideration
The continental development of the " Cause "
Its advantages and disadvantages ....
Affinities to Lord Mansfield's views
Results of the rejection of those views .
Why the doctrine of consideration is an anachronism
Suggestions for the law of the future .
§ 2. The Invalidity, Enforcement, and Discharge of Contracts
In this period we see only the origins of these rules
Invalidity
Causes of invalidity
Those arising from the nature of an agreement
Those arising from incapacity of parties
Illegality of object
Severance of legal from illegal stipulations
Where a stipulation is not obviously illegal
Statute and common law
Public policy
Contracts in restraint of trade .
Impossibility .......
Promises absolutely or legally impossible
Unconditional promises ....
Later modifications of the law
Alteration of a contract under seal .
Statutory provisions .....
The effects of these causes of invalidity
Void, voidable and unenforceable .
Why these differences have been obscured
The effects of fraud and misrepresentation .
How they were regarded at this period .
Give rise to action for deceit or breach of warranty, but do
not invalidate a contract
Chandelor v. Lopus .....
Development of the idea of breach of warranty
CONTENTS xi
PAGE
Actions on the contract for breach of warranty ... 70
How the modern law will develop 7°
Enforcement 7°-76
The nature of the problem 70-71
Rules originating in actions of debt and covenant . . . 71-72
Applied to assumpsit • 72_73
Rules as to when promises were dependent and when independent 73
Hardship of these rules 73"74
Growth of idea that conditions might be concurrent . . . 74-75
Beginnings of the modern law ...... 75
Rules originating in the distinction between special assumpsit and
assumpsit on a quantum meruit 75-7^
Cutter v. Powell 76
Discharge 77*87
Breach 77-78
Conditions, warranties, and warranties ex post facto ... 77
Treatment of fraud and misrepresentation 77-78
Refusal to perform and impossibility created by a party to the
contract 78
Performance or tender thereof 78-80
Performance of the act promised 78
Payment 79
Where the payment is to be by instalments ... 79
Tender of goods or money . 79-8o
Agreement 80-87
The Roman rule and English law 80
The operation of a contract under seal 80-81
The operation of a simple contract 81-85
Will not discharge a contract under seal . . . 81-82
When the simple contract is executory .... 82
When one of the parties has done his part — accord and
satisfaction 82-84
Uncertainty of the law 84-85
The novation . • 85-87
Not possible in the Middle Ages 85-86
Introduction and development 86-87
Summary — The influences which were shaping the growth of the
law 87-88
§ 3. QUASI-CONTRACT 8S-9S
Mediaeval origins in debt and account 88
The influence of indebitatus assumpsit 88-89
Other influences which have helped to make this branch of law . . 89
The extension of indebitatus assumpsit to cover the field of debt . . 8g-g2
Used to enforce duties not resting on agreement .... 90
Holt's opposition 90-91
His failure to stop this development 91-92
The extension of indebitatus assumpsit to remedy cases of unjust
enrichment .......... 92-96
Could not be used for this purpose in the seventeenth century . 92
Tendency of eighteenth-century developments .... 92
Failure of consideration 93-94
Payment to a person to whom the money is not due ... 94
Recovery from persons who had wrongfully taken the money . 94-96
The beginnings of the modern law 96-98
Want of principle in the law ....... 96
Lord Mansfield's generalization 97
Did not cover all cases 97-98
Effect of the abolition of the forms of action on this branch of
the law ........... 98
xii CONTENTS
CHAPTER IV
The Law Merchant
page
I. Commercial Law 99-245
§ 1. Usury and the Usury Laws 100-113
Need for regulating the activities of money lenders .... 100-101
The rationale of the mediaeval prohibition of usury .... 101
Mediaeval English law was based on these ideas 101-102
Legislation against usury 102-103
The distinction between legal and illegal payments for the use of
money 103
Payments to compensate for damnum emergens or lucrum cessans . 103
Applications of this principle 104
The contractus trinus 104-105
Rent charges and leases at nominal rents 105-106
State debts and montes pietatis 106
Why the general prohibition was still maintained .... 106-107
Its weakening created a difficult problem 108
Legislation of the early sixteenth century 108-109
The statutes of 1571 and 1623 109-110
Wilson's opposition to this legislation no
Later discussions . iio-in
Emergence of the economic point of view in
Modified by the council and equity in
Later legislation 112
The change in the organization of industry which caused this
legislation 112
Its effects on the growth of modern commercial law .... 112-113
§ 2. Negotiable Instruments 113-176
Mediaeval origins and continental development 1 13-146
Features of negotiability in modern law 113-114
The early documents and the bill of exchange .... 114
The early documents 115- 126
Why negotiability was impossible in early law . . . 115
Documents authorizing payment to the creditor's nominee
who produces the document 115-116
The variety of these documents 116
Known in France and England 116
They obviate the difficulty of representation for purposes of
litigation 116-117
They made assignment possible and gave the assignee a better
position than the assignor 117-118
They obviated the difficulty that a right does not admit of
traditio 118-119
Legal theory was at first hostile to the development of these
documents 119
Treatment of clauses in favour of a creditor's nominee . . 119-120
Their disappearance 121
Treatment of clauses in favour of the producer or the bearer
of these documents 121-123
Why the bearer lost his independent right of action . 123-124
Hence these documents loose their negotiable character . 124-125
Resulting inconveniences ....... 125
French legislation 125-126
The origin and development of the bill of exchange . . . 126-145
The mediaeval contract of cambium 126-131
Its nature 126
Cambium minutum 126-127
Cambium siccum and fictivum 127-128
The contract to transport money 128
CONTENTS xiii
PAGE
The part played by the exchangers and bankers . . 128-130
The origins of bilk of exchange and banking . . . 130
This form of the contract was used by the Italian mer-
chants in England 130-131
The machinery used to give effect to the contract of cambium 131-140
The form of the earliest bills of exchange . . . 131
Known in early fourteenth century 132
Their origin in instrumenta ex causa cambii and letters of
payment 132
Not derived from Roman law 132-133
Theory of an Arabic origin 133-134
Theories of Freundt and Val£ry 134-136
The formal instrumentum drops out .... 136-137
The letter of payment is the bill of exchange . . . 137
The parties to the bill 137
Relations of payee of money to drawer who has received it 137
Relations of drawer and drawee 138
Relations of acceptor and payee 138-139
Relations of payee and drawer 139-140
The bill of exchange becomes a contract sui generis, but
not as yet negotiable 140
The development of the negotiable character of the bill of ex-
change 140-145
The clause to the payee or order 141
Indorsement 141
Process by which it became indefinitely assignable by
repeated indorsements 141-143
Relations of the various indorsees 143
Presumption that the acceptor has received value . . 143
Enlargement of this presumption 143-144
Effect on the older documents 144
Bills of exchange the type and model of negotiable
instruments 144-145
Negotiability and legal theory 145-146
Introduction into England and development in the common law . 146-177
Lines of development 146-147
The older instruments 147-151
English lawyers treat them in the same way as the continental
lawyers 147
Known in the court of Admiralty 147-148
Malynes's account of them 148-149
Methods by which they were made assignable . . . 149-150
Advantages of this 150
Legality of these methods not recognised by the common law 150-151
The bill of exchange 151-170
Reception of foreign doctrine . . . . . . 151
The bill of exchange in mercantile practice .... 152-159
Early specimens of these bills 152-153
The parties thereto the same as abroad .... 153
How made assignable 153-154
Comparison with method used in case of the older instru-
ments 154
Bills made payable " to the bringer thereof" . . . 154-155
Marius's book 155
Shows that these bills were becoming negotiable 155-156
Comparison with English and continental law . 156-157
Bills to order and bearer 157
The title of the bona fide holder 157
The presumption of consideration 157-158
Inland and outland bills 158
The parties to a bill rs8
Confused by English lawyers with the older instruments 159
XIV
CONTENTS
The bill of exchange in English law
Assumpsit used to enforce the rights of the parties thereto
Difficulties in statement
How obviated
The parties to the bill .
Relations of the payer of money to the drawer who has re
ceived it .
Relations of drawer and drawee
Relations of acceptor and payee
Relations of payee and drawer
Assignability of the bill of exchange
Bearer instruments
The title of the bona fide holder
The assignee of a thief .
The presumption of value
The application of the doctrine of consideration
Theory that bills are in the nature of contracts under seal
Peculiarities of the English development
Promissory notes
Early cases recognize their negotiability
Notes issued by the goldsmiths
Holt's decisions
The statute of Anne
Explanation of Holt's decisions
The effects of the statute of Anne
§ 3. Banking
The money changers were the earliest bankers
Due to same economic causes as gave rise to the bill of
Fully developed in Italy in the fourteenth century
Scope of the business of the bankers .
They facilitate the adjustment of accounts .
They finance undertakings .....
; The growth of the bank's political importance
Need for state control
State banks at Venice and elsewhere .
States become debtors to banks — Genoa and Venice
Decline of private banking
Description of Marquardus
Description of Malynes
A state bank advocated in England
Foundation of private banking — the goldsmiths .
Why no public bank was founded till the Revolution
Foundation of the bank of England
Its services to the state and to trade
Banking in English law of this period .
Cheques and bank notes ....
How far negotiable
Their operation in discharging a debt .
The banker's obligation on his notes .
§ 4. Commercial Societies .....
Growth of the commercial societies known to modern
Early forms of commercial association
The gild
Influence of the gilds on the law of partnership
The commenda ......
Why not known in England till introduced
. 1907
The societas ......
The firm a separate person .
Why not recognized as such in English law
Influence of the idea on English law
exchange
by
the Act of
CONTENTS xv
PAGE
Application of the corporate idea to commercial societies . . . 199-205
Why corporate form was desirable 199
Some early charters 199-200
Purposes for which incorporation was at first sought . . . 200-202
Its commercial advantages 202-203
The personal liability of the corporators 203-204
Leviations and subrogation 204
How this liability could be limited ..... 204-205
Combination of the advantages of the societas and the commenda 205
The companies and partnerships of the seventeenth century . . 206-222
The rise of the joint stock company 206-213
Joint stock and regulated companies 206-207
Italian origin of the joint stock principle .... 207-208
State loans and joint stock companies 208
Origins of different companies in England .... 208-209
Effect of changed economic conditions on some of these
companies 209-210
The South Sea and Hudson Bay companies .... 210
The East India Company 210-21 1
Ideas underlying the incorporation of the bank of England . 211
Capital lent to the state used as a fund of credit . . . 211-212
Application of this idea to the South Sea Company . . 212-213
Commercial and legal consequences 213-219
Economic and political consequences 213-214
Growth of a market for stocks and shares .... 214
The shady side of joint stock enterprise .... 214-215
Few ascertained rules of law 215
Line between corporate and unincorporate societies not .
clearly drawn 215
Their powers not limited by their charters .... 215-216
This limitation established 216
Accounts kept irregularly 216-217
Problems of the dissolved or amalgamated company . . 217
Law of partnership still rudimentary 217-218
Chances of fraud increased by the vagueness of the law . 218
The Government and the South Sea Bubble . . . 218-219
The Bubble Act and its effects 219-222
The main defects of the Act 219-220
Its provisions ......... 220
Its good and bad results ....... 220-221
Problems arising on the repeal of the Act .... 221
The modern history of these topics begins with this Act . 222
§ 5. Agency 222-229
Agency not known in primitive bodies of law .... 222
The growth of a law of agency 222-223
The mediaeval law 223-224
Commercial agents 224
Brokers 224-225
Factors 225-226
Factors and servants ........ 226
Mercantile practice little known to the lawyers .... 226-227
Law of master and servant not distinguished from the law of
principle and agent 227
Slow development of law of commercial agency .... 227-228
Development in the Chancery and at common law . . . 228-229
§ 6. Bankruptcy 229-245
The personal character of the debtor's obligation in early law . . 229
Development of a law of bankruptcy in Italy 229-230
History of a creditor's remedies in England 230-231
Why constraint of the debtor's person became a usual remedy . . 231
Results of this 231-232
VOL. VIIL— b
XVI
CONTENTS
Its inadequency to meet commercial needs
The law modified in favour of the unfortunate debtor
The work of the Council
The statutes ....
Their ineffectiveness
Measures taken against dishonest debtors
The work of the Council
The bankruptcy legislation .
Henry VIII. 's statute .
The statutes of 1571, 1604, and 1623
Persons who can become bankrupt
Acts of bankruptcy
Jurisdiction in bankruptcy
Powers of the commissioners .
Duties of the commissioners .
Assets available for distribution
Effect on the bankrupt's liability .
Policy of these statutes .
Control of the commissioners .
The common law decisions .
The work of the court of Chancery
Partnership cases ....
The vendor's lien ....
Stoppage in transitu
The defects of the law ....
Causes of these defects
State of the law in the early nineteenth century
Maritime Law
Ownership and possession of ships
Methods of acquisition .
Claims against a ship .
The rights of co-owners inter se .
The master and crew ....
The ordinary complement of a ship
The powers of the master
The relations of master and owner
The liability of the master for the torts of his employes
The liability of the owner for the torts of the master or crew
The influence of these rules on the common law
The relations of master and crew .
The contract of carriage
The different forms of the contract
The charter party
The bill of lading
Liabilities of the masters or owners
The difference between the common law and the
Liability to pay freight and wages
Duties of the charterer
Characteristics of some of the cases of this period
Some incidents of the contract of carriage .
Bottomry and respondentia
Average
Collision
Salvage
The maritime lien .....
III. Insurance
The place of the contract in the law of this period
The origin of the contract of marine insurance
Marine insurance is the earliest variety
Anticipations in Greek and Roman law
The Ofncium Robarie at Genoa .
Stipulations as to risk in the thirteenth century
Admiralty
rules
232-233
233-236
233-234
234-235
236
236-245
236
236-240
236-237
237-240
237
237-238
238
238-239
239
239-240
240
240
240-241
241
241-242
242-243
243
243
243-244
244-245
245
245-273
246-248
246
246-247
247-248
248-254
248
248-249
249-250
250-251
251-252
252-253
253-254
254-261
251-255
255
255-257
258
258-259
259-260
260
260-261
261-273
261-263
263-265
266-269
269-270
270-273
273-298
273
274-283
274
274-275
275
275
CONTENTS xvii
PAGE
Insurances disguised as sales or loans to evade prohibition of usury 275-276
The earliest insurance contract 276
Modelled on the maritime loan 277
Later modelled on a sale — consequences of this .... 277-278
Growth of insurance business in Italy ...... 278
Emerges as an independent contract 278
Forms of the contract 279
Rules which governed it ....... 279-281
Italian and Spanish legislation as to its validity .... 281-283
Its introduction into and its development in England .... 283-293
First mention is in the records of the Admiralty in 1547 . . 283
The practice then well known 283-284
Its Italian origin 284-285
Regulation by the Council 285
Grant of a monopoly right to register insurances . . . 286-287
Commissioners to try insurance cases 287
This tribunal was not a success 288
The statutory court to try London insurance cases . ... 289
Why it failed 289-290
Slow development of insurance law 290
Rules developed in the Admiralty 290-291
Rules developed by the common law courts and the Chancery . 291-292
Defects of the procedure of these courts 292-293
No progress made in the seventeenth century .... 293
The origins of other forms of insurance 294-298
Insurances against risks of transport by land 294
Fire insurance ......... 294
Legal differences between insurances against risks to property and
risks to the person 295
Life and accident insurance are not as yet developed . . . 295-296
Insurances against specified risks to the person .... 296
As yet they were undeveloped 296-297
These contracts were known in England 297-298
Signs of fresh developments 298
Mode in which the foundations of English commercial and maritime law
had been laid in this period 298-299
Absorption of this new jurisdiction needed to ensure the supremacy of
the common law 299
Commercial law is beginning to rival the land law in importance . 299
Effects of this on the future development of the common law . . 299-300
CHAPTER V
Crime and Tort
Influences which have shaped the development of the law .... 301-302
The contribution of the common law 302-305
Homicide 3°3-3°4
Larceny 3°4
Burglary 3°4-3°5
Arson 3°5
Principals and accessories 3°5
Misdemeanour and tort . . . . . . . . 3°5
Effects of combination of doctrines originating in the Star Chamber
and those originating in the common law ..... 3°6
The distinction between crime and tort 3°6
Summary of these influences 3°6-3°7
§ i. Constructive Treason and Other Cognate Offences . . 3°7-333
Constructive treason 3°7-322
Edward III.'s statute 3°7
Adhering to the king's enemies 3°7_3°8
Compassing or imagining the king's death 3°9-3xS
xviii CONTENTS
PAGE
The offence is the intention to kill 309
The mediaeval cases ........ 309
In the sixteenth century extensions are legislative and not con-
structive .......... 309-310
The inadequacy of the statute and dangers of the state . , 310
The vagueness of the statute 310-311
The proof of the intention to kill 311
The constructive extension of the late sixteenth and early
seventeenth centuries 311-312
Limitations then put on this extension ..... 312-313
These limitations not wholly logical 313-314
Progress of the doctrine in the latter half of the seventeenth
century .......... 314-316
How far accepted after the Revolution 316-318
Its application at the end of the eighteenth century . . 318
Levying war against the king 318-321
A conspiracy to levy war is not within the statute . . . 318-319
Wide interpretation of the phrase " levying war " . . . 319-320
Accepted after the Revolution ...... 320-321
The later history 321-322
Offences cognate to treason 322-331
The change in the conception of treason gives rise to these offences. 322
Misprision of treason 322-324
Unlawful assemblies, routs and riots 324-331
Definitions 324
The nature of riot and unlawful assembly .... 325-326
Evolution of the law as to unlawful assembly . . . 326-327
Repeal of the earlier legislation as to riot .... 327
Effect of this on the distinction between riot and treason . 327-328
The Riot Act 328-329
The liability of rioters ........ 329-330
The position of those who seek to suppress riots . . . 330-331
Why the law on these matters was rightly severe .... 331-332
Its success 332
Helped by other developments in the criminal law .... 333
§ 2. Defamation 333-378
When a crime and when a tort 333
Why it is both a crime and a tort ....... 333-334
The anomaly of the distinction between libel and slander . . . 334
The early history of defamation 334-335
Defects of the common law remedy 335
Aggravated by the action of the courts 335-336
Developments made by the Star Chamber 336
Combination of these developments with common law doctrines. . 336
Defamation as a crime 336-346
Varieties — against a private person or the government. . . 336-337
The various sorts of indictable words or writings .... 337
Law as to seditious words or writings determined by current views
as to relation of rulers and subjects 337-338
At this period the ruler is regarded as the superior of the subject. 338
Star Chamber principles applied in the common law courts . . 338-340
Definition of a seditious libel 340-341
Effect of the expiration of the Licensing Act .... 341
The definition of the offence is not changed 341
Was a seditious or malicious intent essential ? . . . . 341-342
Presence of the jury makes the question important . . . 342-343
The law of the latter part of the seventeenth century . . . 343-345
The eighteenth-century controversy 345
The law is undeveloped on many points in the seventeenth
century 346
Defamation as a tort 346-378
Early history of the common law action for defamation . . 346-361
CONTENTS xix
PAGE
Nature and scope of the action 346-347
When defamation is actionable per se 347-35°
When otherwise actionable 35°-35x
Slander of title 351-352
Torts analogous to slander of title 352
Discouragement of the action by the judges .... 353
Words actionable per se restrictively construed . . 353-355
The doctrine of mitior sensus . . . • • • 355-35°
Restrictive rules as to liability for the repetition of a
slander ,• • 357
Restrictive rules as to the kind of damage for which the
action lay 357-35°
What damage is the natural and probable consequence
of the defamation 35°
Effects on the law 35 0-301
The origin of the difference between libel and slander . . . 36l-3°7
Problems raised by the abolition of the Star Chamber . . 361-362
Were various offences treated as crimes by the Star Chamber
also torts? 3«2"3J3
If so, what was the nature of the tort ? 3°3-3°4
Why written defamation was treated differently from spoken
defamation 3^'3A
Good results of this development 365-3°°
Its evil results 3°°-3°7
The historical relation of the torts of libel and slander . . 367
The origin of some essential characteristics of libel and slander . . 367"37°
The words or writing must be defamatory . 3°7-3°8
The innuendo 368-369
The colloquium • • 3°9
The words or writing must be spoken or written of the plaintiff . 37Q-371
They must be published 37 J
The question of malice 37 1- 375
Malice was not the gist of the action on the case . . . 372
Held to be a necessary ingredient of the crime . • • 372_373
Elimination of this view 374-375
Justification 375'376
Privilege— the law on this point was rudimentary . . . 376-377
General conclusions 37°
§ 3. Conspiracy, Malicious Prosecution, and Maintenance . . 378-402
Growth of the law of conspiracy 378-379
The modern crime of conspiracy 379-384
The influence of the Star Chamber 379-38°
The gist of the offence 380-381
The meaning of the term " unlawful act " .... 381-382
Why a wide meaning was given to the term .... 382-383
Conspiracy and public policy ...... 383
Aims of the common law in its treatment of conspiracy . 384
Malicious prosecution . 385-391
Development of the mediaeval remedies .... 385
Comparison of statutory writ and the action on the case . 385-386
Conspiracies to indict for treason 386-387
Conspiracies to indict for misdemeanours . . . . 387
Conspiracies to injure by abuse of legal process . . . 388
Acquittal by verdict not heeded in the action on the case . 388-389
The action lay against one person only . . . • 389
Elimination of the idea that conspiracy is the gist of the
action 3°9-39°
Restatement of the law in Savile v. Roberts .... 39Q-391
The modern tort of conspiracy 392397
Why this is a modern question 392
The nature of the problem 392"393
Connection with the old tort of conspiracy . . ... 393
xx CONTENTS
PAGE
How far the rules applicable to the crime apply to the tort . 393-394
The part played by conspiracy in constituting the tort . . 394
The two views on this question 394-396
The effect of Sorrell v. Smith 396-397
Criticism of the law as thus settled .... 397
Maintenance 397-402
The mediaeval development 397-39^
Why the law assumed its modern form by the early
seventeenth century ....... 398
Tendency to treat it rather as tort than a crime . . . 398-399
Was the tort identical with the crime ? 399 400
Need to prove special damage ...... 400-401
Success of the maintained litigation is not a bar to the
action .......... 401
Criticism of this rule 401-402
§ 4. Legal Doctrines Resulting from the Laws Against Religious
Non-Conformity 402-420
In the Middle Ages religious non-conformity was an ecclesiastical
offence 402
Survival of mediaeval ideas after the Reformation .... 403
The disappearance of these ideas ....... 403-404
Manner in which this change was effected ...... 404
The chief chronological stages 404-405
The relation between law and religion in the seventeenth and
eighteenth centuries ........ 406-410
The early seventeenth century 406
The spheres of the ecclesiastical and common law courts . . 406-407
The late seventeenth century — the jurisdiction of the common
law courts to act as custodes morum 407
Indecency, profamity, and blasphemy regarded as crimes . . 407-408
Christianity is regarded as part of the law 408
Apostacy 408
Principle underlying the law 408-409
Trusts for anti-Christian purposes held to be void . . . 409
In some respects the law becomes more tolerant .... 409-410
But the old principle was still dominant ..... 410
The new situation created by the repeal of the laws against religious
non-conformity 410-414
The Toleration Act of 1689 410-411
Act in favour of Unitarians ........ 411-412
Acts of 1829 and 1832 in favour of the Roman Catholics . . 412
Superstitious uses not thereby legalized .... 412-413
Act in favour of the Jews 413
The position of atheists was not affected 413-414
The effect of this new situation on legal doctrine .... 414-417
New view that a reverend denial of Christianity was not a
criminal offence ........ 414-415
The establishment of this view 415-416
Trusts for non-Christian or anti-Christian purposes held to be
valid 416
Effect of this on ecclesiastical law 417
The effect of this new doctrine on the older legislation . . . 417-418
The general trend of this doctrine in the direction ot toleration . . 418-419
The past development and its possible consequences .... 419-420
§ 5. Lines of Future Development 421-433
The differentiation of wrongs 421-431
Wrongs to the person 421-424
Assault and battery 421-423
False imprisonment ........ 423
Unclassified wrongs dependent on negligence . . . 423-424
Wrongs to property 424-426
Public nuisances — when remediable by an action in tort . 424-425
CONTENTS xxi
PAGE
What will be accounted a nuisance 425-426
Deceit 426
Wrongs to domestic relations 427-430
Influence of the feudal conception of wardship . . . 427-428
Inadequate protection of a parent's rights .... 428
The fiction of loss of service 428-429
The abduction of a servant 429
The husband's rights to his wife's consortium . . . 430
The action of criminal conversation 430
Wrongs connected with commerce and industry .... 430-431
Commercial influences 430
Why they were not large till the nineteenth century . . 430-431
Enlarged as the result of nineteenth-century legislation . 431
The effect of these developments on the law 431-433
Its technicality • 431-432
Increased importance of rules of substantive law . . . 432
Effect on the principles of liability 432"433
6. The Principles of Liability 433-482
Criminal liability 433-446
The requirement of mens rea 433-438
Both an act and intent needed 433-434
The nature of the intent 434-435
Malice aforethought 435*436
The intent in manslaughter 436-437
The intent in larceny 437
The effect of the elaboration of the rules as to intent . . 437-438
Incapacities and defences ........ 438-445
Infancy 438-439
Insanity 439-441
Drunkenness 441-443
Coercion 443-444
Compulsion 444-445
Necessity 445
Mens Rea and the growth of the criminal law .... 446
Civil liability 446-482
The mediaeval principles 446-447
Modifications of and additions to these principles . . . 447
The conceptions of wrongful intention and negligence . . 447-464
The part played by wrongful intention .... 447-448
Negligence unknown in the mediaeval common law . . 449
The basis of liability in the Middle Ages .... 449-450
Need to ascertain the proximate quality of the damage in
actions on the case . 450
Effects of approaching negligence from this angle . . 450-451
First applied in the sphere of contract and quasi-contract . 451-452
Innkeepers common carriers and other bailees . . 452-453
Conception extended outside the spheres of contract and
quasi-contract 453
Application of this idea to trespass 453-458
Line of authorities denying its application . . . 453-455
But the current of authority was setting in the opposite
direction 455
Expansion of the idea of inevitable necessity . . 455-456
Rules applied to damage done by animals . . . 456-457
The rule in Holmes v. Mather ..... 457-458
Survivals of the mediaeval principle of liability . . . 459-464
Contributory negligence 459-462
The measure of damages for negligence . . . 462-464
The place of the mediaeval principle of liability in modern law . 464-472
Interferences with possession or the right to possess . . 465-468
Tendency to mitigate liability for such interferences . 465-466
How far this tendency has developed .... 466
xxii CONTENTS
PAGE
Acts amounting to asportation, conversion or breaking of
closes are not affected by it 466-467
The reason for this 467-468
The rule in Fletcher v. Ry lands 468-472
This rule was the general rule in the Middle Ages . . 468
A stricter liability for dangerous acts 469
Liability for acts of dangerous animals .... 469-470
Cattle trespass and nuisance 470-471
These various influences are apparent in the judgment in
Fletcher v. Ry lands 471-472
The doctrine of Employer's Liability 472-482
The mediaeval law on this topic 472-473
Continued till the time of Holt, C.J 473-474
His decisions on this topic . 474-475
Origins of the doctrine 475-477
The Roman influence 475-476
The influence of exceptional rules of the mediaeval common
law 476-477
Diverse explanations given of it . . . . . . . 477
The true reason for it 477-479
An unfortunate result of the late appreciation of the true reason . 479
The limits of the employer's liability 479-482
Who is a servant ? 479-480
The doctrine of common employment 480-481
The over-strictness of this doctrine ..... 481-482
The Workmen's Compensation Act 482
Conclusion 482
Index 483-500
LIST OF GASES
PAGE
Acton v. Symon
. 81
Adams and Lambert's Case . . 412
Admiralty Commissioners v. S.S.
Amerika
. 418
African Co. v. Mason
. 226
Aldred's Case .
. 471
Alexander v. Jenkins
• 350
Allen v. Flood
• 395. 397. 448
Allen v. Harris
83, 84
Andrew v. Boughey
14, 69
Armes, the case of .
• 33o
Arnolde c. Anthonison
. 258
Arris v. Stukeley
• 95
Assievedo v. Cambridge
2QI, 2g2
Astley v. Reynolds .
. 94
Atkins v. Banwell .
• 33
Atkins v. Hill .
28, 30
Atlas, the
. 261
Atty. Gen. v. Baxter
. 409
Atty. Gen. v. Bradlaugh
. 306
Atty. Gen. v. Fishmongei
s Co. . 413
Atty. Gen. v. Pearson
408, 411
Atwood's Case
. 339, 406
Atwood v. Monger .
. . 388
Austen c. Cattelyn .
. 263
Austin v. Culpepper
• 365
Austin v. Dowlir.g .
• 388
Aylesford (Earl of) v. Mo
rris . . in
B
Blackwells (Alderman) Case
241, 243, 244
22, 23, 24, 40
. 426
352. 354. 356
47
Bagge v. Slade
Baily v. Merrell
Baker v. Pierce
Balfour v. Balfour .
Bankrupts, the Case of
Ball v. Heskett
Barber v. Fox
Barber Surgeons of London v
Pel son
Barham v. Dennis .
Barham v. Nethersal
Barker v. Braham .
Barnaby v. Rigalt .
Barnardiston v. Coupland
240
26
3i
90
427, 428
354. 368
. 388
160, 162
. 26
Barnes v. Bruddel .... 357
Barnes v. Hedley . . . 30, 31
Barnes v. Holloway . . . 369
Barrow v. Wood .... 59
Barton v. Sadock . . . 227, 228
Barton v. Wolliford . . .291
Bartonshill Coal Co. v. Reid . 477, 479
Barwick's Case .... 13
Basely v. Clarkson .... 466
Bates v. Grabham .... 292
Bathurst v. Cox .... 33g
Battersey's Case .... 54
Bayley v. Homan .... 84
Bayly v. Merrel .... 45g
Beauchamp (Lord) v. Crofts . . 376
Bechuanaland Exploration Co. v.
London Trading Bank . . 176
Beckwith v. Nott .... 79
Beckwith v. Shordike . . 456, 466
Bell c. Bryde 260
Bell v. Fox and Gamble . . .387
Bell v. Thatcher .... 349
Bennett v. Allcott .... 429
Benson v. Morley .... 360
Bernina, The . . . 268, 461, 462
Beverley's Case . . 52, 439, 441
Birchley's Case .... 355
Birkmyr v. Darnell ... 66
Blake's Case . . . . 81, 82
Blisset v. Johnson .... 369
Blundell's Trusts, in re . . . 417
Blundell v. Winsor . . . 221
Bodacar c. Block .... 258
Bold Buccleugh, The . 271, 272, 273
Bomley v. Frazier . . . 164, 169
Bond v. Gonsales .... 292
Bonham's Case .... 240
Bonnel v. Foulke .... 94
Booth v. Arnold .... 350
Booth v. Scale . . . .355
Borneley c. Troute . . . 258
Borr v. Vandall .... 226
Bosden v. Thinn .... 17
Boson v. Sandford 252, 253, 474, 476, 477
Boss v. Litton .... 456
Boulton v. Arlesden . . 475, 476
Boulton v. Banks . . . .451
Bourne v. Keane . . 412,417,418
Bourne v. Mason . . . n, 12
Bovey v. Castleman . • • 75
xxju
XXIV
LIST OF CASES
PAGE
Bowen v. Hall .... 448
Bowman v. The Secular Society
55, 408, 414, 416, 417, 418, 419
Box v. Jubb .
468
Bracey v. Harris
241
Bracy's Case
239
Bradburn v. G.W.R.
295
Bragge v. S tanner .
58
Bray v. Hayne
35o
Brett v. J.S. and Wife .
18
Bridge v. Cage
53
Bridge v. Grand Junction
Railway
Co
461
Briggs's Case .
93
Briggs v. Hartley .
414.
416
Bright v. Cowper .
260
Brikhed v. Wilson .
79
British Columbia Electric
Co.
v.
Loach
,
461,
462
Broad v. Jollyfe
58
Brocas's Case
73
Broke c. Maynard . 283,
288,
290,
291
Bromage v. Prosser
374
Bromwich v. Lloyd
161,
169
Brook v. Montague
372,
376
377
Brough v. Parkins .
171
Brown v. London .
162
167
Brown v. Marsh
168
Browne v. Gibbons
351
-352
Browne c. Maye
246
Browning v. Beston
1
Buller v. Crips . 158
172
173
174
Bunniworth v. Gibbs
17
Burchell v. Slocock
156
173
Burdett v. Willett .
227
229
Burton's Case
107
109
Bush v. Steinman .
479
Bushell's Case
343
Butcher v. Andrews
12
Butcher v. Stapely
35
Butterfield v. Forrester .
461
Callisher v. Bischoffsheim . . 19
Calthorpe's Case .... 6
Calvin's Case ..... 409
Came v. Moye .... 290
Campbell v. Hall . . . . 409
Canter v. Shepheard ... 79
Canterbury (Viscount) v. the Queen
469, 477
Carey v. Crisp .... 240
Cargo ex Sultan . . . .261
Carlion v. Mill . . . 387, 390
Carpenter v. Tarrent . . . 356
Carter and Kenderdine's Contract,
in re 67
Carter v. Downish . . . 157, 163
Carter v. Palmer .... 172
Case v. Barber . . . 83, 84
Cavalchant c. Maynard . . . 290
Cavendish v. Middleton
Cayle's Case .
Cayzer v. Carron Co.
Chamberlain v. Prescot
Chandelor v. Lopus
Chapman v. Derby .
Chapman v. Peers .
Chapman v. Turner
Charnock's Case
Chesterfield v. Janssen
City of York v. Toun
Clark v. Pigot
Clark v. Bradlaugh
Clarke v. Shee
Claxton v. Swift
Clayton's Case
Clerk v. Taylors of Exeter
Clerke v. Martin
Cocke v. Camp
Coggs v. Bernard .
Cogley c. Taylor .
Coke v. Fliett .
Cole v. Turner
Colgate v. Bacheler
Collen v. Wright .
Collins v. Blantern .
Compagnon v. Martin
Cook's Case .
Cook v. Wright
Cooke v. Whorwood
Cooksey v. Boverie
Core's Case
Cotteril v. Starkey .
Cougham c. Kindt .
Cowan v. Milbourn
Cox v. Burbidge
Cramlington v. Evans
Craven v. Knight .
Craven v. Widdows
Crawley v. Crowther
Crittal v. Horner .
Crofts v. Brown
Cromwell's Case
Crosse v. Gardner .
Crouch v. Credit Foncier
Crow v. Rogers
Crowder ex pte
Culwin, the Case of
Currie v. Missa
Curry v. Walter
Cutler v. Dixon
Cutter v. Powell
Cutting v. Williams
D
PAGE
• 94
• 452
. 268
387, 389
68,69
227
256
243
316
III
91
165
413
94
157, 162
109
59
168, 172, 175
267
452
247
260
422
57
89
54
369
436
19
79
igo, 191
226
456, 460
247
414, 416
470
160, 162, 167, 168
242
242
It 172
349
355
355
70
176
12
165
242
308
11
377
376
73. 76
168, 173
Dacy v. Clinch .... 369
Dalby v. India and London Life
Assurance Co 295
Dale's Case ..... 68
Dandy v. Turner .... 293
Daniell c. Nokes . , . .267
LIST OF CASES
XXV
Darcy c. Legg
Davenant v. Midy
Davies v. Mann
Davis v. Saunders
Davis v. Gardiner
Davis v. Lewis
Daw v. Swaine
De Costa v. De Pas
De Libellis Famosis
De Neronia c. Burye
De Salizar c. Blackman
Dean of St. Asaph's Case
Dearie v. Hall
Deeks v. Strutt
Deguilder v. Depeister
Del bye v. Proudfoot
Denoyr v. Ogle
Depaba v. Ludlow .
Dewbery v. Chapman
Diamond Alkali Export
Bourgeois .
Dickenson v. Watson
Dictator, The
Director of Public Prosecutions v.
Beard .
Dive v. Manningham
Dixon v. Adams
Docket v. Voyel
Dovaston v. Payne
Dowdale's Case
Duckett c. Barne .
Duncan v. Finlater
Dunlop Pneumatic
Selfridge and Co.
Dupleix v. De Rowe
Duppa v. Gerrard .
Dutton v. Poole
Duvergier v. Fellows
Dybdale c. Holmes
Tj
Corp.
175.
PAGE
267
298
462
. 466
• 351
• 357
. 388
409, 413
336, 339
. 258
. 291
• 454
. 125
• 30
. 292
. 290
290, 297
. 292
93
Evanturel v. Evanturel
Evely v. Stouly
Everard v. Hopkins
PAGE
55
422
73
Faikiner, in re . . . -47
Farwell v. Boston and Worcester
272
256
454
273
442, 443
53, 66. 233
21
14
456
288
Co.
12,
Railway
Ferby v. Arrosmyth
Flewellin v. Rowe .
Flight v. Crasden .
Flight v. Reed
Flower v. Adam
Floyd v. Barker
Foakes v. Beer
Foord's Case .
Forward v. Pittard .
Foster v. Mackinnon
Fowler v. Sanders .
Foxley's Case .
Francis Throgmorton's Case
Furtado v. Rogers .
478, 48 1
58,59
86
33
37-39
461
376
40
79
453
50, 51
424
304
383, 389
. 291
Earle v. Oliver
East India Co. v. Sandys
Eastwood v. Kenyon
Eaton v. Allen
Edelstein v. Schuler
Edgcomb v. Dee
Edmunds v. Brown and Tillard
Edwards v. Hancher
Egerton v. Brownlow
Elborow v. Allen .
Elizabeth, The
Emerson c. De Sallanova
Entick v. Carrington
Estwick v. Conningsby .
Evans's Case .
Evans v. The Chamberlain
London
Evans v. Heathcote
Evans v. Marlett
Evans v. Walton
Galizard v. Rigault
2QI I Gallway v. Marshall
' Garrard v. Hardy .
Garret v. Taylor
Gayler and Pope v. Davies and Son
Gelder c. Worelond
Gelley v. Clerk
Gerrard v. Dickinson
Gibbons v. Pepper .
Giglis v. Welby
Gloucester Grammar School Case
Goddard v. Garrett
Goddard v. O'Brien
Good v. Cheesman .
Goodwin v. Robarts
I Goram v. Fouke
478]
47
91
90
29,40
221
258
33-34, 37, 39
201, 409
34. 37, 38, 4? Goring v. Goring .
354 Gourden c- Lovelake
j jq j Gower v. Capper .
Graham v. Stamper
Grant v. Vaughan .
Gray v. Jefferies
Green v. Young
Green leaf v. Barker
Grinnell v. Wells .
Guy v. Livesey
Gyllet c. Style
01
. 72
. 203
. 84
54,55
• 351
. 265
• 253
. 466
. 217
. 411
4M
39
257
428
164, 17
430
350
221
423
456
246
452
35i
455
152
425
292
8=?
173
176
292
22,83
260
72
223
3, 176
427
291
10, 21
429
43°
267
H
Hadley v. Baxendale
Hales v. Petit
Hall v. Hollander .
3°4
463
433
428
XXVI
LIST OF CASES
PAGE
PAGE
Halloway's Case .
• 435
I
Handcocke c. Payne
. 267
Hansard v. Robinson
• 157
Ive v. Chester
. 52
Harbert's Case
230, 231
Iveson v. Moore .
363. 365, -
Harding v. Bodman
• 376
Harford and Gardiner's Case .
. 18
Harman v. Delany .
• 365
J
Harman v. Vanhatton
292, 293
Harper v. Beamond
. 360
Jackson v. Adams .
.
• 354
Harrison v. Heathorn .
. 221
James v. Rutlech (or Rutledge)
Harrison v. Thornborough
• 356
349,
355, 368
Harry v. Perrit
163, 164
Janson v. Driefontein Mines Ltc
• . 54
Harvey v. Gibbons .
• 63
Janvier v. Sweeny .
• 352
Hatch v. Trayes
. 167
Jaques c. Hulson .
. 258
Hawkes v. Saunders
28, 30, 36
Jazawickreme v. Amarasuriya
• 43
Hawkins v. Cardy .
. 171
Jeffereys v. Small .
. 217
Hay v. Le Neve
. 266
Jefferies v. Austin .
. 168
Hayes v. Warren .
. 16
Jefferies v. Legendra
. 292
Haylyn v. Adamson
. 164
Jelliet v. Broad
58,59
Heath v. Chapman
• 413
Jenkins v. Turner .
. 45i
Henley v. Burstal .
• 387
John Royley's Case
• 303
Herbert v. Towns .
. 185
Johns v. Gittings .
. 375
Hern v. Nichols
475, 477
Johnson v. Astell .
22
Hext v. Yeomans .
• 354
Johnson v. Aylmer .
369, 370
Heyman v. R.
• 375
Johnson v. Collings
• 157
Hicksiv. Palington
. 265
Jones v. Barkley
• 74
Hill v. Lewis . . 156, 164
166, 170
Jones v. Brown
. 428
Hilsden v. Mercer .
369. 375
Jones v. Davers
• 37i
Hindhaugh v. Blakey
• 157
Jones v. Givin . 374
389,
39o, 39i
Hinton's Case
. 164
Jones v. Hart
. 260
Hitchcock v. Coker
. 62
Jones v. Hulton
. 37o
Hitchcock v. Sedgwick .
. 242
Jonson c. Bannister
253, 254
Hodge v. Vavisour
■ 9, 16
Jorden v. Money
. 48
Hodges v. Steward
Joscelin v. Skelton
6
155, 162, 163, 164
166, 167
Josceline v. Lassere
. 167
Hodsden v. Harridge
. 66
Joy v. Kent .
. 263
Hollins v. Fowler .
• 467
Hollis v. Briscow .
. 36°
Hollis v. Edwards .
• 35
K
Holmes's Case
• 305
Holmes v. Hall
• 93
Kaines v. Sir R. Knightly
. 2g2
Holmes v. Mather . . 457,
458, 466
Keeble v. Hickeringill .
426, 431
Holstcomb v. Rivers
. 217
Kemp v. Housgoe .
. 360
Holt v. Astgrigg
• 360
Kempe's Case
• 355
Hopkins v. Geary .
. 191
Kenrig v. Eggleston
• 259
Home v. Delapyn .
. 269
Ketsey's Case
• 52
Horton v. Coggs
. 171
Kiggil v. Player
. 240
How v. Prinn
• 35o
Kinder v. Taylor
. 221
Howard's (Sir Robert) Case .
. 297
King v. Lake
. 364
Howard v. Bell and Others .
• 326
Kinge c. Gomez
. 246
Howard v. Wood .
• 95
Kingston v. Booth .
• 473
Howlet v. Osbourn
. 92
Kingston v. Preston
74, 75
Hulbert v. Watts .
• 78
Kinnion v. Dacres .
• 45i
Hunlockev. Blacklowe .
. 58
Knapp v. Salsbury
• 456
Hunt v. Bate . . . .3
H» 15. 37
Knight v. German
• 389
Hunt v. Line ....
• 389
Knight v. Rushworth
10
Hurford v. Pile
. 82
Knipe v. Jesson
. 226
Hurlocke and Saunderson c. Collett 257
Huscombe v. Standring .
• 5i
Hussey v. Jacob . . 53
166, 169
L
Hutton's (Justice) Case .
• 339
Hyde v. Scyssor
• 430
Ladyngton v. Hussey
. 258
Hylein (or Heylin) v. Hastings
26,39
Lake v. King
•
• 376
LIST OF CASES
XXVll
PAGE
Lamb's Case 339
Lambert v. Bessey . . . 454, 455
Lambert v. Oakes .... 156
Lambert v. Pack . . 156, 164, 166
Lamine v. Dorrell .... 95
Lampleigh v. Brathwait 14, 15, 38-39
Lane v. Cotton . . . 474, 477
Lane v. Williams .... 217
Langdon v. Stokes ... 82
Lappage, in re . . . . 247
Laughter's Case .... 63
Laughter v. Pointer . . . 480
Law v. Harwood . . . 351,352
Law v. London Indisputable Life Policy
Co 295
Le Buck c. Van Voisdonck . . 259
Le Pypre v. Farr .... 293
Lea v. Exelby .... 78
Leame v. Bray . . . 454, 455
Lee v. Muggeridge . . 31.37
Leneret v. Rivet .... 79
Leroux v. Brown .
Lethuliers Case
Lewis v. Chase
Lincoln (Earl of) v. Fysher
Lincoln (Earl of) v. Topcliff
Littlefield v. Shee .
Lloyd v. Grace Smith and Co
Lloyd v. Lee .
Longridge v. Dorville
Lorde c. Butter
Lovet v. Faulkner .
Low v. Beard more
Ludkyn c. Edmunds
Lumley v. Gye
Lutwidge v. Gray .
Lynch v. Knight
Lyon v. Fishmongers Co
Lytt v. Ault .
Master v. Miller
Maunsell v. Hedges
Mathew v. Crass
Maxim Nordenfelt Co.
• 35
. 292
• 27
• 339
. 226
• 37
. 476
• 3i
. 19
. 267
• 386
• 387
. 246
29, 43i. 448
. 260
348, 357. 358
. 425
• 87
M
Macintyre v. Connell
Mackalley's Case .
Mackeller v. Todderick .
Mackonochie v. Lord Penzance
Maddy's Case
Makarell v. Bachelor
Maleverer v. Redshaw .
Manby v. Scott
Manning v. Fitzherbert .
Mansell and Herbert's Case
Manton v. Brocklebank .
Manwood and Burston's Case
Marham v. Pescod .
Marsh and Rainford's Case
Martin v. Boure
Martin v. Crompe .
Martin v. Sitwell .
Martyn v. Hind
Mason v. Keeling .
Mason v. Provident Clothing Co
. 192
329, 436
• 53
. 417
• 437
• 52
• 54
. 90
• 390
• 435
465, 466
7
• 387
• 15
159, 160
. 217
94. 292
. 29
454. 469
62
PAGE
• 65, 398
. . . 48
• 351
v. Nordenfelt
53. 56, 62
May v. Burdett .... 470
Maye c. Hawkyns .... 269
Mayor of Bradford v. Pickles . 397, 448
Mayor of Exeter v. Trimlet . . 91
Mayor of London v. Bennet . . 185
Mayor of London v. Gorry . . 90
Mayor of London v. Hunt . 90
McPherson v Daniels . . . 357
Medina v. Stoughton ... 70
Meechett v. Bradshaw . . . 242
Meggot v. Mills . . . 237, 240
Mercer v. Sparks .... 372
Mervyn v. Lyds . . . .18
Mew v. Russell .... 69
Mexican and South American Co.,
in re . . . . . 221
Meyer v. Haworth . . . -37
Michel's Trusts, in re . . . 417
Middleton v. Fowler . . . 475
Mildmay v. Standish . . . 351
Miles v. New Zealand Alford Estate
Co 19
Milles v. Milles .... 79
Milman v. Dolwell .... 456
Mitchel v. Reynolds . 12, 60-61, 62
Mitchil (or Michael) v. Alestree
453. 47o, 473
Mitten v. Faudyre . . . 451, 456
McNaghten's Case. . . 440, 441
Mogadara v. Holt .... 161
Moggridge v. Thackwell . . 409
Mogul Steamship Co. v. McGregor. 396
Molton v. Camroux 53
Moor v. Foster .... 360
Morris v. Saxelby .... 62
Mors v. Thacker . . . . 371
Morse v. Slue. . . . 251, 259
Morton v. Lamb .... 75
Moses v. Macfarlan . . . 97
Mouse's Case 264
Moyes v. Little .... 241
. 308, 380
. 414
Mulcahy v. R.
Murray v. Benbow.
X
Nash v. Inman .... 52
Neville v. London Express News-
paper Ltd. . 362, 363, 400-401
Newdigate v. Davy. ... 94
Newman v. Zachary . . . 358
Nichols v. Mars land . . . 468
Nichols v. Raynbred 73
Nicholson v. Sedgwick . . 164, 172
Normanby (Marquis of) v. Duke of
Devonshire 35
Norris v. Palmer .... 390
xxvm
LIST OF CASES
Northampton's (Earl of) Case
Norton v. Jason
Norton v. Simmes .
PAGE
357. 358
. 428
• 54
Oaste v. Taylor . . . 160
162
Officium Domini Regis c. Goods ex
a Hamburgh Ship
246
Officium Domini Regis c. The Eu-
genius .....
246
Ogle v. Barnes ....
454
Oldnoll's Case ....
34°
Omichund v. Barker
409
Paine v. Partrich .... 425
Paradine v. Jane .... 64
Parr v. Clegg 416
Pasley v. Freeman .... 426
Payne v. Beuwmorris . . . 350
Payne v. Porter . . . 385, 388
Paynter v. Williams . . 33, 37
Peacham's Case . . . 313,315
Peacock v. Rhodes . . . 165, 166
Pecke v. Redman .... 79
Pedro v. Barrett .... 393
Peytoe's Case 82
Phillips v. Homfray ... 38
Pickering v. Barkley . . . 291
Pickering v. Ilfracombe Railway
Co 54
Pigot's Case . . . .50, 54, 64
Pillans v. Van Mierop 29, 32, 35, 45,
47, 168
Pine's Case . .312, 315, 316, 339
Pinkney v. Hill .... 217
Pinnel's Case . . .20, 21, 80, 81
Pitt v. Smith 53
Planche v. Fletcher
Plymouth (Countess of) v. Throg
morton
451, 459, 46
Polemis, in re .
Pollard v. Evans
Pong v. Lindsay
Pope v. Lewyns
Pordage v. Cole
Potter v. Pearson
Poulterers' Case, The
Powell v. Hutchins
Poyntell c. De Billota
Poynter, the Case of
Pratt v. British Medical Association
Price v. Easton
Price v. Jenkings
Priestley v. Fowler . . . 480, 481
Printing Co. v. Sampson . . 56
Prugnell v. Gosse ... 58, 59
Q
PAGE
Quartz Hill Gold Mining Co. v. Eyre 391
Quin v. Leathern 392, 393, 395, 396, 397
291
76
2,463
390
79, 80
69
73
173
380
360
246
308
395
40
37i
R
Racine, The ....
Rainsford v. Fenwick
Ralph Comwaille, the Case 01
Ram v. Lamley
Ramsey v. Brabson
Rann v. Hughes 27, 28, 30, 35
Ratcliffe v. Evans . 351,352,
Ravens c. Hopton .
Raybould, in re
Raylestone c. Guerson
Reech v. Kennegal
Reediev. L.N.W.R.
Reeves v. Hearne .
Reniger v. Fogossa .
Revell c. Bona Stringar
R. v. Annet .
R. v. Arnold .
R. v. Barker .
Barnardiston
Baxter .
R. v. Beare
R. v. Best
R. v. Bradshaw and Others
R. v. Briellat .
R. v. Carlile .
R. v. Carr
R. v. Carroll .
R. v. Casement
R. v. Cassy and Cotter
R. v. Cole
R. v. Critchley
R. v. Crohagan
R. v. Cruse
R. v. Crutch! ey
R. v. Curl
R. v. Dammaree and Purchase
R. v. Davis .
R. v. Dudley .
R. v. Ellis
R. v. Ernest Jones .
R. v. Francklin
R. v. Frost
R. v. Fussell .
R. v. Gordon .
R. v. Lord George Gordon
R. v. Grey
R. v. Grey and Others
R. v. Griepe .
R. v. Grindley
Hadfield
R. v. Hale .
R. v. Hardy
R. v. Harman
R. v. Harris .
R. v. Harrison
R. v. Harvey .
434
464
52
102
376
244
, 36, 168
357, 365
. 291
. 467
. 246
. 28
. 480
• 39
441.445
. 258
. 408
• 440
. 411
34o, 343
• 340
337. 339
380, 381
• 3r9
• 339
• 413
340. 343
• 442
307, 308
• 305
• 237
• 339
315. 3i6
• 444
. 444
337. 4°8
. 320
. 442
• 445
• 326
. 327
344. 345
• 339
• 327
. 33g
320-321
• 303
. 381
• 368
• 442
• 440
. 408
318, 320
• 304
340. 345
• 339
. 374
LIST OF CASES
XXIX
PAGE
R. v. Hetherington . . . 413
R. v. Hicklin 337
R. v. Holyoake . . . .415
R. v. Home Tooke . .318, 320
R. v. Huggett . . . . 303
R. v. Hull .... 435, 436
R. v. Johnson 305
R. v. Johnson .... 340
R. v. Journeymen Taylors of Cam-
bridge 381
R. v. Keite 303
R. v. Kimberty .... 381
R. v. Kinnersley .... 380
R. v. Langley .... 337. 339
R. v. Levett .... 304, 434
R. v. Lovett 338
R. v. Lynch 308
R. v. M'Growther .... 444
R. v. Mawgridge . . . 303, 435
R. v. Meade .... 442, 443
R. v. Messenger Basely and Others 320
R. v. Monkhouse . . . > 443
R. v. Lord M or ley .... 303
R. v. Moxon 413
R. v. Munslow .... 375
R. v. Oneby 303
R. v. Orbell 381
R. v. Owen . . . 312, 315, 316
R. v. Penny .... 337
R. v. Pinney ..... 330
R. v. Pooley 415
R. v. Lord Preston . . .317
R. v. Ramsay and Foote 4, 10, 415, 416,
418
v. Raven .
v. Read
v. Salisbury
v. Sedley .
v. Serne
v. Soley
v. Starling
v. Stratton
v. Sudbury
R. v. Sullivan
R. v. Sutton .
R. v. Taylor .
R. v. Thorp .
R. v. Tong
R. v. Topham
R. v. Tutchin .
R. v. Twisleton and
R. v. Twyn .
R. v. Vaughan
R. v. Waddington
R. v. Webb .
R. v. Winterbotham
R. v. Woolston
Reynolds v. Clarke
Reynolds v. Pinhowe
Others
• 304
• 337
• 376
. 407
• 436
. 326
380, 381
~ 445
• 325
338
• 438
• 339
• 38i
314. 323
• 339
34i. 344
. 381
• 314
. 308
• 413
. 220
• 339
408, 410, 414
• 432
21
Reynolds v. Shipping Federation Ltd. 395
Richards and Bartlet's Case . 10, 21
Richardson v. Godwin . . . 243
Richardson v. Saunderson . . 269
Ricket v. Metropolitan Railway Co. 425
Ridolphe c. Nunez . . . 283
Ripon City, the . . 270, 271, 272
Ritzo c. Pignea .... 258
River Wear Commissioners v. Adamson
456
Roberts v. Tremayne . . . 107
Robins and Co. v Gray . . . 452
Robins v. H ildredon . . . 360
Rodriguez v. Speyer Bros. . . 56
Roe v. Haugh 8r>
Rogers v. Parry .... 58
Rogers v. Snow .... 73
Rose, Frank and Co. v. Crompton Bros.
47
Rosindale's Case . . 53
Rosweil v. Vaughan ... 68
Royley's Case .... 437
Rudder v. Price . . 79
Russell v. Corne . . . 429, 430
Rylands v. Fietcher 454, 455, 456, 465,
468, 469, 470, 471, 472
Salmon v. The Hamborough Co. 203, 204
Samson, in re 48
Saunderson v. Richardson . • 269
Savage v. Robery .... 369
Savignac v. Roome . . . 432
Savile v. Roberts 388, 389, 390-391, 393,
400
Scotson v. Pegg . . . H, 40, 41
Scott v. Shepherd . . 432, 454, 455
Scutt v. Hawkins .
Selby v. Carrier
Semayne's Case
Sere and Eland v. Colley
Seven Bishops, Case of the
Seward v. Baker
Shadwell v. Shadwell .
Sharington v. Strotton .
Sharpley v. Hurrel
Shelden v. Hentley
Shelley's Case
Sheperd v. Wakeman
Sheppard v. Maidstone .
Sheppard v. Wright
Sherwood v. Woodward .
Shore v. Wilson
Shrewsbury's (Countess of) Case
Shuttleworth v. Garnet .
Sibthorp's (Doctor) Case
Sidenham and Worlington's Case
6, 14. 15
Sidney's (Algernon) Case . 315, 3r6
Simondson c. Manelli . . . 247
. 369
• 355
• 325
• 237
• 34i. 344
• 9i
40, 41
6
. 107
• 165, 171
• 97
• 352
. 226
. 265
23, 24
• 412, 415
se 451
90, 91
• 349
Sippora v. Basset .
Skinner v. Gunton
Slade's Case . 9,
Smale v. Hammon
Smith, in re
• 429
. 389. 393
16, 28, 37, 89, 90, gi
• 352
• 417
XXX
LIST OF CASES
PAGE
Smith v. Airey .... 75
Smith v. Bromley .... 94
Smith v. Cranshaw . . . 387
Smith v. Oxenden .... 226
Smith v. Richardson . . . 373
Smith v. Watson .... 35
Somers v. House .... 356
Somerton's Case .... 68
Sorrell v. Smith . . 394, 396, 397
Southcot v. Bennet . . . 259
Southcote's Case . . 226, 259, 452
Southern v. How . 69, 227, 228, 430
Southern Rhodesia, in re . . 210
Spanish Ambassador v. Gifford . 73
Speerman v. Degrave . . . 229
Spencer v. Hemmerde . . . 39
Spinula v. Camby . . . 138, 140
Sprigwell v. Allen .... 68
Spysall v. Walters .... 267
Squire v. Johns .... 241
Stainbank v. Fenning . . . 262
Stanley v. Powell . 447, 454, 458, 466
Star v. Rookesby .... 452
Starke v. Cheeseman . . 91, 162
Starkey v. Mill . . . . 13
Steer v. Scoble .... 388
Stevens v. Savidge .... 261
Stewart v. Casey . . . -39
Stock v. Mawson .... 29
Stone v. Wythipol . . 10, 18, 36
Stoomvaart Maatschappy Nederland
v. The P. and O. Steam Naviga-
tion Co 266
Stuart v. Wilkins .... 70
Sturlyn v. Albany . . . .17
Sumner v. Brady .... 27
Sydenham v. Keilaway . . . 388
Sydenham v. May .... 369
Symonds v. Danyell . . . 258
Symons v. Darknoll . . . 259
Tailors of Ipswich, Case of the
Tanner v. Smart
Tasburgh v. Day
Tassell v. Lee
Tassell and Lee v. Lewis
Tatlock v. Harris .
Taylor's Case .
Taylor v. How
Taylor c. Pennincke
Taylor v. Perkins .
Temperton v. Russell
Tennant v. Goldwin
Thairlwall v. G.N.R.
Thomas v. Thomas
Thompson v. Harvey
Thorley v. Kerry
Thorneton c.
ventura
The Elizabeth Bona-
58, 59
39
35i
157
191
87
408
37i
258
349
448
47i
173
38
59
365, 366
397.
254
PAGE
Thornton v. Howe .... 416
Thoroughgood's Case . . 50, 51
Thorpe v. Thorpe 73
Thurston c. More .... 260
Tillett v. Ward . . . .456
Tobin v. The Queen . . . 477
Tolson v. Clark . . . .18
Tomkyns (or Tomkins) v. Barnet
(or Bernet) 94
Tottenham and Bedingfield's Case
Townsend v. Hunt .
Traske's Case
Trench v. Trewin .
Treswaller v. Keyne
Trewinian v. Howell
Trowel v. Evans .
Trueman v. Fenton
Tuberville v. Savage
Tuberville v. Stamp
Tubwomen v. The
London
Tuff v. Warman
Turnor v. Goodwin
Tweddle v. Atkinson
Tye c. Springham .
92,94
15. 16. 37
407
73
82
28
192
26
422
• 469, 474. 476
Brewers of
• • • 381
. 461
. 74
. 40
. 254, 271
Underwood v. Hewson .
V
454
Valentine v. Hyde .
395
Vandenanker v. Desborough
241
242
Vane's Case .
314
Vanspike v. Cleyson
377
Vaughan v. Ellis .
351
Vaughan v. Menlove
.
45o
Vawse c. Bygot
258
260
Veritas, The .
272
273
Vernon v. Boverie .
. 170
191
Vicars v. Wilcocks .
358
Villers v. Monsley .
.
365
w
Waberley v. Cockerel
82
Wade's Case .
80
Wade v. Simeon
19
Wain v. Bailey
173
Wainford v. Barker
65
Wakeman v. Robinson .
• 454
456
Walburn v. Ingilby
221
222
Walpole (Lord) v. Lord Orford
48
Waltham v. Mulgar
251
Ward v. Duncombe
125
Ward v. Evans . 170,
190, 191
475
Ware v. Chappel .
•
72
LIST OF CASES
XXXI
Ware and De Freville v. Motor
Trade Association . . . 395
Wason v. Walter .... 377
Waterer v. Freeman . . .388
Wakinv. Hall .... 369
Wayland's Case . . 475, 476, 477
Weatherston v. Hawkins . . 377
Weaver v. Cariden .... 354
Weaver v. Ward . . . 454, 455
Webb v. Beavan .... 348
Weedon v. Tirnbrell . . . 428
Weld Blundell v. Stephens . . 463
Welford v. Beazely 35
Wells v. Wells .... 28
Wennall v. Adney . . .36, 37, 38
West v. Shuttleworth . 412, 413, 417
Western v. Wildy . . . .291
Weston v. Dobniet . . . 376
Whelpdale's Cass . . . .51
Whiteheld c. Garrarde . . . 264
Whitehead v. Walker . . .156
Whittingham v. Hill ... 52
Whorwood v. Gybbons ... 6
Wild v. Middleton .... 237
Wilkinson v. Downton . . . 352
Wilkinson v. Kitchin . . . 94
William Bane's Cas? ... 10
William Lewson v. Kirk . . 226
PAGE
Williams's Case
. 424
Williams v. Field . . 163, 164, 171
Williams v. Moor .
33, 4°
Williams v. Steadman .
. 2gi
Williams v. Williams
161, 171
Wilson v. Carnley .
• 55
Wing v. Mill .
• 33
Wiseman v. Vandeputt .
• 243
Wood v. Hayes
. 238
Woodlife's Case
. 259
Woodrop Sims, The
266, 268
Woodward v. Aston
• 95
Woodward v. Ro.ve
161, 162
Woolvil v. Young .
. 168
Wright v. Reed
. 191
Wright v. Wilson .
• 423
Yard v. Eland
Yates v. Boen
Young's Case
Zenobio v. Axtell
13
53
436
37i
VOL. VIII.
LIST OF STATUTES
52 Henry III. c. 23
3 Edward I. c. 14 .
4 .. c. 14 .
13 .. st. 3 .
15 Edward III. c. 5
25 „ c. 17
27 ,, St. 2, C.
34 .. c. 1
17 Richard II. c. 8
13 Henry IV. c. 7
2 Henry V. c. 8
3 Henry VII. c. 5
c. 6
n „ c. 8
19 „ c. 9
c. 13
32 Henry VIII. c. 9
33
c. 20
c. 27
c. 4
C. 2
c. 9
c. 14
c 5
c. 20
34, 35 ..
35
37
1 Edward VI
3. 4
5>6 >.
1, 2 Philip and Mary c
1 Elizabeth c. 16
13 » c- 2
c. 7
c. 8
14 .. c- 3
c. 5
23 ,. c. I
39 .. c. 3
43 ., c. 4
,, ,i c- I2
1 James I. c. 15
21 ,, c. 12
21 ,, c. 16
c. 19
,» :> C. 24
12 Charles II. c. 13
13. J4
14
22, 23
29
30
c. 23
c. 24
C. 20
c 3
4
1 William and Mary c
S3.
18
Sess. 2
PAGE
• 231
. 269
. 259
. 231
. 102
. 231
. 269
• 331
• 331
• 331
• 331
103, i°7
. 103
. 107
. 231
• 331
398, 399
• 439
. 202
• 236
. 308
. 108
412, 417
• 327
109
• 313
• 327
• 3 '4
237-240
109, no
• 324
• 233
• 324
• 233
412, 417
. 286
237-240
. no
. 65
237-240, 244
. 231
. no
. 290
205, 237
• 235
• 65
• 235
405, 406, 410
c 15 235
xxxii
PAGE
3 William and Mary c.
')
• 304
4
c.
17
• 203
5- 6
.1 c
8
• 235
19 »!
11 c.
20
174.
203, 205
7, 8 William
III. C. 12 .
. 235
8,9
II
11
c. 18 .
c. 20 .
. 244
i88, 237
II
,,
c. 32
214,
224, 225
9
»
c. 26 .
c. 2g .
. 210
• 245
,1
,,
c 35 •
. 408
g, 10
„
c. 17 .
• 171
10
,,
c. 6
. 2og
3, 4 Anne
c.
9
173. 174
6
c.
3i •
• 469
10 ,,
c.
14 .
. 469
12 ,,
St
. 2, c. 16
. 112
1 George
I.
5t. 2, C. 5 .
320, 328
6
c. 18 .
198
215, 220
31 George
Ill
• c. 32
. 412
32
c. 60
• 345
36
c. 7
3^> 32i
53
c. 160
. 411
57
c. 6
. 321
1, 2 George
IV. c. 28
. 210
4
c. 94
. 221
10 ,
c. 7
. 412
2, 3 Willi
an
L IV. C 115
. 412
3, 4
IT
c. 98
. 191
g, 10 Victoria c. 59
. 413
11, 12 ,
C. 12
• 321
17, 18
c. 90
c. 104
101, 112
• 254
23, 24 -
c. 134
• 4i3
36, 37 .
c. 66
. 268
38, 39 ,1
c. 86
• 392
41, 42 ,
c. 13
• 157
45, 46 ,,
c. Gi 1.
3.
156,
157, 163,
igo
51. 52 ,
c. 46
. 416
54. 55 -
c. 51
357
56, 57 .
c. 71
52
57. 58 ,
c. 60
254
63, 64
c 51
112
6 Edward VII. c. 41
284
1, .,
c. 58
482
7
c. 24
. 196
1, 2 George
V. c. 57
26
6, 268
BOOK IV (Continued)
(1485-1700)
THE COMMON LAW AND ITS RIVALS
A HISTORY OF ENGLISH LAW
PART II
THE RULES OF LAW {Continued)
CHAPTER III
CONTRACT AND QUASI-CONTRACT
THAT the essence of contract is agreement, and the essence
of agreement is a union of wills, was as clearly recognized
by the lawyers of the sixteenth century as it is recog-
nized by us. " The agreement of the minds of the parties," it
was said in 1 5 53,1 "is the only thing the law respects in
contracts " ; and in 1 5 5 1 agreement had been defined as the
" union, collection, copulation, and conjunction of two or more
minds in anything done or to be done." 2 Both the treatment of
contract by the court of Chancery, and the development of the
action of assumpsit, had helped the lawyers to this conclusion.
We have seen that the Chancellor, starting from the broad
premise that redress should be given where faith was broken, had
helped to familiarize the common lawyers with the idea that
an agreement as such ought to be enforced ; 3 and that the
common lawyers had begun to give technical expression to this
idea by the developments which they had made in the actions of
debt and assumpsit* We have seen that the developments made
in both these actions had brought this idea into the common law;
but that it was the development of the latter action which was the
most fruitful. Debt was an old action which had originated at a
period when the common law had hardly grasped the idea that
an agreement as such should give rise to an action. It was
essentially proprietary in its nature,5 and therefore it was not so
readily adaptable to the purpose of enforcing agreements as
assumpsit, in which the element of agreement had had from the
first a prominent place.6
1 Browning v. Beston, Plowden at pp. 140-141.
2 Reniger v. Fogossa, Plowden at p. 17.
3 Vol. v 295-297. * Vol. iii 420-423, 429-453,
s Vol. ii 368 ; vol. iii 420. ' Ibid 429^430, 442.
VOL. VIII.— I I
2 CONTRACT AND QUASI-CONTRACT
This development of the idea of an enforceable agreement,
naturally brought to the front the problem of distinguishing the
agreements which the law would enforce, from those which it would
not — of drawing the line between contracts and mere pacts. It
was a problem which confronted both the court of Chancery and
the common law courts. Both sets of courts contributed some-
thing to its solution ; and ideas derived from both can be traced
in the history of the doctrine of consideration which solved it But
we shall see that the main essentials and ultimate contents of that
doctrine are wholly derived from the rules which regulated the
competence of the common law actions of debt and assumpsit, and
more especially from the rules developed by the successive expan-
sions of the latter action. In the first place, therefore, I shall
trace the history of the doctrine of consideration.
Naturally the recognition and growth of the actionable agree-
ment, and the settlement of the limits within which such agree-
ments were actionable, gave rise to the development of other rules
of contract law. Thus, the law began to acquire some rules as
to the causes and effects of the invalidity of contracts, as to the
manner of their enforcement, and as to their discharge. In the
second place, therefore, I shall say something as to the origins
of some of the modern rules on these topics, which begin to make
their appearance during this period.
Lastly, it will be necessary to say something of the origins of
our modern law as to quasi-contract. We have seen that it was at
the end of this period that the action of assumpsit was being
extended to enforce some of those quasi-contractual relations,
which were enforceable by the action of debt.1 We shall see that
it was the adaptation of the action of assumpsit to this new use,
and the development of its competence in this new sphere, which
have created our modern law of quasi-contract.
My arrangement of this chapter will therefore be as follows : —
§ i the Doctrine of Consideration ; § 2 the Invalidity, Enforce-
ment, and Discharge of Contracts ; § 3 Quasi-contract.
§ 1. The Doctrine of Consideration
In the first place, I shall say something of the term considera-
tion. We shall see that the history of the term, and of the manner
in which it gradually came to be a word with different technical
meanings in the spheres of the equitable and common law jurisdic-
tions, tells us something of the place which it acquired in the law
of contract, and of some of the characteristic features which it there
developed. In the second place, I shall give some account of the
development of the doctrine during the sixteenth and seventeenth
1 Vol. iii 450-451 ; vol. vi 639.
THE TERM CONSIDERATION 3
centuries. Some of the rules then developed have become the
settled rules of the modern common law ; but they have not attained
this position without difficulty. We shall see that, though the chief
and most permanent elements in the modern doctrine of considera-
tion have sprung from the procedural requirements of the action of
assumpsit, many difficulties have arisen in the process of translat-
ing these procedural rules into the substantive rules of the modern
law. These difficulties have arisen partly from the fact that
the action of assumpsit was constantly expanding all through this
period ; but chiefly from the fact that other elements, derived from
other sources, have made their influence felt We shall see that
we must reckon with influences derived from the action of debt,
with the influence of the idea of consideration which was being
developed by the court of Chancery, and, later, with the influence
of continental systems of law which came through the law merchant
Some of these influences helped to introduce into the doctrine of
consideration an element of moral obligation, which threatened at
one time to reduce it to a position of merely evidential value ; and,
long after this idea had been got rid of, they exercised a disturbing
influence on its evolutioa It was not till this disturbing influence
was removed by the decisions of the last three-quarters of the nine-
teenth century, that the doctrine has been settled mainly on the basis
of those ideas derived from the action of assumpsit from which it
started in the sixteenth and seventeenth centuries. With these
two topics, therefore, its development in the eighteenth and early
nineteenth centuries, and its settlement in the last three-quarters
of the nineteenth century, I shall deal next. Lastly, i shall
endeavour to estimate briefly the comparative merits of the English
doctrine of consideration and the modern continental developments
of the Roman causa.
The Term_ Consideration
We have seen that the one idea which the early common law
borrowed from the Roman law, was the idea that the nude pact
was not enforceable1 This idea was adapted to the common law
of the thirteenth century, and took shape in the principle that only
those agreements were actionable which could be brought within
the competence of some one of the older personal actions.2 But, as
soon as the older personal actions began to be employed for the
purpose of enforcing certain kinds of agreements, it began to be
obvious that some word or expression was needed to differentiate
the agreements which could "be enforced by them, from the agree-
ments which could riot It was in connection with the action
of debt that this need was then chiefly felt, for the requirement of
1 Vol. iii 413. * For these actions see voL iii 414-428.
4 CONTRACT AND QUASI-CONTRACT
a sealed writing as a condition precedent for bringing the action of
covenant supplied a clear test of enforceability. But we have seen
that debt did not lie unless the plaintiff had given something for
the promise ; and the expressions used to signify that the plaintiff
had satisfied this requirement were at first general words, such as
"cause" or "occasion," since the benefit received was generally
the motive or reason for making a grant.1 We have seen, how-
ever, that in the fifteenth century, the more precise expression
"quid pro quo" had been appropriated to express the conditions
under which the action of debt would lie ; and that, in consequence,
it had began to acquire almost a technical meaning.2 But, because
the expression " quid pro quo " had thus acquired a technical
meaning, some more general word was needed to express the act
or other circumstances which had led up to or was the motive or
reason for a given transaction. It is clear from the Year Books of
the fifteenth and early sixteenth century that the word " considera-
tion " was used for this purpose ; and the way in which it was
used shows that it had not then acquired a technical meaning.3
But, as soon as the action of assumpsit began to expand,
so as to remedy nonfeasances in breach of agreements, on the
faith of which the plaintiff had incurred some charge, the need for
some compendious word to express the incurring of this charge,
which rendered the agreement actionable, began to be very strongly
felt. The expression "quid pro quo" was clumsy and had been
appropriated to the action of debt4 On the other hand, the
expression " considej^tioji^jwaLs_^jmore^ convenient wordt^both
because it had a far more general significance, and because, within
thejphere of the comm^Ja^jurisdiction7"it had not yet fjgcome
a technical term.
~~WhTle these developments were taking place in the sphere of
the jurisdiction of the common law courts, the court of Chancery
had been obliged to tackle a somewhat similar problem. We
have seen that, for the purpose of its jurisdiction both over con-
tract and over uses, it had become necessary to lay down conditions
as to the circumstances under which it would act. It had become
necessary to distinguish between the enforceable and the unenforce-
able agreement,5 and between cases in which it would and cases in
1 " Par lescrit qil mest avant il suppose qe il nous faira certein services les queux
sont la cause de sa demande," Y.B. 6, 7 Ed. II. (S.S.) 83 per Westcot arg. ; " Dont
del hure que ceste annuite fu grante issint pur les services issint les services sont
loccasion," Y.B. 5 Ed. II. (S.S.) (1312) 2 per Herle arg. 2 Vol. iii 421-423.
8 An instance of the untechnical use of the word at common law will be found in
Y.B. 12 Ed. IV. Mich. pi. 2 per Choke, " s'il dit que un estranger baile les biens a luy
sans ceo que le pleintiff bailie, ce n'est purpose, car icy n'est nul consideration, per
que il duist traverser le contrary " ; and Y.B. 20 Hy. VII. Mich. pi. 20, " bargaine ou
autre consideration."
* " The term quid pro quo was exceedingly awkward, and besides, usage had
associated this term exclusively with debt," Street, Foundations of Legal Liability
ii 37. 5Vol. v 294-295.
THE TERM CONSIDERATION 5
which it would not protect a cestui que use.1 We have seen that
in the case of contract it adopted the canonist theory of causa,
and that the English word which it used to express this conception
was consideration.2 This use of the word tended to give the term,
if not a more technical, at any rate a more precise meaning.
Possibly it might have acquired the same technical meaning as the
canonists had given to the word "causa," if the court of Chancery
had been able to gain control over the development of the law of
contract. But we have seen that the common law rejected so
wide a test of the enforceability of contracts; and that the theory
of contract, evolved in the sphere of common law jurisdiction,
became the theory7 of English law.3 Hence a doctrine of con-
sideration in this form failed to get a foothold in English law ;
and this use of thejterm " consideration" disappeared with^fche
disappearance of the theory of contract, which had begun to be
worked out by the mediaeval chancellors. On the other hand,
tHe use of the term in connection with usgs did get a permanent
foothold in English law. We have seen that in that connection it
was used to express the conditions under which equity would
imply a use ; and that, in the course of the sixteenth century, those
conditions had come to be either the creation of a tenure,4 the
payment of money,5 or love and natural affection.6 We have seen
that the first kind of consideration soon ceased to be important7
But the two last, termed respectively "valuable" and "good."
consideration, came to be technical terms of permanent importance
in the law of conveyancing.8 We shall see that this use of the
term by equity has had an appreciable, though an indirect
influence, upon certain phases in the later history of the doctrine
of consideration developed by the common law courts.9
Thus, in the earlier half of the sixteenth century, the word
consideration, when used in connection with the law of contract,
had not acquired a technical meaning either at law or in equity.
It was no doubt frequently used ; but other words and expressions
were often used in competition with it to express the same idea.
Thus, as Mr. Street points out,10 St. Germain in the Doctor and
Student uses the following expressions : " Recompence (four
times), cause (three times), a certain consideration (twice), con-
sideration of worldly profit (once), cause in the sense of a desire to
maintain the cause of learning or service of God (once), quid pro
quo (once), goods or some other profit (once), thing assigned for a
1 Vol. iv 424, 425-427. a Vol. v 294-295 ; L.Q.R. xxiv 382.
3 Vol. v 296. * Vol. iv 429. s Ibid 424. « Ibid 425-426.
* For the history and influence of the idea that the creation of a tenure is a
consideration, see ibid 429-430, 469-470.
8 Ibid 427 ; above vol. vii 359. • Below 12-13, 26-29, 31-32, 36-38.
10 Foundations of Legal Liability ii 39 n. 1.
s
6 CONTRACT AND QUASI-CONTRACT
promise (once), new charge (once), charge by reason of the
promise (once)." The Termes de la Ley1 defines it as the material
cause or quid pro quo of a contract, without which it will not be
effectual or binding — thus explaining the use in the law of contract
of the, as yet, less technical word " consideration," by reference to
the more technical expression " quid pro quo." Similarly in 1 566,
in the case of Sharington v. Strotton? which, as we have seen, was a
case which turned upon the sufficiency of love and natural affection
to raise a use,3 it is clear that, in relation to the law of contract,
the term is used in a semi-popular sense to mean the circumstances
which will make the contract enforceable, either by the action of
debt or by the action of assumpsit;4 in Calthorpes Case (1 574)j5
it is used in quite a general way to mean "a cause or meritorious
occasion requiring a mutual recompence in fact or in law " ; '
various illustrations are given of the need for a consideration in
this wide sense in the law of property ; and in contract the need
for it is illustrated by a reference to the quid pro quo.7
We have seen that it was during the latter half of the sixteenth
century that assumpsit became alternative to debt, when debt was
brought on a contract, and that it became a remedy on purely
executory contracts.8 gy the_end of jhe_century, therefore, it had
become definitely the chief contractual action of_the common law.
Bur7 durihg^thelatter part of that century, the pleaders were
beginning to use the word " consideration " to introduce the facts
upon~~wnich they^eliecTlo make the promi^_enforceab]e_by
ajssjimp_sit.9 Hence it is not surprisingToHn3 that the word then
1 Cited Foundations of Legal Liability ii 39 n. g.
2 Plowden 300. 3 Vol. iv 426.
4 " For if upon consideration that you are my familiar friend or acquaintance, or
my brother, I promise to pay you ^,20, at such a day, you shall not have an action
upon the case or an action of debt lor it, for it is but a nude and barren contract, et
ex undo pacto non oritur actio, and there is no sufficient cause for the payment, nor is
anything done or given on the one part, for you were my brother or my acquaintance
before, and so will you be afterwards ; so that nothing is newly done on the one part,
as is requisite in contracts, and also in covenants upon consideration," Plowden at
p. 302.
8 Dyer 334b. 6 At f. 336b.
7 " Contracts and bargains have a quid pro quo," ibid. 8 Vol. iii 441-446.
9Joscelin v. Shelton (1557) 3 Leo. 4, where '' the plaintiff declared that the
defendant, in consideration that the son of the plaintiff would marry the daughter of
the defendant, assumed and promi.-ed to pay to him etc.," is perhaps the earliest
instance of the use of the term in this sense; Ames, Lectures 147 n. 1, cites this case,
and says that "it is a noteworthy fact that in the reports of the half dozen cases of
the reigns of Henry VIII. and Edward VI. the word 'consideration' does not ap-
pear " ; the fact that in Whorwood v. Gybbons (1587) Golds. 48 it was said that " it
is a common course in actions upon the case against him by whom the debt is due,
to declare without any words in considcratione," testifies at once to the growing habit
of using these words, and to the fact that the us ige was not quite settled ; it was
fairly well settled by 1585, for Periam, J., in Sidenham and Worlington's Case 2 Leo.
at p. 225 said, "in an action upon the case upon a promise, the declaration is laid,
that the defendant for and in consideration of £20. to him paid, (postea scil.) that is to
say, at a day after, super se assumpsit."
THE TERM CONSIDERATION 7
acquired the technical meaning of the facts or circumstances which
must be proved in order to make a promise enforceable by this
action. This fact is clearly illustrated by chief baron Manwood's
answer to a writ of error in a case to which he was a party.1 Not
only does he, throughout his answer, use the word consideration
in this sense, but he also classifies the various possible considera-
tions as follows: "There are," he says, 'three manner of con-
siderations upon which an assumpsit may be grounded : (i) a debt
precedent ; (2) when he to whom such a promise is made is
damnified by doing anything, or spends his labour at the instance
of the promiser, although no benefit cometh to the promiser . . .
(3) or there is a present consideration."2 It is clear that the
second of these considerations originates in the extension of the
action of assumpsit to cover certain kinds of nonfeasance in
breach of an undertaking ; 3 that the first originates in the extension
of the action to enforce a promise to pay an existing debt
(indebitatus assumpsit) ; 4 and that the third originates in the
extension of the action to enforce a promise which is given in
return for a promise 5
Consideration thus acquired its technical meaning in the
common law mainly in relation to the action of assumpsit. It
became the compendious word used to express the conditions
under which that action would lie, and therefore the condition
precedent for the validity of all those contracts which could only
be enforced by that action. Hence, as we shall see, the leading
characteristics of consideration, which emerged in the sixteenth
and seventeenth centuries, originate in the rules for the competence
of this action. But we have seen that the lawyers, in extending
the action of assumpsit to cover the field of simple contracts, used
analogies taken from the action of debt ; 6 and that they were
fully aware of the analogy existing between the quid pro quo
which the plaintiff must prove in order to succeed in an action of
debt, and the consideration which he must prove in order to suc-
ceed in an action of assumpsit.7 It is not surprising, therefore,
that ideas derived from the quid pro quo should have had some
permanent influence on the development of the law of contract,
and that its influence should still be apparent, not only in the
sixteenth century 8 but also in the definition of consideration
accepted in our modern law.9 Similarly, we have seen that the
term consideration had developed a different technical meaning in
equity.10 As the relations between the court of Chancery and the
1 Manwood and Burston's Case (1587) 2 Leo. 203. 2 Ibid at p. 204.
3 Vol. iii 434-441. 4 Ibid 442-444. 5 Ibid 444-446.
6 Ibid 436-438, 445-446. 7 Ibid 440. 8 Below 10-11, 22, 24.
v Below io-ii. 10 Vol. iv 424, 425-426 ; above 4-5.
8 CONTRACT AND QUASI-CONTRACT
common law courts were close, it is not surprising that the mean-
ing attached to the term in equity should have influenced indirectly
the meaning attached to it by the courts of common law.1 The
result is that, though the main principles of the doctrine of con-
sideration have been developed as logical deductions from the
conditions for success in the action of assumpsit, other influences
have made themselves felt ; and in the eighteenth and early nine-
teenth centuries, some of them seemed likely to give the doctrine
a shape very different from the shape which it was taking in the
sixteenth and seventeenth centuries, when it was being developed
mainly from its procedural basis in assumpsit.2 During the
nineteenth century a return was made to this procedural basis.3
But the result has been that the final shape of the doctrine has not
been settled till quite modern times.
To the history of this settlement we must now turn ; and
firstly we must consider some of the leading characteristics of the
doctrine which emerged in the sixteenth and seventeenth centuries.
Consideration in the Sixteenth and Seventeenth Centuries
The main influence which shaped the development of the
doctrine during this period must be sought in the nature and
competence of "express" or "special" assumpsit.4 But other
influences, which came partly from the actions of debt and account,
and the action of indebitatus assumpsit, which, during this period,
was superseding them,5 and partly from the equitable treatment
of consideration ; tended to modify, and even sometimes to con-
tradict, the principles which flowed logically from the nature and
competence of " express " or " special " assumpsit. The result was
that, at the end of the seventeenth century, the principles under-
lying the doctrine were on many points obscure and confused.
Ideas which originated from these diverse sources had led to
contradictory decisions on very similar sets of facts ; and though
certain principles, originating from the procedural basis of special
assumpsit, seemed to be firmly grasped, the competing influences
had sometimes given rise to decisions which cast doubts, or im-
posed limitations even on these principles.
Obviously it is difficult to give a clear account of the genesis
of a doctrine which began its career amid these conflicting in-
fluences. I think that it will be best understood if I take certain
of the principles, which were obviously derived from the conditions
1 Below 12-13, 26-29, 31-32, 36-38. 2 Below 25 seqq. 3 Below 34 seqq.
4 For the difference between " special " assumpsit brought on a contract, and in-
debitatus assumpsit brought on a debt formerly only enforceable by action of debt, see
vol. iii 446.
6 Ibid 420-423, 426-428, 442-444.
IN XVITH AND XVIITH CENTURIES 9
under which special assumpsit or indebitatus assumpsit lay, and
then consider in each case whether, and to what extent, they were
modified by other competing influences. The principles which I
propose to treat upon these lines are the following: (i) Consider-
ation may consist in mutual promises, a precedent debt, or a
detriment to the promisee. (2) Consideration need not move to
the promisor, but it must move from the promisee. (3) Consider-
ation may be executory or executed, but it cannot be past. (4)
Consideration need not be adequate, but it must be certain.
(5) Consideration must be an act or forbearance of some value in
the eye of the law.
(1) Consideration may consist in mutual promises \ a precedent
debt, or a detriment to the promisee.
We have seen that it was settled, during the latter part of the
sixteenth century, that mutual promises, provided that they were
made at the same instant, were consideration for each other.1 It
was only through the action of assumpsit that wholly executory
contracts of this kind could be enforced. Therefore the rule thus
ascertained for the competence of assumpsit could not be affected
by rules derived from any other source. From the end of the
sixteenth century it has been accepted without question or doubt,
and for that reason it has no history.
We have seen that it was settled in Slade's Case that a pre-
cedent debt was consideration for a subsequent promise, express
or implied, to pay it ; - and we shall see that this rule has made it
possible to sue in indebitatus assumpsit on obligations of a quasi-
contractual nature.3 But it is clear that this kind of consideration
is diffiult to reconcile with the undoubted rule that a consideration
cannot be past This objection was raised in 1 6 1 7 * to an
assumpsit on an express promise to pay a precedent debt for goods
delivered ; but it was overruled on the ground that, as the debt
always continued, the consideration was not past5 But obviously,
as the delivery of the goods, which constituted the debt, was a
past act done without any reference to the express subsequent
promise, it was not comparable, as Haughton, J., apparently tried
to argue,' to an executed consideration. It was in fact a past
consideration ; but, in spite of this fact, it was well settled that
assumpsit lay. We shall see that this rule that a precedent debt
1 Vol. iii 445. 3 (1603) 4 Co. Rep. 92b ; vol. iii 444.
3 Below 88 seqq. 4 Hodge v. Vavisour 3 Bulstr. 222.
5 " The debt here always continues," per Dodderidge, J., at p. 223.
• " In consideration that the plaintiff hath built a house for the defendant, he did
assume and promise to pay him so much, this is executed, here the assumpsit is for
money, this is to be paid on request ; here the defendant is clogged with a debt con-
tinually, and therefore this is here a good consideration to raise a promise."
10 CONTRACT AND QUASI-CONTRACT
was a valid consideration for a subsequent promise, had a large
effect upon the growth of the doctrine, by helping to introduce the
notion that the presence of a moral obligation might be sufficient
to constitute a consideration.1 We shall see, too, that this notion
tended to obscure the law as to the difference between a past and
an executed consideration, and to introduce doubts and difficulties
as to the validity of a past consideration.2
That consideration could consist merely in a detriment to the
promisee was clearly recognized in the Doctor and Student,3 and
in many cases decided at the end of the sixteenth and the begin-
ning of the seventeenth centuries.4 One instance will suffice. In
William Banes Case5 (1612), where an executrix, in considera-
tion of forbearance, promised to pay the debt of her testator, it
was held that the consideration was good ; "for it is as much as if
a stranger had said to the plaintiff forbear your debt, and do not
sue the defendant till Michaelmas, and at the said feast I will pay
you your debt, that is a good consideration, although it cannot be
any benefit to him who makes the promise ; yet because it is a
damage to the creditor to forbear his suit or duty, it is a good
consideration." 6 This is clearly the direct result of the fact that
assumpsit was originally an action in tort ; for it followed that
the gist of the action was, not the benefit got by the defendant-
promisor, but the detriment incurred by the plaintiff-promisee on
the faith of the defendant's promise. But in many, perhaps in
most cases, the detriment incurred by the promisee is also a benefit
to the promisor ; for this is always the case when the detriment
consists in a payment, conveyance of property, or service rendered
to the promisor. In the action of debt the lawyers naturally
regarded the matter from the side of benefit, and asked whether
the promisor had received a quid pro quo. But we have seen that,
when consideration was as yet an untechnical word, it was some-
times used synonymously with quid pro quo.7 Thus it is not
surprising to find that Coke said that " every consideration that
doth charge the defendant in an assumpsit must be to the benefit
of the defendant or charge of the plaintiff";8 and that the
accepted definition of consideration is that it consists in " some
right, interest, profit, or benefit accruing to the one party, or some
forbearance, detriment, loss, or responsibility given suffered or
1 Below 25-26. 2 Below 15-17. 3 Vol. Hi 440-441.
4 See Richard's and Bartlet's Case (1584) 1 Leo. 19, cited below 21 ; Greenleaf v.
Barker (1591) Cro. Eliza, at p. 194 ; Knight v. Rushworth (1596) ibid at p. 470 ;
and see the other cases cited by Ames, Lectures 143 n. 3.
6 9 Co. Rep. f. 93b. 6 At f. 94a. 7 Above 5-6.
8 Stone v. Wythipol (1588) Cro. Eliza, at p. 126 ; so also in Greenleaf v. Barker
(1591) ibid at p. 194, Gawdy and Fenner, JJ., said, " every consideration must be for
the benefit of the defendant, or some other at his request, or a thing done by the
plaintiff, for which he laboureth or hath prejudice."
IN XVITH AND XVIITH CENTURIES 11
undertaken by the other." 1 In truth, detriment to the promisee
is of the essence of the doctrine, and benefit to the promisor is,
when it exists, merely an accident.2 The idea that benefit to the
promisor is as much of its essence as detriment to the promisee, is,
as it has been truly said, " a heritage from debt." 3 In fact it comes
from a period when analogies taken from the action of debt were
used to explain the extensions made in the sphere of the action
of assumpsit, and when the doctrine of consideration was in its
infancy ; but it has lasted long, and has had in consequence some
influence on the evolution of the doctrine. That it is erroneous
and that it has been influential we shall see more clearly in the
following paragraphs.
(2) Consideration need not move to the promisor, but it must move
from the promisee.
The essence of consideration is thus, not a benefit to the
promisor-defendant, but a detriment to the promisee-plaintiff.
That detriment may, it is true, have resulted in a benefit to the
defendant ; but this fact — if fact it be — is, as we have seen, wholly
immaterial. But though the detriment to the plaintiff need not
have resulted in any benefit to the defendant, the form of the
action made it necessary that the detriment, incurred on the faith of
the promise, should have been incurred by the plaintiff to whom the
promise was made ; for it is he alone to whom the promise has been
made, on the faith of which he has suffered a detriment by altering
his position. This principle was recognized in the seventeenth
century. In 1646 it was held that, where J. and B. contracted
with each other that each should pay a sum of money to their
children who had intermarried, the administrator of B. could sue
J. for his contribution, "though he should receive no benefit if he
did recover" ;4 and in 1668, in the case of Bourne v. Mason,5 a
plaintiff was non-suited because "he did nothing of trouble to
himself or benefit to the defendant, but is a meer stranger to the
consideration."
This principle seems to us to be almost too plain for argument —
on historical grounds because it is an obvious deduction from the
1 Currie v. Missa (1875) L.R. 10 Ex. at p. 162 ; similarly Martin, B., in Scotson v.
Pegg (1861) 6 H. and N. at p. 299 said that " any act done whereby the contracting
party receives a benefit is a good consideration for a promise by him," and Wilde, B.'s
judgment, ibid at p. 300, is partially based on the same view of consideration ; see
below 41.
2 This was for the first time pointed out by Langdell, Contracts § 64.
3 Street, op. clt. ii 68 ; as Langdell, op. cit. § 64, says, " one of the most striking
differences between debt and assumpsit in respect to consideration is, that in debt the
consideration must inure to the benefit of the debtor, while in assumpsit it may inure
to the benefit of the promisor, or of some third person, or to the benefit of no one."
4 Anon. Style 6. 5 1 Ventris 6.
12 CONTRACT AND QUASI-CONTRACT
conditions under which assumpsit lay, and on logical grounds
because it is an elementary principle of contract law that only the
parties to the contract can be bound by or take benefits under a
contract. But it was by no means firmly grasped at this period.
This was due mainly to three causes.
(i) The disturbing influence of the equitable conception of
consideration.
We shall see that in the sixteenth century it was distinctly
asserted that, though love and natural affection were sufficient
considerations to raise a use, they would not support an assumpsit.1
But in Bourne v. Mason earlier cases, which were influenced by
this conception, were approved. In the first of these cases it was
held that a son could sue on a promise made to his father to settle
land on his marriage ; and in the second it was held that the
daughter of a physician could sue on a promise, made to her
father, to give her a sum of money if he performed a cure. In
the first case, said the court, " the parties that brought the
assumpsit did the meritorious act, though the promise was made
to another " ; and, in the second case, it was said that " the near-
ness of the relation gives the daughter the benefit of the considera-
tion performed by her father." The latter reason, which is
plainly inspired by the equitable conception, was the ground of
the decision in Dutton v. Poole 2 (1677). In that case it was held
that a promise, made by a son to his father, to pay ^1000 to his
sister, could be enforced by the sister. Scroggs, C.J., said that
" there was such apparent consideration of affection from the father
to his children, for whom nature obliges him to provide, that the
consideration and promise to the father may well extend to the
children." It is true that in 1724, in the case of Crow v. Rogers*
— a case which did not involve a family settlement — Bourne v.
Mason was followed, and a stranger to the consideration was not
allowed to sue. But it is clear that, as the law stood at the end
of the seventeenth century, ideas derived from the equitable con-
ception of consideration had introduced a considerable exception
to the rule that consideration must move from the promisee, which
tended to obscure the common law doctrine.4 It was not till
1 Below 18 and n. 3.
2 2 Lev. 211 ; we see the same confusion in Parker, C.J.'s, judgment in Mitchel v.
Reynolds (1711) 1 P. Wms. at p. 193.
8 1 Stra. 592 ; cp. Butcher v. Andrews (1699) Carth. 446 where a plaintiff, who
brought assumpsit against a father for money lent to the son at the father's request,
was not allowed to recover ; Holt, C.J., said " if it had been an indebitatus for so
much money paid by the plaintiff at the request of the defendant unto his son, it might
have been good, for then it would be the father's debt, and not his son's ; but when
the money is lent to the son, 'tis his proper debt, and not the father's."
4 For another curious confusion between the equitable and common law use of
the term see the judgment of Parker, C.J., in Mitchel v. Reynolds (1711) 1 P. Wms.
at p. 193, cited below 62 and n. 1.
IN XVITH AND XVIITH CENTURIES 13
the decisions of the nineteenth century 1 that this obscurity was
removed ; and, as we shall now see, its effect was increased by the
second of the two causes which hindered the clear perception of
this principle.
(ii) The disturbing influence of the idea, derived from the
competence of the actions of debt and account, that a person not
a party to an agreement may take a benefit thereunder.
We have seen that if money were paid by A to B for the use
of C, C could sue by action of debt or account ; 2 and that, in the
seventeenth century, he could make use of the action of indebitatus
assumpsit3 Thus in 165 1, in the case of Starkey v. Mi'//* a
father gave goods to his son in consideration that the son should
pay the plaintiff £20. The objection that there was no considera-
tion moving from the promisee was overruled; and Rolle, C.J.,
said, " that there was a plain contract, because the goods were
given for the benefit of the plaintiff though the contract be not
between him and the defendant, and he may well have an action
upon the case,5 for here is a promise in law made to the plaintiff,
though there be not a promise in fact etc., and there is a debt
here ; and the assumpsit is good." It would seem, too, from a
dictum of Holt's, that he agreed with this reasoning.6
(iii) The fact that the lawyers considered that benefit to the
promisor-defendant was, equally with detriment to the promisee-
plaintiff, a valid consideration, tended to obscure the fact that such
benefit ought only to have been considered a consideration, if it
moved from, and so was a detriment to, the promisee-plaintiff.
Rolle, C.J.s', judgment in Starkey v. Mi//"' exhibits clear traces
of this confusion. We shall now see that the confusion so caused
has tended to obscure the application of the rule that consideration
may be executed or executory, but cannot be past.
(3) Consideration may be executory or executed, but it cannot be
past.
The terms executed and executory are obviously apt terms to
describe the cases where the consideration for a promise has been
fulfilled, and where it has not They were applied to express this
difference between considerations in 1 597, though not in connec-
tion with the law of contract ; 8 and, as soon as the scope of as-
sumpsit was extended, so that by it wholly executory contracts
could be enforced, they begin to be used to express this difference
1 Below 40. * Vol. iii 425-428.
3 Ibid 447-450 ; below 88 seqq. 4 Style 296.
5 The action on the case here brought was assumpsit.
* u If A assumes to B to pay money to C upon good consideration, C may have
an action against A for this money," Yard v. Eland (1699) 1 Ld. Raym. at pp. 368-369.
7(i65i) Style 296. * Barwick's Case 5 Co. Rep. at f. 94a.
14 CONTRACT AND QUASI-CONTRACT
between the kinds of consideration which will validate a simple
contract.1
Before this date, however, the lawyers had begun to have some
perception of the difference between an executed and a past con-
sideration. We have seen that assumpsit lay upon a contract
where a detriment had been actually incurred by the promisee,
before it was extended to enforce a wholly executory contract ; 2
and that, except in the case of the contract of sale,3 debt would
not lie unless a quid pro quo had been actually received by the
defendant.4 The lawyers, therefore, were obliged to discriminate
between the performance of an act which would support a promise,
and the performance of an act which would not. Thus they were
obliged to recognize the rule that the gift of the quid pro quo, or
the incurring of the detriment, must be so connected with the pro-
mise that they formed substantially one transaction. In other
words, the distinction between an executed consideration which
would, and a past consideration which would not support a promise,
had been forced upon their attention in connection, both with the
action of debt, and the action of assumpsit. It is clear that St.
Germain considered that a promise given in return for a wholly
past act not done in contemplation of the promise, though it might
create a moral obligation, could not be united with the promise so
as to make the promise actionable.5
This principle was laid down in the case of Andrew v. Boughey 6
in 1553, and it was made the basis of the decision in the case of
Hunt v. Bate in 1568.7 In that case the servant of A had been
arrested, and B had bailed him. A, in consideration of this
action by B, had promised to indemnify him. It was held that no
action lay upon this promise because the consideration for it was
wholly past ; but that it would have been otherwise if the act done
1 In Sidenham and Wellington's Case (1585) 2 Leo. at p. 225 Periam, J., uses
the term executed in the sense of past ; and in Docket v. Voyel (1602) Cro. Eliza.
885 the terms past and executed are used as synonymous ; but in Lamp'.eigh v.
Brathwait (1616) Hob. at p. 106 an executed consideration, which is incorporated
with the promise, is distinguished from a past consideration, which, not being so in-
corporated, does not validate a contract ; the fact that the term " executed " then and
later was used as a synonym for "past" has tended to confuse this topic; cp.
Street, op. cit. ii 83.
2 Vol. iii 441-442. 8 Ibid 355-356, 423, 445-446. 4 Ibid 423.
5 " Doctor. But what hold they if the promise be made for a thing past, as I
promise thee xl li, for that thou hast builded me such a house, lyeth an action then ?
Student. They suppose nay, but he shall be bound in conscience to perform it after
his intent," Bk. II. c. 24.
6 " Here the warranty and promise of the goodness of the wax was void and of
no force in law, because it was not made immediately upon the contract but a month
after," Dyer at f. 76a.
7 Dyer f. 272a ; the note to that case contains a valuable collection of sixteenth
and early seventeenth century cases which show that the distinction between a past
and an executed consideration was well understood.
IN XVITH AND XVIITH CENTURIES 15
by the plaintiff had been done at the request ot the defendant1
In 1585 in Sidenham and Worlingtori s Case2 the distinction was
laid down in almost modern fashion by Rhodes, J.3 " If one serve
me for a year and hath nothing for his service, and afterwards at
the end of a year I promise him 20 pounds for his good and faithful
service ended, he may have and maintain an action upon the case
upon the same promise, for it is made upon a good consideration ;
but if a servant hath wages given him, and his master ex abundanti,
doth promise him 10 pounds more after his service ended, he shall
not maintain an action for that 1 o pounds upon the said promise ;
for there is not any new cause or consideration preceding the
promise." In 1636 Jones and Croke, JJ., in the case of Townsend
v. Hunt, made a very similar statement.4 Clearly this view of the
law facilitated the adaptation of assumpsit to the sphere of implied
contracts.5 If A does work or performs a service for B at B's
request, the work or the service can be regarded as an executed
consideration, which will support a promise to pay.
It is clear from these and other cases that the lawyers were
fixing upon the fact that the service was done by the plaintiff at
the request of the defendant, as the feature which differentiated an
executed from a past consideration. Thus we have seen that in
Hunt v. Bate it was said that if the master had first requested the
plaintiff to bail his servant it would have made all the difference.6
This distinction was approved by Periam 7 and Rhodes, J J. ,8 in
Sidenham and Worlingtori s Case ; and was clearly stated in its
accepted form in 1616 in the well-known case of Lampleigh v.
Brathwait* — "ameer voluntary curtesie will not have a considera-
tion to uphold an assumpsit. But if that curtesie were moved by
a suit or request of the party that gives the assumpsit, it will bind,
for the promise though it follows, yet is not naked, but couples
itself with the suit before, and the merits of the party procured by
that suit, which is the difference."
But this manner of stating the law led to some confusion as to
1 " By the opinion of the Court it (the action) does not lie in this matter, because
there is no consideration wherefore the defendant should be charged for the debt of
his servant, unless the master had first promised to discharge the plaintiff before the
enlargement and mainprize made of his servant, for the master did never make re-
quest to the plaintiff for his servant to do so much, but he did it of his own head.
But in another like action on the case brought upon a promise of twenty pounds made
to the plaintiff by the defendant in consideration that the plaintiff, at the special in-
stance of the said defendant, had taken to wife the cousin of the defendant, that was
good cause, although the marriage was executed and past before the undertaking and
promise, because the marriage ensued (upon) the request of the defendant," ibid at ff.
272a, 272b.
2 2 Leo. 224. 3 Ibid at p. 225.
4Cro. Car. 408-409, cited below 16 n. 4; cp. also Marsh and Rainford's Case
(1588) 2 Leo. hi.
5 Vol. Hi 446-447. « Above n. 1. 72 Leo. at p. 225.
8 Ibid. » Hobart 105, at p. 106.
16 CONTRACT AND QUASI-CONTRACT
the basis on which it really rested, which, as we shall see,1 was not
cleared up till the nineteenth century. To explain how this con-
fusion arose, we must glance at the manner in which the form of
assumpsit known as indebitatus assumpsit had been allowed to
encroach on the sphere of debt. We have seen that Slade's Case 2
sanctioned the principle that the existence of a precedent debt
raised an implied promise to pay it. The consideration for the
promise was the precedent debt. But this was clearly a past con-
sideration. This point was, as we have seen, taken in the case of
Hodge v. Vavisour'm 1617, but it was overruled.3 The debt it
was said "always continues," and "the law will imply a tacit con-
sideration " ; and it was compared to a case where the service
was executed on the request of the defendant. Clearly these
reasons were specious rather than sound. They were verbal
quibbles put forward to explain the undoubted fact that indebitatus
assumpsit lay upon a precedent debt, and to square this fact with
the undoubted rule that a past consideration was no consideration.
The result seems to have been that not only the case where a promise
was made to pay a precedent debt, but also the case where an act
was done on request, were regarded as being in substance excepT
tions to the rule that a past consideration was invalid. For this
reason the latter class of cases were not treated, as the earlier
decisions treated them, as cases of executed consideration, but as
showing that a past consideration, if given at the request of the
plaintiff, was valid.4 It was for this reason that it was held, in the
case of Hayes v. Warren? in 1724, that if work was done by the
plaintiff he could not sue on a subsequent promise to pay, unless it
was alleged that the work was done at the request of the defendant,
or unless such request could be implied by proof that the defendant
had had the benefit of the work.
It is obvious, therefore, that the course which the decisions had
1 Below 38-39. 2(i6o3) 4 Co. Rep. 92b; vol. iii 443-444.
3 3 Bulstr. 222 ; above g.
4 This is illustrated by the case of Townsend v. Hunt (1636) Cro. Car. 408 ; in
that case the defendant's wife was an executrix and as such liable to pay a legacy of
£60 to the plaintiff when he came of age; the defendant and his wife paid £53 in
April, and the plaintiff gave a general release ; in September the defendant, in con-
sideration that the plaintiff had at his request given this release, promised to pay the
remaining £j; Jones and Croke, JJ., held that the contract was valid, "for if this
promise had been made at the time of the release made, it had been clearly a good
promise and a good consideration ; then, being made after the release, forasmuch as
the release is made at the defendant's request, and the defendant hath the continuance
of the benefit thereof, the promise upon this consideration is good enough " ; after the
verdict the exception that the consideration was past was again moved, "sed non
allocatur ; because it was made at the defendant's request " ; note the recurrence of
the idea that consideration may consist in a benefit to the promisor-defendant.
6Stra. 933 — "it was objected that this was a past consideration; and not being
laid to be done at the request of the defendant, it could be no consideration to raise an
assumpsit."
IN XVITH AND XVIITH CENTURIES 17
taken in the seventeenth century had tended, firstly, to obscure the
relations between executed and past consideration ; and, secondly,
to indicate that the rule that a past consideration was invalid was
a rule which admitted of exceptions. The rule that a precedent
debt would support an action of indebitatus assumpsit was a clear
exception ; and, if it is argued that the consideration is sufficient
because the man who owed the debt ought to pay it, it is clear
that the acceptance of this argument will mean the admission of
something very like moral obligation as a valid consideration.1 It
is clear, too, that the decisions which made for exceptions to the
rule that consideration must move from the promisee, and especially
the decisions which allowed a person, not a party to a contract, to^
sue on a contract made for his benefit,2 tend in the same direction, j
All this, as we shall see later, tended to obscure the logical de- \
velopment of the doctrine from its procedural basis in assumpsit.
But at this point we must consider, in the two following sections,
the development of certain other rules which emerged in the
seventeenth century. Here again we shall see conflicting tendencies
at work which prevented any final settlement of the law during
this period.
(4) Consideration need not be adequate but it must be certain.
The law has never attempted to adjudicate upon the adequacy
of a consideration. That is a matter for the parties to the con-
tract. If a person chooses to make an extravagant promise for an
inadequate consideration it is his own affair.3 Thus in 1587, in
the case of Sturlyn v. Albany* it was said that "when a thing is
to be done by the plaintiff, be it never so small, this is a sufficient
consideration to ground an action" ; and this principle is an ac-
cepted doctrine of our modern law. But, though the consideration
need not be adequate, it must be sufficiently definite for the court
to see that it really exists. Thus it was said in 1553 that, "if I
bargain with you that I will give you for your land as much as it
is reasonably worth, this is void for default of certainty ; but if the
judging of this be referred to a third person, and he adjudge it,
1 Thus in Bosden v. Thinn (1603) Cro. Jac. at p. 19 the court decided in favour
of the plaintiff, " because Roberts, upon the plaintiff's undertaking at the defendant's
request, had credit given him by Fludd; and that the plaintiff was damnified by reason
thereof, which in conscience the defendant ought to satisfy ; that the consideration is
sufficient and not past " ; cp. the Doctor and Student cited above 14 n. 5.
8 Above 12.
5 " The idea," says Sir F. Pollock, " is characteristic not only in English positive
law but in the English school of theoretical jurisprudence and politics. Hobbes says :
1 the value of all things contracted for is measured by the appetite of the contractors,
and therefore the just value is that which they be contented to give,' " Contracts
(9th ed.) 186-187.
4Cro. Eliza. 67; cp. Bunniworth v. Gibbs (1654) Style 419 per Rolle, C.J.
VOL. VIII.— 2
18 CONTRACT AND QUASI-CONTRACT
then it is good." x In 1 588 2 and 1600 3 it was held that love and
natural affection were not considerations upon which an assumpsit
could be grounded. In 1636 it was held that a promise to forbear
"aliquo tempore" was void for uncertainty.4
It is easy to state this principle, but difficult to apply it to
concrete cases which come near the line ; and it is clear that this
difficulty will be enormously increased, if once the law begins to
develop those lines of cases which tended to mix up moral obliga-
tion and consideration. No doubt it is easy to say that one test of
certainty is to be obtained by asking whether the act or forbearance
had a definite value. But this solution merely shifts the difficulty,
for, as we shall now see, the law had no very clear ideas as to what
acts or things it accounted of sufficiently definite value.
(5) Consideration must be an act or forbearance of some value
in the eye of the law.
The question whether or not an act or forbearance is of suf-
ficient value in the eye of the law, was discussed during this period
chiefly in three classes of cases : (i) when the promise was made in
consideration of a forbearance to prosecute a groundless claim ; (ii)
when a promise was made by a creditor to his debtor that, in con-
sideration that the debtor would pay or promise to pay his debt
wholly or in part, the creditor would release him ; and (iii) when
a promise was made by a third person that he would do something
for one of the parties to a subsisting valid contract, if that party
would perform or promise to perform his duty under the contract.5
(i) Promises made in consideration of a forbearance to prosecute
a groundless claim.6
It was settled in 1 568, in the case of Stone v. Wythipol,1 that
forbearance to prosecute an invalid claim was no consideration.
In that case the executor of an infant testator promised to pay his
testator's debt, if the creditor would forbear to sue. It was held
that, as he could not have sued for this debt because the testator
was an infant, the promise of the executor to pay was based on no
consideration. Coke's argument, to which the court assented, was
as follows : " Every consideration that doth charge the defendant
in an assumpsit must be to the benefit of the defendant or charge
1 Mervyn v. Lyds, Dyer at f. 91 a.
2 Harford and Gardiner's Case 2 Leo. 30.
3 Brett v. J.S. and his Wife, Cro. Eliza. 756 — " Natural affection of itself is not a
sufficient consideration to ground an assumpsit; for although it be sufficient to raise
a use, yet it is not sufficient to ground an action without an express quid pro quo."
4 Tolson v. Clark, Cro. Car. 438.
6 On these topics generally see Ames, Two Theories of Consideration, Lectures
323-353.
8 See Ames, op. cit. 325-327. 7 Cro. Eliza. 126.
IN XVITH AND XVIITH CENTURIES 19
of the plaintiff, and no case can be put out of this rule. And this
contract by the infant was void ; and staying of suit is no benefit
to the defendant, nor any charge to the plaintiff, more than was
before." This decision was followed in a long line of cases;1 and
substantially the same reasoning as that used by Coke was used by
Tindal, C.J., in 1846.2 But, before this date, it had ceased to be
possible to state the principle quite so absolutely. It had been
decided in 1821 that forbearance to prosecute a suit already in-
stituted, when the law was doubtful, was a valid consideration for
a promise.3 This view was approved in 1861, and extended to a
forbearance to institute proceedings to establish a claim which there
was a bona fide intention to make the subject of litigation.4 Finally,
in 1870, in the case of Callisher v. Bischoffsheim? it was held that
forbearance to prosecute a bona fide claim was a good consideration,
though the claim was in fact baseless. It would seem, therefore,
that the old principle only applies to a forbearance to prosecute a
claim which the claimant knows to be baseless.6
(ii) During this period a much discussed question was the
validity of a promise made by a creditor to his debtor that, in
consideration of the debtor paying or promising to pay the whole
or part of his debt, the creditor would release him. During this
period opinion was fairly evenly divided upon this question. Let
us look at the cases, firstly upon the question whether the actual
payment of the whole or part of an existing debt, and secondly
upon the question whether a promise to pay the whole or a part
of an existing debt, could be a good consideration for a release.
(a) There were two lines of reasoning which led the courts to
deny that a part payment by a debtor was a consideration for a
promise by his creditor to release him.
1 See the list collected by Ames, op. cit. 325 n. 2.
* " In order to constitute a binding promise, the plaintiff must show a good con-
sideration, something beneficial to the defendant, or detrimental to the plaintiff.
Detrimental to the plaintiff it cannot be if he has no cause of action ; and beneficial
to the defendant it cannot be ; for, in contemplation of law, the defence upon such an
admitted state of facts must be successful, and the defendant will recover costs, which
must be assumed to be a full compensation for all the legal damage he may sustain,"
Wade v. Simeon 2 C.B. at p. 564.
3 Longridge v. Dorville 5 B. and Aid. 117.
4 Cook v. Wright 1 B. and S. 559. 5 L.R. 4 Q.B. 449.
• " Every day a compromise is affected on the ground that the party making it
has a chance of succeeding in it, and if he bona fide believes he has a fair chance* of
success, he has a reasonable ground for suing, and his forbearance to sue will con-
stitute a good consideration. ... It would be another matter if a person made a
claim which he knew to be unfounded, and, by a compromise derived an advantage
under it; in that case his conduct would be fraudulent," per Cockburn, C.J., L.R.
4 Q.B. at p. 452; "It seems to me that if an intending litigant bona fide forbears a
right to litigate a question of law or fact, which it is not vexatious or frivolous to
litigate, he does give up something of value," Miles v. New Zealand Alford Estate Co.
(1886) 32 CD. at p. 291, per Bowen, L.J.
20 CONTRACT AND QUASI-CONTRACT
Firstly, after some hesitation in the fifteenth century,1 the
opinion of Brian, C.J., to the effect that a smaller sum cannot be
a satisfaction for a larger,2 had come to be generally approved in
the sixteenth century.3 The rule on this point was stated in its
final form in PinneCs Case in 1602 : 4 " Payment of a lesser sum
on the day in satisfaction of a greater cannot be any satisfaction
for the whole, because it appears to the judges that by no
possibility a lesser sum can be a satisfaction to the plaintiff for a
greater sum ; but the gift of a horse hawk or robe etc., in satis-
faction is good." This really amounts to the arithmetic proposition
that a lesser sum cannot be satisfaction for a greater.5 It is a rule
relating to the discharge of contract, which was evolved in the
sphere of the action of debt, and naturally followed from the
limitations of that action. It is not, and it could not be, based
upon the view that such an agreement was not enforceable by
action of assumpsit, because there was no consideration for it, for
the simple reason that the action of assumpsit was only just
beginning to develop, and the doctrine of consideration was as yet
wholly undeveloped.6 In fact, till the expansion of assumpsit to
remedy purely executory contracts, it was inevitable that this ques-
tion should be regarded solely from the point of view of the action of
debt. A mere agreement to discharge was not actionable. It only
became actionable when the thing for which the discharge was
promised was done ; for, till then, the promisor had no quid pro
quo. But if that thing was less than the party doing it was
liable to do, where was the quid pro quo ? As Brian, C.J. , said,
" It is agreed that the agreement merely is nothing to the purpose,
but the agreement coupled with the satisfaction ; so that the per-
formance of the agreement is the substance of the plea." 7
Secondly, we have seen that the Roman rule, that a contractual
obligation ought to be discharged by the same formalities as those
by which it had been made, had been received by the common
law.8 It followed that a contract, which purported to discharge
1Y.B. 33 Hy. VI. Mich. pi. 32 (p. 48) per Danvers, J., cited An.es, op. cit. 329;
and in Y.B. 10 Hy. VII. Mich. pi. 4, Fineux, J., expressed the same opinion — " Semble
que il n'y ad diversite perenter le cas de satisfaction de concord in argent ou d'un
cheval. Car nien obstant que le sum in concord soit moins que le sum in demande ;
uncore quand le debtee (i.e. creditor) ce ad receu per son agreement demesne, c'est
ausey bon satisfaction a luy en Ley come receit d'un chose d'autre nature" ; to the
same effect Perkins, Profitable Book § 749 (ed. 1642), who notices the divergence of
opinion on the point.
2 " L'accion est port sur xxl., et le concord que il paiera forsque x/., lequel appert
estre nul satisfaction de xxl., car paiement de xl., ne poit estre paiement de xxZ. . . .
Mes si fuit du cheval, quel cheval est paye accordant al concord, c'est bon satisfaction ;
car non appert le quel le cheval vault plus ou moins que le som en demande," Y.B.
10 Hy. VII. Mich. pi. 4.
3(1563) Dalison 49 ; (1587) 4 Leo. 81. 45 Co. Rep. 117a.
8 Ames, op. cit. 330-331. 6 Ibid 330.
7 Y.B. 10 Hy. VII. Mich. pi. 4. 8 Vol. ii 277 n. 10.
IN XVITH AND XVIITH CENTURIES 21
an existing contractual obligation, must be based on consideration.
But if A, being under a contractual obligation to pay £10 to B,
agrees with B that, if B will discharge him, he will pay £5, what
consideration is there for B's promise ? Clearly A has incurred no
detriment by the making of such a promise. It follows that such
a consideration is not valid. This reasoning was followed in
Richards and Bartlefs Case in 1584.1 In that case R, the
executrix of A, sued B for the price of corn delivered by her
testator. B pleaded that, after the contract had been made, R
agreed that, because the corn had been lost by a tempest, he
would charge only part of the price ; and that he had always been
ready to pay this part of the price. The whole court decided in
favour of the plaintiff, " because there is here not any consideration
set forth in the bar, by reason whereof the plaintiff should dis-
charge the defendant of this matter, for no profit but damage
comes to the plaintiff by this agreement, and the defendant is not
put to any labour or charge by it, therefore here is not any agree-
ment to bind the plaintiff." This decision was followed by cases
decided in 1591,2 and 1597.3 In the latter of these cases it was
held that the payment of the same sum as that which the plaintiff
was liable to pay, was no consideration for a further promise by
the defendant.
It follows, therefore, that whether we regard the rule as a rule
relating to the acts which will operate as a discharge, or whether
we regard it as a rule regulating the validity of a contract to dis-
charge the party liable, the same result is produced. The
payment of the whole or a part will operate neither as a discharge,
nor will it be a consideration for an agreement to discharge.
So far the law is clear. The payment of the whole or part of
the sum due cannot be consideration for a further promise, because
such payment is no detriment to the promisee. But in the
sixteenth and seventeenth centuries the law was not finally settled
on these lines. There is another line of cases in which the judges,
looking rather at the benefit derived by the promisor in getting
speedy payment or payment without action, held such payment to
be a valid consideration for a promise to release the debt. They
held therefore that, though as decided in PinnePs Case,6 payment
of a lesser sum was no satisfaction of a greater, yet the payment
of such lesser sum might be a valid consideration for a promise to
give a release, or to do some other act. Thus in 1 595, in the case
of Reynolds v. Pinhowe? the defendant had recovered .£5 from the
1 1 Leo. 19 ; cp. Street, op. cit. ii 98-99.
2 Greenleaf v. Barker, Cro. Eliza. 193.
3 Dixon v. Adams, Cro. Eliza. 538.
5 5 Co. Rep. 117a. 5Cro. Eliza. 429.
22 CONTRACT AND QUASI-CONTRACT
plaintiff. In consideration of £4 paid to him by the plaintiff, the
defendant promised to acknowledge satisfaction of the judgment.
The court held the contract valid, " for it is a benefit unto him to
have it without suit or charge." The same view was put forward
by Coke, C.J., in 161 7, in the case of Bagge v. Slade.1 "If," he
said, "a man be bound to another by a bill in £1,000 and he pays
unto him £500 in discharge of this bill, the which he accepts of
accordingly, and doth upon this assume and promise to deliver up
unto him his said bill of £1,000, this £500 is no satisfaction of
the £1,000, but yet this is good and sufficient to make a good
promise, and upon a good consideration, because he hath paid
money — £500 — and he hath no remedy for this again." Possibly
Coke may have considered that the payment was a consideration
because, if such payment could have been resisted, it was a detri-
ment to the promisee ; but I think that his dominant idea was
that the payee has got the money, and that this benefit to him
should be a consideration — as he said elsewhere in the same case,
" I have never seen it otherwise, but when one draws money from
another, that this should be good consideration to raise a promise."
There are other cases decided in the seventeenth century in which
the same reasoning was used ; 2 and we shall see that it was not
till the beginning of the nineteenth century, that it was finally
settled that the payment by a debtor to his creditor of a part of a
sum due, cannot be a consideration for a promise by the creditor.3
(b) As soon as it was recognized that a promise given for a
promise was a valid consideration,4 it is difficult to resist the
conclusion that a promise by a debtor to pay part of a debt to his
creditor, ought to be a consideration for a promise by the creditor
to release him. This view seems to have been taken in the earlier
half of the seventeenth century. In 1602, in the case of Goring
v. Goring,5 an agreement by an executor to discharge a debtor of
his testator who owed £205, in consideration of a promise by the
debtor to pay £150 in instalments, though admitted to be no
valid satisfaction, was held to be a valid agreement, as it was
promise against promise.6 Similarly Comyns states that "an
accord with mutual promises to perform is good, though the thing
J3 Bulstr. 162.
2 Flight v. Crasden (1625) Cro. Car. 8 (payment of the whole) ; Johnson v. Astell
(1667) 1 Lev. 198 (payment of less) ; Anon. (1675) 1 Ventris 258 (payment of the
whole) ; and see other cases cited by Ames, op. cit. 331-332.
8 Below 40. 4 Vol. iii 445. 8 Yelv. n.
6 " And (per Curiam) the consideration alleged is sufficient for another reason;
for although the plaintiff has not shown that he has discharged the defendant of the
£205, yet if the defendant should afterwards be charged with it, he might have
assumpsit against the plaintiff; for the plaintiff agreeing to take £150 for £205 is a
promise on his part, and so one promise against another," ibid ; cp. Ames, op. cit.
348.
IN XVITH AND XVIITH CENTURIES 23
be not performed at the time of action ; for the party has a remedy
to compel the performance"1 We shall see that it was not till
the following century, that, not without some conflict of opinion,
it came to be thought that promises of this kind, though mutual,
were inoperative to operate as a satisfaction of the original debt ; 2
and that the view that in this case the mutual promises are not
considerations for each other, derives its strength from cases in
which the judges had failed to adapt the old rules as to accord
and satisfaction, to the new situation created by the rise of the
wholly executory contract3 But we shall see that there is
authority to the contrary, and that the law on this point is not yet
wholly settled.4
(iii) A somewhat analogous problem to that last discussed
arises, when a promise is made by a third person that he will do
something for one of the parties to a subsisting valid contract, if
that party will perform or promise to perform his duty under the
contract5 Such contracts are of course of comparatively rare
occurrence ; but, during this period, at least two cases arose in
which the problem was discussed. Both were cases in which the
consideration for the promise by the third person was, not the
actual performance by the party to the contract of his duty under
that contract, but a counter promise by that party to perform his
duty.6 In 1600, in the case of Sherwood v. Woodward? the
plaintiff sold cheeses to the defendant's son. The defendant, "in
consideration the plaintiff would deliver the said cheeses to his
said son, assumed, that if the son did not pay for them then he
would." The son did not pay, and the plaintiff sued on this
promise. In arrest of judgment it was moved "that this was not
any consideration ; for it is no more than what the law appoints
to deliver that which he sold." The court over-ruled this objection
and held the consideration valid. In the case of Bagge v. Slade?
"two men were bound in a bond for the debt of a third man ; the
obligation being forfeited, so that they both of them were liable
to pay this ; the plaintiff here in this writ of error said to the
other, pay you all the debt, and I will pay you the moyety of this
again, the which he paid accordingly, and so made his request to
have a repayment made to him of the moyety according to his
promise, which to do he refused." Thereupon the plaintiff sued
for the moiety, and judgment was given for him.
1 Digest Accord B 4. s Below 40-41, 83-85.
» Below 83-85. * Below 85.
5 On this topic there has been much discussion ; see'Ames, op. cit. 327-329, 340-
34S; Wiliiston H.L.R.viii 27-38; Langdell, H.L.R/xiv 496-508 ; Pollock, Contracts
(9th ed.) 197-202, and L.Q.R. xvii 419-422; Street, op. cit.^116-120.
6 But Ames, op. cit. 327, takes the view that in Bagge v. Slade 3 Bulstr. 162, the
consideration was the performance; for the reasons given below 24, I do not agree.
7 Cro Eliza. 700. 8 (1616) 3 Bulstr. 162,
24 CONTRACT AND QUASI-CONTRACT
Now it is reasonably clear that both these cases were cases of
promise for promise. It is clear, in the first case, that, when
promise was made, the cheese was not yet delivered ; and, in the
second case, that, when the promise was made, the money had
not yet been paid. For this reason no valid objection can be
taken to the actual decisions in these cases. A promise for a
promise was clearly a valid consideration — why should not a
promise to perform a legally enforceable duty already owed to a
third person be a good consideration for a counter promise ? We
shall see that, unlike the case of a promise by a debtor to pay a
sum less than the debt owed, in consideration of a counter promise
to give a release, no body of opinion excluding this particular sort
of promise has grown up.1
But in both these cases the court went a good deal further
than this. In both they were inclined to take the same view as
was taken in that line of cases in which it was held that a pay-
ment of part of a debt might be good consideration for a promise
to release the whole ; 2 for in both they assigned, as the reason for
their view that such payment was a valid consideration, the fact
that it was a benefit to the creditor to get the money. We have
seen that this view is indicated in Coke's remarks in the case of
Bagge v. Slade ; 3 and it is even more clearly apparent in the
remarks of Gawdy and Fenner, JJ., in the case of Sherwood v.
Woodward. "It is an ease," they said,4 "to the bargainee to
have them without suit, which peradventure otherwise he could
not have had. And although the bargainee may take them in
this case, the bargainor is not bound to deliver them ; and there is
a new act done by him upon this agreement, and it is an ease to
the vendee."
The development of these rules, during the sixteenth and
seventeenth centuries, shows that consideration was acquiring a
technical meaning in connection with the law of contract, and that
a doctrine of consideration was growing up. As assumpsit was
fast ousting all other remedies for the enforcement of contracts it
was only natural that the contents of that doctrine should be
shaped largely, and perhaps principally, by the exigencies of that
remedy. It tended to be a reflection of the conditions which a
plaintiff must satisfy before he could succeed in this action. But,
as the developments just described show, this was not the only
influence which has gone to the making of the doctrine. Ideas
derived from the quid pro quo, which must be proved in order to
succeed in an action of debt ; ideas derived from the very different
1 Below 41. a Above 21-22.
a Above 22. 4 Cro. Eliza. 700.
IN XVIIITH & EARLY XIXTH CENTS. 25
conception of consideration which was being developed by the
court of Chancery ; and doubts as to the invalidity of a past
consideration, caused jarfrely hy the fart thaf the past- rnn<;irWa.
tion of a precedent debt was the foundation of the action in
mdebijaBJ^assurnpsi^-aTT tended to import into the doctrine
oTconsideration elements, which led in practice to results very
different from those which flowed from the view that it was
simply the sum and substance of the conditions which a plaintiff
must satisfy, in order to succeed in an action of assumpsit. We
must not underrate the importance of these elements. We shall
now see that, during the eighteenth and early nineteenth centuries,
they came very near to ousting the ideas derived from the
conditions under which assumpsit lay ; and that it was not till the
second half of the nineteenth century that the latter set of ideas
prevailed, and that the doctrine was settled on its modern basis.
Consideration in the Eighteenth and Early Nineteenth Centuries
During this period the doctrine of consideration was developed
mainly on lines which ignored its historical connection with the
action of assumpsit. More and more emphasis was laid upon those
elements in the doctrine, and those ideas, which were derived from
other sources ; and thus it became possible for Lord Mansfield
and his fellow judges to put forward theories which almost, if not
quite, identified consideration with moral obligation. Thus the
doctrine of consideration was given a wholly new shape which
would, if it had become established as a part of the common law,
have fundamentally altered the whole theory of our law of contract.
At one time there was some likelihood that consideration would
become of merely evidentiary value ; and even when this possibility
had disappeared, it still remained extremely probable that its
identification with moral obligation would leave it as vague and
illusory a test of the validity of a contract as the continental
" cause." *
In this section I shall describe the technical lines upon which
this development proceeded and indicate its effects upon the
doctrine of consideration.
The earliest line of development started from the rule that, if
a debt was due, a promise to pay that debt would give rise to an
action in indebitatus assumpsit.2 This principle was applied to
cases where the debt was really due, but, for one reason or another,
it was not enforceable by action. As the debt was due, it was no
very violent departure from principle to rule that an express
1 Below 44. » Vol. iii 443-444.
26 CONTRACT AND QUASI-CONTRACT
promise by the debtor to pay it would remove the bar to the
enforcement of the debt. Thus it was held in 1697 that " when
the defendant under age borrowed money of the plaintiff, and
afterwards at full age promised to pay it, this is a good considera-
tion for the promise, and the defendant shall be charged." x On
similar principles, it was held in 1699 that a promise to pay a debt
barred by the statute of limitation made the debt enforceable by
action, and could be set up in answer to a plea of the statute ; 2
and the former ruling, that an infant could be sued on an express
promise made after he had come of age to pay a debt contracted
during infancy, was affirmed.3 A further development of the same
principle was made in 1777, in the case of Trueman v. Fenton*
when it was held that a promise by a bankrupt to pay a creditor,
who had accepted no dividend, was enforceable. The transaction
was regarded as the revival of the old debt, and, in this as in the
other cases, the old debt was considered to be a sufficient con-
sideration for the subsequent promise.5
So far there is an extension of, but no very violent departure
from, the older precedents which allowed that an existing debt was
a good consideration for a subsequent promise. But, when True-
man v. Fenton was decided, these cases were being made by Lord
Mansfield the foundation of a large generalization, which put their
ratio decidendi on the very different ground of moral obligation.
XTlrTe~5a-me— time, influenced by the new principles of mercantile
law which he was introducing into the common law, he was prepared
to assign to the doctrine of consideration a new and subordinate
position in the law of contract. Let us examine these two lines of
approach to the establishment of a wholly new theory of considera-
tion in English law.
(i) The idea of moral obligation.
It is clear from the judgment in Trueman v. Fenton, that Lord
Mansfield relied far more on broad equitable principles, than upon
the comparatively narrow common law doctrine that the existence
of a precedent debt is a good consideration for a promise to pay.
" The debts of a bankrupt," he said, " are due in conscience, not-
withstanding he has obtained his certificate ; and there is no honest
man who does not discharge them, if he afterwards has it in his power
to do so. Though all legal remedy may be gone the debts are
clearly not extinguished in conscience." 6 He used both the old
1 Ball v. Hesketh Comb. 381. 2Hyleing v. Hastings i Ld. Raym. 38^.
3 Ibid. * 2 Cowper 544.
5" Then the case of Barnardiston v. Coupland in C.B. is in point. Lord Chief
Justice Willes there says ' that the revival of an old debt is a sufficient consideration.'
That determines the whole case," per Lord Mansfield, C.J., ibid at p. 549,
6 Ibid p. 548.
IN XVIIITH & EARLY XIXTH CENTS. 27
cases, which showed that a debt barred by the statute of limitation
and a debt irrecoverable by reason of infancy, were considerations
for a promise to pay, and the analogy of equitable doctrines, to
show that the courts had recognized such a conscientious obliga-
tion.1 And, though he based his judgment to some extent upon
the common law decisions, he relied far more on a case decided by
lord chancellor Parker,2 in which the right of a creditor to recover
on a bond given by a bankrupt had been put wholly on the ground
of conscience.3 This reliance on equitable decisions was the more
attractive in that equity had, as we have seen, a doctrine of con-
sideration very different from that of the common law.4 But the
rules as to what amounted in equity to consideration necessarily
shared the vagueness of many of the principles of equity, and, like
those principles, still retained many traces of notions derived from
abstract morality or natural reason ; 5 and thus it happened that
Lord Mansfield's bias in favour of introducing equitable principles
into the common law was eminently calculated to introduce
confusion into the common law doctrine of consideration, and,
ultimately, fundamental changes which would have altered the
whole of the common law theory of contract.
Lord Mansfield's appeals to moral and natural law were attrac-
tive to the minds of the lawyers of his day ; and so the idea that
a conscientious obligation could be a consideration for a promise
was speedily taken up. It would seem that it was argued unsuc-
cessfully in Rann v. Hughes* that the fact that an administratrix
had assets was sufficient consideration for a promise by her to pay
in her personal capacity, because she was liable in conscience. And,
though it was held on the facts of that case that there was no
consideration, Lord Mansfield distinguished Rann v. Hughes in
1 ** How far have the Courts of Equity gone upon these principles ? Where a
man devises his estate for payment of his debts, a Court of Equity says (and a Court
of Lav in a case properly before them would say the same), all debts barred by the
Statute of Limitations shall come in and share the benefit of the devise ; because they
are due in conscience : therefore though barred by law, they shall be held to be revived
and charged by the bequest. What was said in the argument relative to the reviving
a promise at law, so as to take it out of the Statute of Limitations, is very true. The
slightest acknowledgment has been held sufficient, . . . So in the case of the man who
after he comes of age promises to pay for goods or other things, which, during his
minority, one cannot say he has contracted for, because the 'aw disables him from
making any such contract ; but which he has been fairly and honestly supplied with/'
2 Cowper at p. 548.
2 Lewis v. Chase (1720) 1 P. Wms. 620.
3 The judgment begins as follows : " Here is an honest creditor, and the bankrupt
if he pay him all, still pays but what in conscience he ought " ; the decision in this
case was contrary to the spirit of many other cases, 1 P. Wms. 622 n. 1, and it was
over-ruled by Sumner v. Brady (1791) 1 H. Bl. 647.
4 Above 4-5 ; I shall deal with the later history of consideration in equity in the
following Book of this History ; see Roscoe Pound, Consideration in Equity, Wig-
more Celebration Essays 435 seqq.
5 Roscoe Pound, op. cit, 457-458. 6 (1778) 7 T.R. 350 n. a.
28 CONTRACT AND QUASI-CONTRACT
Hawkes v. Saunders1 (1782), on the ground that in the former
case the administratrix had no assets.2 In Hawkes v. Saunders he
followed his own earlier decision in Atkinsv. Hill'6 (1775), and held
that, if an executor had assets and promised to pay a legacy,
assumpsit would lie. in so deciding he based his judgment on the
broad ground that any moral obligation was a sufficient considera-
tion. "Where a man is under a legal or equitable obligation to
pay, the law implies a promise, though none was ever actually
made. A fortiori a legal or equitable duty is a sufficient considera-
tion for an actual promise. Where a man is under a moral obligation
which no court of law or equity can enforce, and promises, the
honesty and rectitude of the thing is a consideration."4
It is true that in this judgment, in which the doctrine that
moral obligation amounts to consideration attained its most un-
qualified and complete recognition, we can see an echo of the
reasoning by which the decision in S/ade's Case5 was justified.
The existence of a debt imports a promise, and so assumpsit will
lie, even though there has been no express promise to pay. But
the reasoning appears here in a very different setting. It is based
wholly on equitable considerations ; and the only dictum which
really supported the actual decision was a dictum of Lord Hard-
wicke's, cited by Buller, J.,6 to the effect that the fact that assets
had come to an executor's hands was sufficient consideration for
a promise by him to pay a legacy. It is true that other cases were
cited ; but they bore out neither the broad propositions on which
the judgment was based, nor the decision itself. Thus it is clear
that a decision that the indebtedness of a testator was a considera-
tion for a promise by the executor to pay the creditor,7 is no
authority for the proposition that the possession of assets is a con-
sideration for a promise to pay a legacy, for the element of pre-
cedent debt is wholly wanting. Nor was it much to the point to
cite a case in which it was held that the abandonment of a right,
enforceable in equity, was a good consideration.8 The fact that
such cases could be cited and such arguments used, taken in con-
nection with the fact that other older cases, which pointed in a very
different direction, were not cited,9 show that on the slender basis
1 1 Cowper 289.
2 " It is not like the case of Rann v. Hughes ; Tor there there were no assets, nor
any averment of assets stated in the declaration. But in this case there was a full
fund ; and therefore she was bound in law justice and conscience to pay the plaintiff
his legacy," ibid at p. 291.
3 Ibid 284. 4 Ibid at p. 290.
5 (1603) 4 Co. Rep. 92a ; vol. iii 445-446.
6 Reech v. Kennegal (1748) 1 Ves. Sen. at p. 126.
7 Trewinian v. Howell (1588) Cro. Eliza. 91, cited by Buller, J., 1 Cowper at
p. 293.
8 Wells v. Wells (1669) 1 Ventris 40, cited by Buller, J., 1 Cowper at p. 233.
9 Above 11, 14-15, 18 ; below 37-38.
IN XVIIITH & EARLY XIXTH CENTS. 29
of earlier cases which allowed that a precedent debt, though unen-
forceable, was consideration for a promise, a wholly new theory
of consideration was being created. It is not surprising, therefore
to find that any past decisions, which could give any sort of support
to this new theory, should have gained the approval of Lord
Mansfield and his colleagues. Thus in the case of Martyn v.
Hind1 he expressed surprise that anyone could have doubted the
correctness of the decision in Dutlon v. Poole ; - and in another
case he was said by Buller, J., to have expressed the opinion that
an agreement by a creditor to discharge his debtor, in consideration
of receiving a smaller sum, was valid.3
(ii) The influence of mercantile law.
Lord Mansfield's achievements in the field of commercial law
were remarkable ; and they were due largely to the fact that he
was widely read in other systems of law than the common law.
But he had the defects of his qualities. He was not so widely or
accurately read in the technical doctrines and technical history of
the common law, as other lawyers far inferior to him in breadth of
intellect ; and, for this reason, in his desire to import reasonable
principles into the common law, he was sometimes led to lay down
rules which were demonstrably not rules of English law. I have
already had occasion to notice this failing in some of his decisions
on points connected with the land law.4 We shall now see that,
in his desire to construct a body of mercantile law on principles
which would be satisfactory to the world of commerce, he was led
to propound a wholly heterodox view as to the position of the
doctrine of consideration in the law of contract.
In 1765, in the case of Pillans v. Van Mierop? he laid down
the undoubted principle that " the law of merchants and the law
of the land is the same." 6 He then proceeded to lay down the
much more doubtful principle that " a nudum pactum does not
exist in the usage and law of merchants." " But, if both proposi-
tions were true, a nudum pactum could not exist in the law of
the land. This however was obviously untrue, for an agreement
made without consideration was nudum pactum, unless it was
made in writing and under seal. In order to reconcile the
existence of this rule of law with his own theory, he propounded
the view that consideration was only of evidentiary value ; and
1 (1776) 2 Covvper at p. 443. a For this case see above 12.
* *• Whether an agreement by parol to accept a smaller sum in satisfaction of a
larger can be pleaded or not, I do not know ; it was formerly considered that it could
not, and was so decided in Coke. I think however that there are some late cases to
the contrary, and one in particular in Lord Mansfield's time, who said, that if a party
chose to take a smaller sum, why should he not do it ? " Stock v. Mawson (1798) 1 B.
and P. at p. 290.
4 Vol. vii 19-20, 43-46. 5 3 Burr. 1663. 6 Ibid at p. 1669. " Ibid.
30 CONTRACT AND QUASI-CONTRACT
that therefore, if an agreement were in writing, whether under
seal or not, consideration was not needed. " I take it that the
ancient notion about want of consideration was for the sake of
evidence only ; for when it is reduced into writing, as in covenants
specialties bonds etc., there was no objection to the want of
consideration. And the Statute of Frauds proceeded upon the
same principle." x But as mercantile contracts are almost in-
variably in writing, it followed that " in commercial cases amongst
merchants the want of consideration is not an objection." 2
This heretical doctrine was very shortly afterwards over-ruled
in the case of Rami v. Hughes (1778).3 The judges, on being
consulted by the House of Lords, laid it down that "the law of
this country supplies no means nor affords any remedy to compel
the performance of an agreement made without sufficient considera-
tion ; such agreement is nudum pactum ex quo non oritur actio ;
and whatsoever may be the sense of this maxim in the civil law,
it is in the last mentioned sense only that it is to be understood
in our law." Hence it followed that, " all contracts are, by the
laws of England, distinguished into agreements by specialty and
agreements by parol ; nor is there any such third class ... as
contracts in writing."
But, though Lord Mansfield's attempt to make consideration
merely one of several kinds of evidence, by which the existence
of a contract could be proved, failed, his view that a merely moral
obligation was a sufficient consideration grew and flourished. It
is true that in 1794, in the case of Deeks v. Struttf Lord Kenyon,
C.J., in effect overruled the actual decisions in Hawkes v. Saunders
and Atkins v. Hill, and held that no action at law could be main-
tained for a legacy.5 But this decision was treated as proceeding
on the ground that the matter was not subject to the cognisance
of a common law court, and not as in any way infringing the
principles laid down as to the sufficiency of a moral obligation to
support a promise.6 We shall now see that, though a reaction
against this view had begun to set in in the second quarter of the
1 3 Burr, at p. 1669. 2 ibid.
s 7 T.R. 350 n. a. * 5 T.R. 690.
5 It was pointed out that the only precedent for allowing such an action was one
in the time of the Commonwealth ; and that to allow individual legatees to sue would
in effect overthrow the equitable rules for the administration of assets, and work grave
injustice; thus, "if an action will lie for a legacy, no terms can be imposed on the
party who is entitled to recover, and therefore when the legacy is given to a wife, the
husband would recover at law, and no provision could be made for the wife or family :
whereas a court of Equity will take care to make some provision for the wife in such a
case," ibid at p. 692 per Lord Kenyon, C.J.
6 " The overturning of these decisions . . . went on the ground that the ecclesias-
tical court was the only legal place where to sue for a legacy . . . but the decision in
Deeks v. Strutt had nothing to do with the general ground of conscience," Barnes v.
Hedley (1809) 2 Taunt, at p. 191 per Mansfield, C.J.
IN XVIIITH & EARLY XIXTH CENTS. 31
nineteenth century, it was, until then, almost an accepted doctrine.
In fact, so deeply did it leave its marks on English law, that
traces of it can be found even as late as the second half of that
century.1
It is possible to trace two lines of decisions in which this
doctrine made its influence felt.
(i) We have seen that it was well established that a precedent
debt, though unenforceable by reason of the expiration of the
period fixed by the statute of limitation, or infancy, or a discharge
in bankruptcy, was a valid consideration for a subsequent promise.2
We have seen, too, that these decisions were no very violent
departure from the principle that a precedent debt was a good
consideration for a promise to pay, which could be enforced by
indebitatus assumpsit ; for in all these cases there was a debt
existing, though it was not enforceable by action.3 But these
decisions were extended to cover the case where, by reason of a
statutory enactment or of common law rules, the contract was
wholly void, so that there was no debt in existence. Thus in
1 809, in the case of Barnes v. Hedley? it was held that a promise
to pay the principal and legal interest could be founded on a
precedent loan, which was void by reason of the infringement of
the usury laws; and as late as 1863 this decision was followed,
in spite of the vigorous dissent of Martin, B., in the case of Flight
v. Reed} So too in 18 13, in the case of Lee v. Muggeridge* a
debt created by a bond, which was void because it was given by
a married woman, was allowed to be a sufficient consideration for
a promise by her to pay the debt after her husband's death. In
that case precedents were cited, which proved the somewhat
obvious proposition that a void debt could not possibly be a
consideration for a promise.7 But they were distinguished on
the ground that, in those cases a void consideration had been
pleaded, and that they might have been decided differently if the
real consideration — the moral obligation — had been stated.8 The
court then laid it down that, " it has long been established that
where a person is bound morally and conscientiously to pay a
debt, though not legally bound, a subsequent promise to pay will
1 See Flight v. Reed (1863) 1 H. and C. 703 ; below 33.
8 Above 26. 3 Vol. iii 442-444 ; above 26. * 2 Taunt 184.
5 1 H. and C. 703 ; Martin, BM said at p. 711, '* I cannot understand how an utterly
void and illegal contract or transaction can be a legal consideration for a new contract."
8 5 Taunt, 36.
7 Barber v. Fox (1670) 2 Wms. Saunders 136; Lloyd v. Lee (1718) 1 Stra. 94.
8 " As to the cases of Lloyd v. Lee and Barber v. Fox they have been sufficiently
answered by my Lord and my brother Chambre, that if a man will state on his
declaration a consideration which is no consideration, and shews no other consideration
on his declaration, although another good consideration may exist, when that which
he does shew fails he cannot succeed upon the proof of the other which he has not
alleged," 5 Taunt, at p. 48 per Gibbs, J.
32 CONTRACT AND QUASI-CONTRACT
give a right of action." 1 It is clear that no proposition less wide
would have sufficed to decide the case in favour of the plaintiff.
(ii) We have seen that it was well established that, if an act
had been done at the request of the defendant, this act was a valid
consideration for a promise by him to pay for it.2 But we have
also seen that this rule was coming to be regarded as resting, not
on the ground put forward in some of the earlier cases, that the
act is in these circumstances an executed consideration for the
promise, but on the ground that in such a case the law admitted
of an exception to the rule that consideration cannot be past.3 In
the case of Pillans v. Van Mierop Wilmot, J., was prepared to give
a very wide extension to this exception.4 It is therefore not sur-
prising to find that, during this period, the rule, established in this
form, was extended in a manner somewhat analogous to the manner
in which the rule that a precedent debt was a valid consideration
had been extended. Just as the rule that a precedent debt was a
valid consideration for a subsequent promise to pay, was extended
to a precedent debt, which for one reason or another was unenforce-
able by action ; 5 so the rule that a past act done at the request of
the promisor was a valid consideration for a promise to pay, was
extended to the case where a person, without a previous request,
voluntarily did what another was legally liable to do, and that
other in consideration thereof made a promise. No doubt this
extension could be justified on the ground that, under these circum-
stances, the act so done could be taken as executed consideration
for the subsequent promise. This was in substance the explana-
tion given by Selwyn ; 6 and, as thus explained, it is in accord with
the principles of the modern law.7 But both the original rule and
its extension, if regarded as exceptions to the rule that a past con-
sideration is not valid, can easily be justified by the theory that a
moral obligation is a valid consideration ; for, if a past act is
1 5 Taunt, at p. 46 per Mansfield, C.J.
2 Above 14-15. 3 Above 16.
4,1 It is now settled, ' that when the act is done at the request of the person
promising, it will be a sufficient foundation to graft the promise upon.' In another
instance the strictness has been relaxed ; as for instance, burying a son, or curing a
son ; the considerations were both past ; and yet holden good. It has been melting
down into common sense of late times," 3 Burr, at pp. 1671-1672.
8 Above 26.
6 "The defendants, being bound by law to provide for the poor of the parish,
derived a benefit from the act of the plaintiff who afforded that assistance to the
pauper which it was the duty of the defendants to have provided : this was the con-
sideration, and the subsequent promise by the defendants to pay for such assistance
was evidence from which it might be inferred that the consideration was performed
by the plaintiff with the consent of the defendants, and consequently sufficient to sup-
port a general indebitatus assumpsit for work and labour performed by the plaintiff
for the defendants, at their request," Selwyn, Nisi Prius i 51 n. 11, cited Anson,
Contracts (oth ed.) 107.
7 Below 38-39.
IN XVIIITH & EARLY XIXTH CENTS. 33
accepted as a valid consideration for a subsequent promise, it is
almost tantamount to asserting that a mere motive or feeling of
moral obligation is a sufficient consideration. And so we find
that, in the cases in which this extension was made, moral obliga-
tion occupies a prominent place.
The facts of all these cases were very similar, as they all turned
on the liability of a parish, in which a pauper was settled, to main-
tain him. In the case of Atkins v. Banwell1 the guardians of the
parish where a pauper was resident, having expended money on
his relief, sued the guardians of the parish where he was settled,
to recover the amount so expended. It was held that the action
failed, because the defendants had made no express promise to
pay. But Lord Ellenborough, C.J., held that, if there had been
an express promise, the plaintiffs would have succeeded because
"a moral obligation is a good consideration for an express pro-
mise " ; 2 and he gave effect to this view in the subsequent case of
Wing v. Mill} In the later case of Paynter v. Williams 4 the
plaintiffs, who had given relief, recovered against the parish where
the pauper was settled, but on the ground that the officers of the
parish of settlement had requested the relief to be furnished, so
that it was a case of an act done at the request of the defendant5
Necessarily moral obligation played some part in the argument ; 6
but not much reliance was placed on it by either side ; and we
shall see that in 1833 — the date when that case was decided — the
view that moral obligation was always a good consideration was
beginning to decline." But, even after the theory had ceased to
be held in the large sense given to it by Lord Mansfield and by
Mansfield, C.J., traces of it lingered on in the language used by
distinguished judges. We have seen that as late as 1863 it in-
spired the decision of the court in Flight v. Reed ; 8 and traces of
its influence can be seen in the language of judgments delivered
by Parke, B., in 18439 and 1848.10
1 (1802) 2 East 505. * 2 East at p. 506. i
s (1817) i B. and Aid. 104 — Lord Ellenborough, C.J., said, " in this case both
the legal and moral obligation obtain. The parish of Willoughby have by their
weekly allowance admitted that they were bound to provide for the pauper ; and the
defendant, one of the overseers, after the pauper's death, expressly desires the plain-
tiff to send his bill made out to the overseers, and promises that he shall be paid."
4 (1833) 1 C. and If. 810. 5 Ibid at pp. 818-819 per Lord Lyndhurst, C.B.
* Ibid at pp. 811-818. 1 Below 37.
•iH. and C. 703 ; above 31.
• " The principle on which the law allows a party, who has attained his age of
twenty-one years, to give validity to contracts entered into during his infancy, is that
he is supposed to have acquired the power of deciding for himself, whether the trans-
action in question is one of a meritorious character, by which in good conscience he
ought to be bound," Williams v. Moor (1843) n M. and W. at pp. 264-265, and see
the passage cited below 40 n. 1.
M " The principle of the rule laid down by Lord Mansfield is, that when the con-
sideration was originally beneficial to the party' promising, yet if he be protected from
VOL. VIII.— 3
34 CONTRACT AND QUASI-CONTRACT
It is quite clear that if these eighteenth-century developments
of legal doctrine had been received into the common law, the
doctrine of consideration would not hold the place which it holds
to-day in the English law of contract. If Lord Mansfield's view
that consideration had a merely evidentiary value had prevailed,
it would have become simply one of several ways of proving the
existence of a contract, it would have lost all connection with its
historical origin in the procedural necessities of assumpsit, and it
would probably have disappeared before now as a substantive
body of doctrine. The acceptance of this view would, as Sir F.
Pollock has said, have changed the whole modern development of
the English law of contract, "and its principles might have been
(with only minute theoretical differences) assimilated to those of
the law of Scotland."1 Nor would the result have been very
different if the theory of the identification of moral obligation and
consideration in its extreme form had been accepted. In that case
the English theory would have become something very similar to
the continental theory, which regards mere moral obligation, or the
intention to confer a benefit, as a sufficient "cause." We shall see
that this " cause " has consequently become so uncertain a test for
distinguishing between a pact and a contract, that in the opinion
of many it is wholly useless.2 And this is only natural ; for, as
Lord Denman, C. J., pointed out in the case of Eastwood v. Kenyon,
the doctrine that moral obligation was a sufficient consideration,
"would annihilate the necessity for any consideration at all, inas-
much as the mere fact of giving a promise creates a moral obliga-
tion to perform it." 3
But, as we shall now see, these ideas were decisively rejected
in the nineteenth century, the procedural origin of the doctrine
of consideration was recalled, and the modern law was settled on
this basis.
The Settlement of the Modern Doctrine
The causes which brought about the rejection of theories,
which seemed to have acquired so much authority in the
eighteenth century, must be sought ultimately in weight of
liability by some provision of the statute or common law, meant for his advantage, he
may renounce the benefit of that law ; and if he promises to pay the debt, which is
only what an honest man ought to do, he is then bound by the law to perform it,"
Earle v. Oliver (1848) 2 Ex. at p. 90.
1" If it had occurred a century or two earlier to a judge of anything like Lord
Mansfield's authority, the whole modern development of the English law of contract
might have been changed, and its principles might have been (with only minute
theoretical differences) assimilated to those of the law of Scotland," Contracts (9th
ed.) 191 ; the only criticism that can be made of this dictum is that it probably could
not have occurred to any judge " a century or two earlier," as the procedural origin of
consideration was then too well recognized.
8 Below 44. 3(i84o) 11 Ad. and^E. at p. 450.
SETTLEMENT OF MODERN DOCTRINE 35
earlier precedents, which came from a period when the origin of
consideration, in the procedural necessities of assumpsit and to
some extent of debt, was almost too obvious to require state-
ment. We must therefore examine the manner in which these
precedents were used to prove that consideration was something
very much more than mere evidence, and more than motive or
moral obligation.
It was the view expressed by Lord Mansfield in Pillans v.
Van Mierop} that consideration was merely evidence of the
existence of the contract, that was the first to be rejected. It
was, as we have seen, rejected in the case of Rann v. Hughes'1
only thirteen years later, so that it had no time to gather weight
by the approval express or tacit of later judges. That it was so
speedily rejected is, in my opinion, an indirect and undesigned
consequence of § 4 of the statute of Frauds. The case of Rann
v. Hughes was an action on a promise by an administratrix to
pay out of her own estate.3 It was urged that, as the statute had
required such promises to be in writing, they did not require
consideration to support them. But it was clear enough, both
from the words of the statute and from the manner in which it
had been interpreted, that non-observance of the provisions of
the statute rendered the contract, not void, but unenforceable by
action.4 If this had not been so, it would have been impossible
for equity to have originated the equitable doctrine of part
performance, the beginnings of which we can see in the time of
Lord North,5 who had helped to draft the statute ; 6 nor would it
have been possible for a contract to be proved by means of a
written memorandum drawn up after the agreement had been
made.7 It was the better opinion, therefore, that writing affected,
not the validity, but the enforceability of the contract. 8 It followed
1 (J765) 3 Burr- at p. 1669 ; above 29-30. 2(i778) 7 T.R. 350 n. a.
3 It is not even certain that the promise was in that case in writing — " It is said
that if this promise is in writing that takes away the necessity of a consideration,
and obviates the objection of nudum pactum, for that cannot be where the promise
is put in writing : and that after verdict, if it were necessary to support the
promise that it should be in writing, it will after verdict be presumed that it was in
writing; and this last is certainly true," 7 T.R. 350 n. a.
* " It was said by the Attorney-General, that since the statute of Frauds, if an
agreement be made and reduced into writing, and signed but not sealed, that this is
still but a parol agreement, and the writing is only evidence of it," Marquis of
Normanby v. Duke of Devonshire (1697) Free. Ch. at p. 217.
5 Hollis v. Edwards (1683) 1 Vern. 159 ; Butcher v. Stapely (1685) 1 Vera.
363 ; vol. vi 658-659.
8 Vol. vi 380-384.
7 Smith v. Watson (1719) Bunbury 55 ; cp. Welford v. Beazely (1747) 3 Atk.
5<M-
8 Pollock, Contracts (9th ed.) 699-701 ; the discussion in Leroux v. Brown
(1852) 12 C.B. 801, in which the rule was finally decided, was confused by refer-
ences to the question cf the effect of § 17 of the statute ; that section was differently
worded, and no final decision was reached as to its effect, vol. vi 386 n. 4.
36 CONTRACT AND QUASI-CONTRACT
that, if consideration was needed for the validity of all contracts
not under seal, it must be necessary for contracts required to be
in writing by the statute of Frauds. But for the fact that the
contract then before the court was one which fell within the fourth
section of the statute, and but for the fact that the statute affected
only the enforceability of such contracts, it may well be doubted
whether Lord Mansfield's opinion, which is not in itself unreason-
able, would have been so speedily and decisively overruled. If
it had not been speedily overruled, and if it had been combined
with the doctrine that moral obligation was equivalent to con-
sideration, very little would, as we have seen, have been left of
the doctrine of consideration.
Though the case of Rann v. Hughes did not allude to the
doctrine of moral obligation, though, as we have seen, that
doctrine continued to flourish for many years after that decision,1
the opening words of the judgment impliedly condemn the wide
meaning afterwards given to it by Mansfield, C.J. " It is un-
doubtedly true," said Skynner, C.B., in the name of the judges,2
"that every man is by the law of nature bound to fulfil his
engagements. It is equally true that the law of this country
supplies no means, nor affords any remedy, to compel the per-
formance of an agreement made without sufficient consideration."
There were many lawyers who saw clearly enough that the large
efficacy attributed to moral obligation could not be supported.
Coke's doctrine that consideration "must be either an immediate
benefit to the party promising or a loss to the person to whom the
promise was made," 3 was still put forward in argument. And,
though this doctrine was then denounced as too narrow,4 it still
had life in it. In 1802 the reporters Bosanquet and Puller
appended to their report of the case of Wennall v. Adney a
learned note, which showed that the doctrine that moral obligation
was a sufficient consideration to support a promise, was inconsistent
with the earlier authorities, and was unnecessary for the decision
of most of the cases usually cited for it.5 They maintained that
"if a contract between two persons be void, and not merely
voidable, no subsequent express promise will operate to charge
the party promising, even though he has derived the benefit of
the contract"; though they admitted that, "according to the com-
1 Above 30-31. 2 7 T.R. 350 n. a.
3 Stone v. Wythipol (1588) Cro. Eliza, at p. 126, cited above 10 and n. 8.
* " The rule laid down at the Bar, as to what is or is not a good consideration
in law, goes upon a very narrow ground indeed ; namely, that to make a considera-
tion to support an assumpsit, there must be either an immediate benefit to the party
promising, or a loss to the person to whom the promise was made. I cannot agree
to that being the only ground of consideration sufficient to raise an assumpsit,"
Hawkes v. Saunders (1782) 1 Cowper at p. 290 per Lord Mansfield, C.J.
5 3 B. and P. 249.
SETTLEMENT OF MODERN DOCTRINE 37
monly received notion respecting moral obligations, and the force at-
tributed to a subsequent express promise, such a person ought to
pay." They maintained that " an express promise can only revive
a precedent good consideration, which might have been enforced
at law through the medium of an implied promise, had it not been
suspended by a positive rule of law, but can give no original right
of action, if the obligation on which it is founded never could have
been enforced at law." In other words, a precedent debt, as
decided in Slack's Case} is a valid consideration on which indebi-
tatus assumpsit will lie, either by reason of a subsequent express
promise, or, if no subsequent promise has been made, by reason
of the promise implied from the debt; and a precedent debt,
though voidable or unenforceable by action, is a good consideration
for a subsequent express promise to pay. But a precedent void
obligation, because it is void, cannot be a consideration, whatever
be the moral obligation which arises from its creation.
That this note had much to do with the change of opinion on
this subject, which took place in the latter part of the nineteenth
century, is clear from the use made of it in later cases. It was
used in argument in the case of Paynter v. Williams}' it was
approved by Parke, B., in Earle v. Oliver} and it was cited, though
it was misapplied by Pollock, C.B., and Wilde, B., in Flight v.
Reed} More important than all, it was approved by Denman, C. J.,
in the case of Eastwood v. Kenyon* — the case which gave the
death blow to the theory that moral obligation could be regarded
as a valid consideration. Lord Denman's opinions upon this
question had progressed. In 18386 he had contented himself
with following in substance a decision of Lord Tenterden's in 1 83 1,7
and holding that the plaintiff failed, because, if there was a moral
obligation, it had not been sufficiently set forth in the declaration.
But in Eastwood v. Kenyon he stated clearly that moral obligation
could never be a consideration ; and it is clear that the decision
was mainly grounded, as the note to Wennall v. Adney was
grounded, upon the "old common law of England," contained in
such cases as Hunt v. Bate, Townsend v. Hunt, "and indeed in
1 (1603) 4 Co. Rep, 92a. 3 (1833) 1 C. and M. at p. 816.
3(i84fc) 2 Ex. at p. 90. 4(i863) i H. and C. at p. 716.
5 (1840) 11 Ad. and E. at p. 447.
8 Meyer v. Haworth 8 Ad. and E. 467 ; at p. 469 Lord Denman, C.J., said, " the
record states that the goods were supplied to a married woman, who, after her
husband's death, promised to pay. That is not sufficient. The debt was never owing
from her. If there was a moral obligation that should have been shown."
7Littlefield v. Shee 2 B. and Ad. 811 ; Lord Tenterden, C.J., observed at p. 812
that, in Lee v. Muggeridge, all the circumstances showing that the money "was in
conscience due" were set forth in the declaration ; but it should be noted that he felt
misgivings as to the extent of the doctrine — " the doctrine that a moral obligation is a
sufficient consideration for a subsequent promise is one which should be received with
some limitation."
38 CONTRACT AND QUASI-CONTRACT
numerous old books."1 "The principle," he said, "of moral
obligation does not make its appearance till the days of Lord
Mansfield, and then under circumstances not inconsistent with this
ancient doctrine when properly explained." From that time
onwards the doctrine of consideration has been developed for the
most part on strictly historical lines, and entirely in accordance
with those older sixteenth and seventeenth century precedents,
which regarded the term consideration as the compendious word
which summed up the conditions which a plaintiff must satisfy
before he could succeed in indebitatus or in special assumpsit.
Though this note to Wennall v. Adney had much to do with
producing this change of opinion, it is possible that it was partly
due to the new rules of pleading which were made in 1834. We
shall see that those rules prevented defendants from pleading the
general issue in assumpsit, and required them to plead specially.2
This change obviously tended to concentrate attention upon the
kind of pleas appropriate to the action, and to call increased
attention to the procedural basis of the doctrine of consideration.
However that may be, the fact of this change in the attitude of
the courts is undoubted. It is a change in attitude which is
analogous to that already noted in the view taken by them as to
the extent of the modification of the maxim actio personalis nioritur
cum persona recognized in the case of Phillips v. Homfray ;z and
as to the relations of the actions of trover and trespass de bonis
asportatis.4 As we shall now see, it has made our modern law.
Three consequences followed from the decision in Eastwood v.
Kenyon that a past consideration was no valid consideration, and
that moral obligation was not the same thing as consideration. In
the first place, it became possible to distinguish clearly between
motive and consideration. This distinction was stated in its final
form two years later in the case of Thomas v. Thomas? In the
second place, it became possible to get rid of the confusion caused
by the habit of regarding a consideration executed on request, as
an exception to the rule that a past consideration is invalid. In
truth, as had long ago been pointed out by Selwyn, in connection
with the cases turning on the liability of the poor law authorities,6
those cases could be treated more properly as cases of executed
consideration. It is clear, as we have seen from Lampleigh v.
1 11 Ad. and E. at p. 452 ; for the cases cited see above 14-15.
2 Vol. ix c. 7 § 2 ; Common Law Procedure Commission, First Report, Park
Papers (1831) xxii at pp. 590, 599 ; Cambridge Law Journal i 273-275.
3 Vol. iii 582. 4 Vol. vii 420-421.
6 (1842) 2 Q.B. 851; "motive is not the same thing with consideration. Con-
sideration means something which is of some value in the eye of the law moving from
the plaintiff," ibid at p. 859 per Patteson, J.
6 Above 32 n. 6.
SETTLEMENT OF MODERN DOCTRINE 39
Brathwait l and numerous other cases before and after that decision,2
that the validity of a consideration executed on request is not an
exception to the rule that a past consideration is invalid, but simply
a case of an executed consideration. This new point of view can
be seen gradually emerging in the decisions of the latter half of the
nineteenth century ; 3 and it received its clearest statement from
Bowen, L.J., in Stewart v. Casey*1 — "The fact of a past service
raises an implication that at the time it was rendered it was to be
paid for ; and, if it was a service which was to be paid for, when
you get in the subsequent document a promise to pay, that promise
may be treated either as an admission which evidences, or as a
positive bargain which fixes, the amount of that reasonable re-
muneration on the faith of which the service was originally
rendered." Thus most of the so-called exceptions to the rule that
consideration cannot be past disappear.5 It is true that the rule is
still recognized that a precedent debt, though barred by the statute
of limitation, is consideration for a promise to pay, or for an
acknowledgment from which a promise to pay can be inferred.
But it is not a consideration for a promise to do any other collateral
thing;6 for, as Lord Sumner has pointed out in his learned judg-
ment in the case of Spencer v. Hemmerde, the rule only applied to
actions of assumpsit for debts, and not to actions for other kinds
of damage.8 Thus, though the consideration is in this case past, it
is a legitimate extension of the rule that a precedent debt would
support an action of indebitatus assumpsit7 And this is the true
historical ground. But at the present day, when the procedural
origin of this anomalous rule has been forgotten, it is perhaps
better to base it, as Holt, C.J.,9 and Sir F. Pollock have based it,10
1 (1614) Hobart 105 ; above 15. a Above 14-16.
3Anson, Contracts (12th ed.) 114-116.
4 [1892] 1 Ch. at pp. 115- 116. It is unfortunate that Scrutton, L.J., in Evans v.
Heathcote [1918] 1 K.B. at pp. 435-436, persisted in the old error of regarding the
consideration in Lampleigh v. Brathwait as past, and even referred to the decision in
Flight v. Reed without positive disapproval.
5 Changes in statute law have changed the rules that the infant's promise, after he
has attained his majority, to pay a debt contracted during infancy, and the bankrupt's
promise after getting his discharge to pay a debt formerly owing by him, are valid,
Anson, Contracts (7th ed.) 102.
• " But it does not follow that, though a promise revives a debt in such cases, any
of those debts will be a sufficient consideration to support a promise to do a collateral
thing, as to supply goods, or perform work and labour ; and so indeed it was held in
this court in the case of Reeves v. Hearne (1 M. and W. 323). In such a case it is but
an accord unexecuted, and no action will he for not executing it," Earle v. Oliver (1848)
2 Ex. at p. 90.
7 Vol. iii 442-444 ; above 9.
8 [1922] 2 A.C. at p. 524 ; see L.Q.R. xxxix 146-148.
9 Heyling v. Hastings (1699) 1 Ld. Raym. at p. 421 ; in Tanner v. Smart (1827)
6 B. and C. at pp. 607-608 it was said that the pleadings were not calculated to raise
the question of waiver, and the point was passed over.
10 " It seems better at this day to say that the law of limitation does not belong to
substantive law at all, but is a special rule of procedure made in favour of the debtor,
who may waive its protection if he deliberately chooses to do so," Contracts (9th ed.)
193.
40 CONTRACT AND QUASI-CONTRACT
on the ground that the defendant has waived the benefit of the
statute.1 In the third place, this decision emphasized the rule
that consideration must move from the promisee, and so got rid of
cases like Dutton v. Poole? where the judges had evidently been
influenced by the equitable doctrine of consideration.3 That rule
had been strongly asserted in 1833, in the case of Price v. Easton ; 4
and in 1 861, in the case of Tweddle v. Atkinson, it was finally
held that " the modern cases had in effect overruled the old
decisions"; and that they "shewed that the consideration must
move from the party entitled to sue upon the contract." 5
It is by the application of the same principles that other
doubtful points in the law of consideration have been practically
settled. Thus the case of Foakes v. Beer6 settled that the payment
of a smaller sum by a debtor to a creditor, to whom a larger sum
is due, is not a valid consideration for a promise by the creditor to
release his debtor. In such a case, said Lord Selborne,7 " I can-
not say that I think that consideration is given in the sense in
which I have always understood that word as used in our law."
On somewhat similar grounds it may be doubted whether A's
performance of his contractual duty to B can be consideration for
a promise by C to A. Here A has only done what he was legally
bound to do, just as when he pays part of his debt to B. In
neither case is there any detriment to A, the promisee, which can
afford a consideration for a further promise.8
Whether or not a promise by a debtor A to pay less than his
debt to his creditor B, can be a consideration for a promise by B
to release him is more doubtful. There is much authority to show
that an accord to be operative must always be executed ; and, as
we have seen, actual performance of less than is due is not a con-
1 The rationale of the analogous case of a promise given by an infant, after attain-
ing his majority, was never clearly settled ; in Williams v. Moor (1843) 11 M. and W.
at p. 263, Parke, B., said that it might be treated, either " as an act giving validity to an
otherwise invalid contract, or as a new contract, voluntarily entered into after the party
has obtained the capacity of contracting, the consideration being the moral duty arising
from the previous transactions."
2 (1677) 2 Lev. 2ii. 3 Above 12. 44 B. and Ad. 433.
5 1 B. and S. 393. 6 (1884) g A.C. 605. 7 At p. 613.
8 " Andrew's performance of his binding promise to Peter does not appear capable
of being a consideration for a new promise by John to Andrew ; not because it cannot
be beneficial to John, for this it may very well be, but because in contemplation of law
the performance is no new detriment to Andrew, but on the contrary is beneficial to
him, inasmuch as it discharges him of an existing obligation. Therefore the necessary
element of detriment to the promisee is wanting. It seems therefore that if a promise
is given in exchange merely for the performance of the promisee's duty under an
existing contract with a third person, it is not binding," Pollock, Contracts (gth ed.)
198, L.Q.R. xvii 419-420; Sir F. Pollock adds, however, that " authority is the other
way so far as it goes," citing Bagge v. Slade, Scotson v. Pegg, and Shadwell v.
Shadwell ; but the first two cases may be perhaps regarded as cases where a promise
was given for a promise, above 23-24 below 41 ; and in the last case it may perhaps
be contended that the point did not arise, as the promisee did more than he was bound
to do under his contract, below 41.
SETTLEMENT OF MODERN DOCTRINE 41
sideration. On the other hand, the better opinion would seem
to be that a promise by A to C to perform his contractual
duty to B may be consideration for a promise by C to A. It is a
case of promise for promise ; and no exceptional rule, excluding
this particular kind of promise from the general rule that mutual
promises are a valid consideration for each other, can, as Sir F.
Pollock has pointed out, be produced.1 In this respect it differs
from a promise by a debtor to his creditor to pay a less sum than
his debt in consideration for a promise of discharge ; for there is, as
we shall see,2 some authority for saying that an exceptional rule
exists which prevents these promises from being consideration for
one another. In fact two cases — Shadwell v. Shadwell z and
Scotson v. Pegg* — are in favour of the validity of the former class
of contracts. But both of these cases call for some comment
The case of Shadwell v. Shadwell 'did not necessarily involve the
decision of this point In that case an uncle promised his nephew,
who was engaged to be married, that he would on his nephew's
marriage pay him ^150 a year. Obviously the nephew, though
bound to marry the lady at some time, was not bound to marry
her immediately. Relying on his uncle's promise he did what he
was not bound to do — he married her immediately. This, as Erie,
C.J., pointed out, was an ample consideration.5 The case of
Scotson v. Pegg did involve the determination of this point ; and
though Martin, B., and to some extend Wilde, B., based their judg-
ments on the erroneous view that "any act done whereby the
contracting party receives a benefit is a good consideration for a
promise by him,"6 the principle which we are discussing was
correctly stated by Wilde, B. " I accede," he said, "to the pro-
position that if a person contracts with another to do a certain
thing, he cannot make the performance of it a consideration for a
new promise to the same individual. But there is no authority for
the proposition that, where there has been a promise to one person
to do a certain thing, it is not possible to make a valid promise
to another to do the same thing." 7
1 Contracts (gth ed.) 200-201. 2 Below 83-85.
3(iS6o) 9 C.B.N.S. 159. 4(i86o) 6 H. and N. 295.
••' The plaintiff may have made a most material change in his position, and in-
duced the object of his affection to do the same, and may have incurred pecuniary
liabilities resulting in embarrassments, « hich would be in every sense a lo;s, if the
income which had been promised should be withheld ; and, if the promise was made
in order to induce the parties to marry, the promise so made would be in legal effect
a request to marry," 9 C.B.N.S. at p. 174.
• 6 H. and N. at p. 299 ; Wilde, B., said at p. 300, " but why is there no considera-
tion ? It is said because the plaintiffs in delivering the coals, are only performing
that which they were already bound to do. But to say that there is no consideration
is to say that it is not possible for one man to have an interest in the performance of a
contract made by another."
7 Ibid at pp. 300-301.
42 CONTRACT AND QUASI-CONTRACT
Thus the modern doctrine of consideration was settled on lines,
which are remarkable for the historical and logical correctness with
which they have been deduced from that procedural basis in the
action of assumpsit, from which the conception of consideration
originated. Whether the resulting law is wholly fit for the needs
of this twentieth century is another question, which I shall discuss
in the following section.
"Cause" and Consideration^
We have seen that the canon law, starting from the basis that
faith should be kept, had evolved a theory of contract based upon
a generalized conception of the Roman causa ; and that this
canonist conception of causa has been accepted and applied by
the chancellors in the exercise of the jurisdiction which, during
the Middle Ages, they were assuming over contract.2 This fact
comes out clearly enough in the Latin version of the Doctor and
Student;3 and that the Doctor and Student correctly represented
the facts may be said to have been proved by Barbour's essay on
the history of contract in early English equity.4 I have already
described the main characteristics of this conception of causa ;
and at this point it is only necessary to recall briefly its main
characteristics. They may be summed up, says Sir Paul Vino-
gradoff, under the following heads :5 "(i) The promise must be
intentional ; (2) it is subject to be taken back in consequence of a
material change of circumstances ; (3) it must have a reasonable
cause, which may consist either in a material equivalent or in moral
considerations ; (4) a liberal disposition is to be deemed a sufficient
cause in the case of gifts; (5) promises to moral persons, to
political learned or religious bodies, are legally valid if they are
made for the sake of their moral aims, e.g. for the honour of God,
the advancement of learning, assistance of the poor, and the like."
It is obvious that this canonist theory of causa made for an
extension of the sphere of the enforceable agreement, and a cor-
responding restriction of the sphere of the nude pact ; for if, as
seems probable, causa in the civil law means actionability,6 the
extended meaning given to the term by the canonists necessarily
had this effect. In the sixteenth and seventeenth centuries the
tendency towards this extension was assisted by two other causes.
1 On this subject see E. G. Lorenzen, Causa and Consideration in the Law of Con-
tracts, Yale Law Journal xxviii 621 ; and a paper by F. P. Walton, L.Q.R. xli 306.
2 Vol. v 294-296. 3 L.Q.R. xxiv 381-384 ; vol. v. 267.
4 Ibid 263, 294. 5 L.Q.R. xxiv 382 ; cp. vol. iii 412 ; vol. v. 294-295.
6 " With the Romans an agreement was not actionable unless there was some
reason why it should be so. The result is that, in these texts, causa means action-
ability, and does not denote anything else, independent of actionability, which creates
that important characteristic," Buckland, Roman Private Law 232.
« CAUSE " AND CONSIDERATION 43
It was assisted, firstly, by the notion that " the enforceable quality
of all agreements was demanded by natural law, and that the
non-enforceability of pacts was a specific Roman doctrine which
was opposed to natural law " ; * and, secondly, by the mistaken
idea that the old Germanic law specially emphasized the duty of
keeping faith.2 These two causes, and especially the second,
led in Germany to the total elimination of causa as a necessary
condition precedent for the enforceability of contracts.3 In other
countries, however, a causa still continued to be necessary ; but it
was a causa of the canonist type. It would seem, in fact, that this
canonist theory of causa inspired the theory of contract accepted
in many continental states in the seventeenth and eighteenth
centuries.4 Thus the necessity for a causa is stated to be necessary
by many writers on Roman-Dutch law.5 It was introduced into
the French law by Domat, accepted by Pothier, and, through
Pothier, found a place in the code Napoleon.6 Brissaud points
out that the theory was accepted the more easily, because it could
be regarded as a development of the older ideas which required
something which corresponded to the English quid pro quo.7
But the " cause," which was thus adopted into French law
and Roman-Dutch law, was, as might be expected from the con-
ditions under which it originated, both elastic and vague. Thus,
" the existence of a natural, i.e. moral obligation, or even of a real
or supposed duty in point of honour only, may be quite enough.
Nay, the deliberate intention of conferring a gratuitous benefit,
where such intention exists, is a sufficient foundation for a binding
unilateral promise." 8 It is not surprising, therefore, that consider-
1 Yale Law Journal xxviii 631. 2 Ibid.
* " In Germany the notion erroneously attributed to the older Germanic law that
4 every lawful agreement entered into with the serious intention of being legally bind-
ing would directly produce of its own force obligatory effect, without regard to the
form in which it was expressed,' ultimately prevailed ; which left no room for the
requirement of a causa as a necessary element for the enforceability of contracts," ibid
632.
* Ibid 630-631. 5 Ibid 631. 6 Ibid 632.
7 " La cause pour les anciens jurisconsultes correspond au quid pro quo ou a la
consideration du droit anglais ; ils ont pris pour point de depart les idees romaines sur
la condictio situ causa, sur les contrats innomes. sur les nullites des stipulations, et de
la ont tire la regie ; pas d'obligation sans cause. Cil n'a mie bele reson de dtmander,
dit P. de Fontaines, qui demande por ce que on li convenanca, sanz autre reson metre
avant. On accepta plus facilement ce principe qu'il cadrait dans beaucoup de cas avec
la theorie phis ancienne de la necessite de {'execution au moins partielle du contract
pour qu'il en resultat une obligation," Brissaud, Droit Francais ii 1419-1420.
8 Pollock, Contracts (5th ed.) App. 692 ; cp. Jazawickreme v. Amarasuriya '1918]
A.C. at p. 875, where the Judicial Committee say, " It may well be that according to
English law, as a general rule, an existing moral obligation not enforceable at law
does not furnish good consideration for a subsequent express promise : but the Roman
Dutch law, by which, in their Lordships view, this case must be governed, is wholly
different. According to the latter law it would appear that a promise deliberately
made to discharge a moral duty, or to do an act of generosity or benevolence, can be
enforced at law, the justa causa debendi, sufficient according to the latter system of
law, to sustain a promise, being something far wider than that which the English law
treats as good consideration for a promise."
44 CONTRACT AND QUASI-CONTRACT
able difficulty should have been experienced in making a satisfac-
tory definition of the term.1 Nor is much light got from the in-
terpretation placed upon the clause of the Code Civil which enacts
that, " L' obligation sans cause, ou sur un fausse cause, ou sur unej^
cause illicite, ne peut avoir aucun effet."2 A contract is said to-
be without a "cause " if the parties did not intend by their agree-
ment to affect their legal relations, or if the subject matter of the
contract had perished before the contract was made. It is said to
have a false " cause " if the parties contracted under a mistake
as to the existence of certain facts, belief in which induced the
making of the contract — e.g. a promise by A to B to pay B a
sum of money under the false belief that he owed him the money.
It is said to have an illegal cause if the object of the contract is
illegal.3 All this really amounts to is that the parties must have
intended by their contract to affect their legal relations, that they
must have really consented, and that the object of their contract
must be legal.4 Hence it is not surprising to find that many
French writers reject the idea that causa is needed for the validity
of a contract. " They regard the requirement of causa . . . as an
abstract and metaphysical notion calling for subtle distinctions,
and creating confusion instead of serving a useful purpose." 5 The
same view seems to be taken by distinguished Roman-Dutch
lawyers. Thus Professor Lee calls the requirement of causa "a
juristic figment,"6 and says that it means little more than that
" an agreement to be legally enforceable must be entered upon
with a serious and deliberate mind." Exactly the same reasoning
applies to causa as defined by the Spanish civil code, the Chilean
code, and the countries in America which have adopted the
provisions of those codes.7
Thus the process of the alteration of the Roman causa has
proceeded continuously and logically to its inevitable result — the
elimination of the necessity for a causa as a condition of the
validity of a contract. And, as in Germany the same result had
been produced by the belief that the old Germanic law enforced
as a contract every lawful agreement intended to be legally bind-
ing,8 it follows that, in most countries outside the sphere of the
common law, the maxim ex nudo pacto non oritur actio has ceased
to be true. " Any pact whatever," says Professor Lee, speaking
1 " Many attempts have been made to find a general definition of causa, but none
of them has met with approval. . . . Great difficulty seems to be experienced by the
French writers in distinguishing the causa of a contract, on the one hand from its
object, and on the other hand from motive in general," Yale Law Journal xxviii 632.
2 Art. 1133. s Yale Law Journal xxviii 633.
4 See Lee, Introduction to Roman Dutch Law 198.
5 Yale Law Journal xxviii 634, and note 75.
8 Introduction to Roman Dutch Law 198 n. 2.
7 Yale Law Journal xxviii 635. 8 Above 43.
" CAUSE " AND CONSIDERATION 45
of Roman-Dutch law, " is enforceable, provided only that it is freely ^
entered upon by competent persons for an object which is physic-
ally possible and legally permissible" j1 and the same description,
it would seem, might be given of either the actual state of the law,
or the state to which it is approximating, in all civilized countries
which are not governed by the common law. The result is a
striking illustration of the truth of Lord Denman's dictum that,
the doctrine that moral obligation is a sufficient consideration
" would annihilate the necessity for any consideration at all, inas-
much as the mere fact of giving a promise creates a moral
obligation to perform it'' 2
The adoption by the law of this liberal attitude ensures the
carrying out of the lawful intentions of contracting parties ; and, if
it is right that the law should enforce contracts, there seems no
good reason why it should not at the present day adopt this
attitude. There seems to be no reason why it should allow itself
to be fettered, either by obsolete procedural difficulties, or by
obsolete technicalities which have been inherited from other legal
systems. But undoubtedly such a system of contract law has its
weak points. In the first place, there is the difficulty of proving
the contract ; and, in the second place, there is the difficulty of
proving whether or not the parties really intended by their agree-
ment to affect their legal relations. Both these questions may
raise very difficult questions of fact. But these difficulties may be
obviated by requiring, as French law requires, all contracts which
involve more than a certain sum of money to be in writing ;3 and
by requiring, as is done in many countries, that promises to give
shall be authenticated by a judge or notary.4
Continental systems of law, therefore, by gradually altering,
and then in effect dropping, the doctrine of causa, have worked out
a theory of contract very different from the English system based
on the doctrine of consideration. But it will be clear that, if the
eighteenth-century theories of moral obligation, and still more
if the theory put forward by Lord Mansfield in Pillans v. Van
Mierop, had prevailed, the English theory of contract would now
be approaching very closely to the continental system. It is worthy
of note that, in the case of Pillans v. Van Mierop, Wilmot, J., to
a large extent, based his judgment on an identification of the
civilian causa with the English consideration.5 As the civilians
held that there could be no nudum pactum when the agreement
1 Op. cit. 197. * Eastwood v. Kenyon (1840) 11 Ad. and E. at p. 450.
3 Yale Law Journal xxviii 642, citing Art. 1341 of the Civil Code ; for a similar
rule in Scotland see Bell, Principles §§ 63, 67, cited [191S] A.C. at p. 875 n. 2.
* Yale Law Journal xxviii 643, citing the codes of France, Germany, and Italy.
5 (T765) 3 Burr, at pp. 1670, 1671.
46 CONTRACT AND QUASI-CONTRACT
was put into writing, because the writing made a causa, so in
England writing should supply the place of consideration. But we
have seen that this theory was never accepted ; and that, in the
second quarter of the nineteenth century, the theory that moral
obligation was a valid consideration was rejected. Both these lines
of development, therefore, were closed.
Instead, a return was made to those sixteenth and seventeenth
century cases, in which the doctrine of consideration was being
developed from the procedural necessities of the action of assumpsit.
Thus the English theory of contract is still bound up with the
conditions imposed upon it by the form of action through which
contracts, other than specialty contracts, became enforceable.
No doubt the resulting theory of contract has its strong points.
"Roughly stated it seems plain and sensible, the court will hold
people to their bargains, but will not enforce gratuitous promises
unless they are made in solemn form." 1 It is in fact strong where
the rival theory is weak. But it may be questioned whether, in
its present form, its weaknesses do not outweigh its advantages.
Some of its weaknesses have been very clearly pointed out
by Mark by.2 A gratuitous promise is not actionable unless it is
made in writing under seal ; but the court will not enquire into
'the adequacy of the consideration, and a mere nominal considera-
tion will suffice. Why should not the performance by A of his
duty under his contract with B, be a consideration for a promise
by C to A ? Why should not a promise to keep an offer open for
a week, or a promise to release a debt in consideration of part pay-
ment, be valid ? Why, in fact, should not any promise be binding
if the party promising intended to put himself under a legal
liability ? The requirement of consideration in its present shape
prevents the enforcement of many contracts, which ought to be
enforced, if the law really wishes to give effect to the lawful inten-
tions of the parties to them ; and it would prevent the enforcement
of many others, if the judges had not used their ingenuity to invent
considerations. But the invention of considerations, by reasoning
which is both devious and technical, adds to the difficulties of the
doctrine.3 Markby s strictures have recently gained an increasing
measure of support. Sir F. Pollock has said that the application
of the doctrine " to various unusual but not unknown cases has
been made subtle and obscure by excessive dialectic refinement." 4
1 Pollock, Genius of the Common Law, 91.
2 Elements of Law (3rd ed.) 310-317.
3 " In some cases where it was clear that contractual liability ought to be re-
cognised, they have found great difficulty in recognising it, because they could not find
any ' consideration,' although there was ample other indication of intention. They
have in most cases managed to get over the difficulty, but by reasoning which is the
reverse of satisfactory," Markby, op. cit. 311,
4 Genius of the Common Law^gi.
" CAUSE " AND CONSIDERATION 47
In a recent case Lord Dunedin said,1 " I confess that this case is
to my mind apt to nip any budding affection which one might
have had for the doctrine of consideration. For the effect of that
doctrine in the present case is to make it possible for a person to
snap his fingers at a bargain deliberately made, a bargain not in
itself unfair, and which the person seeking to enforce it has a legiti-
mate interest to enforce." Professor Lorenzen, in an able article
in the Yale Law Journal, to which I am much indebted, takes sub-
stantially the same view.2
In fact, the doctrine of consideration in its present form is
something of an anachronism. The substantive law has long ago
broken away from the leading strings of the forms of action, and
the law of actions has become merely adjective law. But our
theory of contract is still governed by a doctrine which is histori-
cally developed, with great logical precision, from the procedural
requirements of the form of action by which simple contracts were
enforced. These procedural requirements were not mere matters
of form. They were the conditions precedent for applying the
remedy which was the best, and in many cases the only remedy,
which the common law possessed for the enforcement of contracts.
Thus it happens that it has not been possible to treat the doctrine
of consideration as mere form. It has been necessary to treat it as
the essential condition for the validity of all simple contracts.
There is, it seems to me, good sense in Lord Mansfield's view
that consideration should be treated, not as the sole test of the
validity of a simple contract, but simply as a piece of evidence
which proves its conclusion. This is in effect the view which he
tried to enforce in Pillans v. Van Mierop ;3 and though, like
some of his other rulings,4 it was demonstrably not English law, it
embodied a true idea of the tendency of legal development The
consequence of adopting this view would be that any lawful agree-
ment into which the parties to it entered with the intention of
affecting their legal relations,5 would, if it could be proved by
1 Dunlop Pneumatic Tyre Co. v. Selfridge and Co. [1915] A.C. at p. 855 ; it might
however be contended that the refusal to uphold the validity of the contract in this case
was on the whole in accordance with public policy, as a contrary decision would have
facilitated the operations of a design to keep up prices as against the public ; but this
does not affect the main argument.
* " Subject to certain qualifications relating to form, it should suffice for the forma-
tion of contracts that there exist (1) capacity ; (2) an intention to contract ; and (3) a
possible and lawful object," Yale Law Journal xxviii 646.
s Above 29-30. * Vol. vii 45.
5 This must of course be a condition precedent in any body of contract law ; for a good
and recent instance where an agreement was held to be unenforceable on the ground that
no such intention existed, see Balfour v. Balfour [1919] 2 K.B. 571 ; and cp. Rose and
Frank Co. v. Crompton and Bros. [1923] 2 K.B. 261, [1925] A.C. at p. 454, where it
was held that the agreement of the parties was not enforceable because they had ex-
pressly negatived an intention to create any legal obligations ; note also that exactly
the same principle has been applied by Tomlin, J., to the creation of a trust, In re
48 CONTRACT AND QUASI-CONTRACT
adequate evidence, be enforceable. The intention of the parties
to enter into a lawful agreement affecting their legal relations
would be the main thing. If that was proved the agreement
would be enforceable.
We have seen that in Continental states difficulties of proof
have made it impossible to adopt an attitude quite so liberal as
this ; l and to introduce any such rule into the law of this country
would make a total break with all existing rules of English law.
But it is at least arguable that the time has come to make some
sort of a change. A legal history is not perhaps the place to
make suggestions as to the law of the future. It is concerned with
the past. But, if history is to be something more than mere
antiquarianism, it should be able to originate suggestions as to the
best way in which reforms in the law might be carried out, so as
to make it conform with present needs. The doctrine of consider-
ation has, as we have seen, its strong points. Its weakness is that,
it is inadequate as the sole test of the validity of simple contracts.
The true remedy, therefore, is not to scrap it, but to reduce it to
a subordinate place in the English theory of contract. This, it
seems to me, could be done, and at the same time a great simpli-
fication could be made in the English law of contract, if a short
Act were passed which, (i) abolished the differences between
simple and specialty contracts ; 2 (2) repealed § 4 of the statute
of Frauds and § 4 of the Sale of Goods Act;3 and (3) provided
that all lawful agreements should be valid contracts, if the parties
intended by their agreement to affect their legal relations, and
either consideration was present, or the agreement was put into
writing and signed by all the parties thereto. By making these
changes we should get a body of law which would be easy to
apply, and would allow a greatly increased freedom of contract.
The need for proof that the parties to the contract intended to
affect their legal relations would be satisfied ; proof of the exis-
tence of the contract would be facilitated ; and, at the same time,
full effect could be given to the intention of persons who wish to
enter into contractual relations.
But it is time to return from these anticipations of the future
to the law of the sixteenth and seventeenth centuries.
Falkiner [1924] 1 Ch. 88 ; in fact in equity this principle has long been recognized, see
Lord Walpole v. Lord Oxford [1797] 3 Ves. at p. 419; Maunsell v. Hedges (1854)
4 H.L.C. 1039 ; Jorden v. Money (1854) 5 H.L.C. 185.
1 Above 45.
2 Something like this has already been affected in the law as to the administration
of assets by 32, 33 Victoria c 46 ; Re Samson [1906] 2 Ch. 584.
3 It might be necessary to reconsider other statutes which impose restrictions of
form ; the rule that the contracts of corporations must be under seal would not neces-
sarily be affected, but they would cease to be specialty contracts,
INVALIDITY 49
§ 2. THE INVALIDITY, ENFORCEMENT, AND DISCHARGE OF
CONTRACTS
The growth of rules upon the first of these topics was due,
partly to the working out of the consequences of the fact that the
essence of contract is agreement, and partly to the necessity of
bringing the rules of contract law into line with the law of status
and the law of crime and tort Thus we get the growth of rules
as to the effect of mistake, as to the contractual capacity of married
women and infants, and as to the effect of illegality of object ; and
the growth of these and other rules gradually enables the law to
draw distinctions between different grades of invalidity — between
contracts which are void, contracts which are voidable, and con-
tracts which are unenforceable. But, just as the different rules
which make up the doctrine of consideration were gradually
developed from the procedural rules which regulated the compet-
ence of the action of assumpsit, so some of the rules as to the
invalidity of contracts, the greater part of the rules which regulated
the conditions under which the parties could enforce their contracts,
and the forms and modes of discharge, were gradually built up
from the same procedural basis. It is true that some of these
rules owed something to the mediaeval rules as to covenants and
conditions contained in deeds, which, for the most part, related
to the land law ; and that other doctrines, eg. the rules as to
payment and tender, which first made their appearance in con-
nection with the land law,1 were adapted to the law of contract.
But most of the substantive rules of our modern law were built
up from decisions as to the rights of the parties in personal actions,
and more especially in actions of assumpsit, brought to enforce
contracts; and it is only when these decisions have begun to
accumulate, that the substantive rules begin to take their modern
shape.
During this period these rules are for the most part only
beginning to be developed. In many cases their later develop-
ment is the work of the eighteenth and nineteenth centuries, and
will be related in the succeeding Book of this History. In these
cases, therefore, it will only be possible at this point to indicate
briefly the origins of some of these rules, under the three heads
which I have indicated.
Invalidity
That the absence of consideration made a contract invalid
followed, as we have seen, from the procedural requirements of
assumpsit. Further causes of invalidity flowed from the nature
1 Vol. ii 5go and n. 4.
VOL. VIIL— 4
50 CONTRACT AND QUASI-CONTRACT
of an agreement, the incapacity of the parties, illegality of object,
impossibility, the alteration of a contract under seal, and the effect
of statutory provisions. With these causes of invalidity I shall deal
in the first place. Secondly, I shall deal with one of the results of
these causes of invalidity — the elucidation of the distinction between
void, voidable, and unenforceable contracts. Thirdly, I shall say
something of the effects of fraud and misrepresentation, and explain
why at this period these topics have not assumed the place which
they will occupy in our modern law of contract.
(i) Causes of invalidity.
Causes arising from the nature of an agreement.
We have seen that the contract under seal was the only purely
consensual contract known to the mediaeval common law.1 It is
not surprising, therefore, to find that the early authorities on con-
tracts invalid by reason of circumstances vitiating consent are all
concerned with these contracts under seal. As early as Edward I.'s
reign Fleta stated that a deed executed under a mistake as to its
contents and without negligence was not binding.2 But we have
seen that the mediaeval common law had not acquired a doctrine
of negligence ; 3 and so, in the Year Books, Fleta's rule was stated
in the following form : if an unlearned man, to whom the provi-
sions of a deed had been wrongly read, executed it under a
mistake as to its contents, he could say that it was not his deed.4
The principle of these cases was summed up by Coke in Thorough-
good's Case5 (1584), where it was held that if an illiterate man
was induced, either by a party to the deed or by a stranger, to
deliver as his deed a document which contained provisions quite
different from those which he intended, the deed was void. Clearly
this decision depends at bottom on the principle that the party so
deceived has never consented. The fact that the person deceived
was illiterate is really immaterial, as was seen by some of the
judges0 before Thoroughgood's Case was decided, provided, as
Fleta in the thirteenth century,7 and as the later cases point out,8
1 Vol. iii 420.
2 " Si autem vocatus dicat quod carta sibi nocere non debeat . . . quia per dolum
advenit ut si cartam de feoffamento sigillatam (qu. sigillavit or sigillaverit) cum scrip-
turn de termino annorum sigillare crediderit, vel ut si carta fieri debuit ad vitam, illam
fecit fieri in feodo et hujusmodi, dum tamen nihil sit quod imperitiae vel negligentiae
sua; possit imputari," Heta, 6. 33. 2, cited Pollock, Contracts (gth ed.) 502 n. (/).
3 Vol. iii 375. * Y.BB. 30 Ed. III. 31b ; 9 Hy. VI. Hil. pi. 8 per Paston, J.
5 2 Co. Rep. ga ; cp. Pigot's Case (1615) n Co. Rep. at ff. 27b, 28a.
6 " Nota que fuit dit per Frowike et Kingsmill que lou jeo desire un home que il
voit moy enfeffer dun acre del terre en Dale, et il moy command de faire un fait dun
acre del terre ove letter d'attorney, et jeo face le fait de deux acres, et lie et declare le
fait a luy forsque dun acre, et il enseale le fait, cest fait est merement voide lequel le
feoffor soit letter au nient letter," Anon. (1506) Keil. 70 pi. 6.
7 Above n. 2.
8 Foster v. Mackinnon (1869) L.R. 4 C.P. at p. 712.
INVALIDITY 51
there has been no negligence. It was inevitable that, as the idea
that the essence of contract is consent became more distinctly
realized, the principle should be applied to all kinds of contracts.
In 1869 it was applied to a case where a man was induced to in-
dorse a bill of exchange by the fraudulent representation of the
acceptor that he was signing a guarantee ; x and other modern cases
afford illustrations of different varieties of this fundamental error
or common mistake, which, because it excludes consent, prevents
the conclusion of any contract.2
Similarly, there was authority in the Year Books that an agree-
ment induced by threats or violence could be avoided,3 because in
such a case consent was not freely given.4 " If a stranger menace
A to make a deed to B, A shall avoid the deed which he made by
such threats as well as if B himself had threatened him."5 This
was a slight advance on some of the earlier authorities, which had
refused to pay any attention to duress by a stranger ; 6 but the
common law still continued to take so narrow a view of what
constituted duress " that there was abundant need for the creation
and elaboration by equity of a doctrine of undue influence as a
supplementary cause of invalidity. It was, however, very early
recognized that the effect of duress was different from the effect of
a common mistake. Inasmuch as consent had been given, though
not freely given, the effect was to render the deed not void but
voidable.8
Causes arising from the incapacity of the parties.
That a married woman's contract was, with very few exceptions,
absolutely void, was a principle which had been clearly ascertained
in the Middle Ages.9 On the other hand, it was reasonably clear
that an infant's contract, other than a contract for necessaries, was
voidable at his option ; 10 and it was settled early in the seventeenth
1 Foster v. Mackinnon L.R. 4 C.P. 704.
2 See Anson, Contracts (12th ed.) 149-159.
3 Y.BB. 1 Hy. VII. Pasch. pi. 2 (p. 15) per Keble org.; 14 Hy. VIII. Pasch. pi.
7 (p. 28) per Pollard, J.
4 Y.B. 21 Ed. IV. Mich. pi. 4 (p. 13), and Pasch. pi. 22 per Collow org.
5 Thoroughgood's Case (1584) 2 Co. rtep. at f. gb.
6 " Le defendant en dette plede que il fist l'obligacion al plaintif per duresse den-
prisonment dun estrange, et demanda judgement si accion. Et lopinion de Rede et
auters que ceo nest plea sans faire obligee partie a cest duresse," Anon. (1509) Keil.
x54 pl- 3 '■> though it was admitted that, " dures per estranger per procurement del
partie que avera benefit est bon cause d'avoider," Rolle Ab. Dures C. 1, citing Y.B.
43 Ed. III. Hil. pi. 15.
7 See Huscombe v. Standing (1608) Cro. Jac. 187 where it was held that if a bond
be obtained from A and B, B being A's surety, by duress against A, B could not plead
the duress in discharge of the bond.
8 Y.BB. cited n. 3; Whelpdale's Case (1605) 5 Co. Rep. at f. 119a; Dive v.
Manningham (1551) Plowden at p. 66 cited below 65-66.
9 Vol. iii 528.
10 Y.B. i Hy. VII. Pasch. pi. 2 (p. 15) where the infant's and the married woman's
contracts are contrasted from this point of view ; Whelpdale's Case (1605) 5 Co. Rep.
at f. 119a; Pollock, Contracts (9th ed.) 59-60, 74; vol. iii 518-519.
52 CONTRACT AND QUASI-CONTRACT
century that, if an infant took a lease of property, he was liable for
the rent, if he did not repudiate it during his infancy.1 Moreover,
the court was careful to safeguard the infant's liability for neces-
saries. A bond for the payment of money lent, though it was for
the purchase of necessaries;2 and a contract to buy goods "to
maintain his trade though he gain thereby his living" did not bind
him.3 Whether or not the infant's liability was truly contractual,
so that he was liable to pay the contract price, or whether it was
rather quasi-contractual, so that he was only liable to pay a reason-
able price, was not as yet clearly ascertained. We have seen that
in the Middle Ages there is some authority for the proposition that,
the action of debt lay against him, and if this action lay it could
be brought only for the contract price.4 It is clear, too, that for
the rent reserved on a lease made during infancy he could be sued
by action of debt,5 for otherwise he could not have been sued at
all.6 But in many cases where he was sued for necessaries the
form of the action was assumpsit on a quantum meruit ; 7 and in
this action the plaintiff could obviously recover only a reasonable
price. Thus the form of the action usually employed gave rise to
the modern idea, to which effect is given by the Sale of Goods
Act,8 that his liability for necessaries is rather quasi-contractual
than contractual.9
The treatment by the law of the contracts of drunken persons
or lunatics was for some time uncertain.10 Coke, speaking of dis-
positions of their property made by them, laid it down that the
lunatic and idiot, and a fortiori the drunkard whose disability was
his own fault, could not be allowed to avoid them ; u and presum-
ably he would have applied the same principles to their contracts.12
1 Ketsey's Case (1614) Cro. Jac. 320.
2 " An infant may bind himself to pay for his necessary meat, drink, apparel,
necessary physick, and such other necessaries, and likewise for his good teaching or
instruction, whereby he may profit himself afterwards ; but if he bind himself in an
obligation or other writing, with a penalty for the payment of any of these, that obli-
gation shall not bind him," Co. Litt. 172a.
3 Whittingham v. Hill (1619) Cro. Jac. 494.
4 Vol. iii 519 n. 5; this was assumed to be good law in Makarell v. Bachelor
(1598) Cro. Eliza. 583.
6 Ketsey's Case (1614) Cro. Jac. 320. 6 Vol. vii 263, 272.
7 See e.g. Ive v. Chester (1620) Cro. Jac. 560; Rainsford v. Fenwick (1670)
Carter 215.
8 56, 57 Victoria c. 71 § 2.
9 Nash v. Inman [1908] 2 K.B, at pp. 8-g per Fletcher-Moulton, L.J.
10 On this topic see generally Pollock, Contracts (9th ed.) 96-101.
11 " As for a drunkard, who is voluntarius daemon, he hath (as hath been said) no
privilege thereby. . . . And if an idiot make a feoffment in fee, he shall in pleading
never avoid it by saying that he was an idiot at the time of his feoffment," Co. Litt.
247a.
12 " Every deed feoffment or grant, which any man non compos mentis makes, is
avoidable, and yet shall not be avoided by himself, because it is a maxim in law, that
no man of full age shall be in any plea to be pleaded by him, received by the law to
stultify himself, and disable his own person," Beverley's Case (1603) 4 Co. Rep. at
f. 123a.
INVALIDITY 53
But it is doubtful if this was ever really accepted as law. It was
certainly not the law of Bracton's day, who on this point followed
Roman law;1 and Fitzherbert expressly dissents from it, and
maintains that the dealings by a lunatic with his property were,
like the dealings of an infant, voidable.2 In the eighteenth cen-
tury it was thought that, if the lunacy or drunkenness was so
complete that the lunatic or drunkard was incapable of consent,
the contract was void.3 But there are many cases in which a man
is a lunatic or drunk, but not completely incapacitated ; and it may
well be that his state is not immediately obvious to the other con-
tracting party. It would be hard to rule that in such cases the
contract was wholly void ; and so in 1 848 the principle which
had been for some time acted on by the court of Chancery 4 was
adopted ; and it was laid down that a contract entered into by a
lunatic or drunken person makes the contract voidable at his
option, provided that his state was known to the other contract-
ing party.5
Illegality of object.
That an agreement to do something contrary to law is void
has necessarily been recognized from the earliest times. M If," it
was said in Dive v. Manningham? " the obligation was to save
one harmless if he killed such an one or did such a trespass, the
obligation should be void. So shall it be here, for the obligation
is to save the sheriff harmless for doing a tort and a thing contrary
to law, in which case the obligation is void by the course of the
common law ". There are many cases of this period which lay
down the principle that, if the whole consideration for a contract
is illegal, the contract is void ; " and this is still the law, for the
illegality of the consideration vitiates the whole.8 In certain of
these cases, however, we can see the origin of distinctions which,
to some extent, limit the generality of this principle. Two of
these distinctions are well established in our modern law, and the
third is obsolete.
(i) If some of the stipulations in a contract are legal and some
are illegal, and it is possible to sever the legal from the illegal, the
court will make this severance, and enforce those which are legal.
1 " Furiosus autem stipulari non potest, nee aliquod negotium agere, quia non in-
telligit quid agit," f. iooa.
* F.N.B. 202 D.
3 Yates v. Boen (1739) 2 Str. 1104; Pitt v. Smith (1811) 3 Camp. 33; Pollock,
Contracts 9S-100.
4 Ibid 98 n. (g).
5 Molton v. Camroux (1S48) 2 Ex. 487, 4 Ex. 17.
* (1551) Plowden at p. 64.
7 Bridge v. Cage (1606) Cro. Jac 103 ; Mackeller v. Todderick (1634) Cro. Car.
337 1 Kosindale's Case cited in Hussey v. Jacob (1697) x Ed. Raym. at p. 89.
8 Pollock, Contracts (9th ed.) 443-444.
54 CONTRACT AND QUASI-CONTRACT
" It is unanimously agreed in 14 H. 8 25, 26 that if some of the
covenants of an indenture, or of the conditions endorsed upon a
bond, are against law, and some good and lawful ; that in this
case the covenants or conditions which are against law are void ab
initio, and the others stand good."1 (ii) It was settled in 1623
that if one man makes a promise to another, in consideration of
the performance of a service by that other, which is not manifestly
unlawful, and is not known to the person who performs it to be
unlawful, the fact that it is unlawful will be no answer to an action
on the promise to pay for it.2 " If I request one man to enter into
another man's ground, and in my name drive out the beasts and
impound them, and promise to save him harmless, this is a good
assumpsit, and yet the act is tortious ; but . . . where the act
appears in itself to be unlawful, then it is otherwise, as if I request
you to beat another, and promise to save you harmless, this as-
sumpsit is not good."3 (iii) It was at one time thought that the
operation of a statute in making a contract void was wider than
the operation of the common law. In 1669 Twisden, J., said4
that he had heard Hobart say that " the statute is like a tyrant ;
where he comes he makes all void ; but the common law is like
a nursing father, and makes void only that part where the fault is
and preserves the rest " ; and there was some authority in favour
of this view.5 But it was repudiated by Wilmot, C.J., in Collins
v. Blantern ; 6 and it is long ago settled that no such principle is
law. The extent of the operation of a statute depends entirely
upon its wording.7
Historically, by far the most interesting branch of this cause
of the invalidity of contracts is that which is compendiously
grouped under the head of " public policy." At the present day a
number of contracts are held to be void for illegality of object,
because they aim at effecting certain results which it is the policy
of the law to prevent. 8
It has very often been said, and rightly said, that "public
policy" " is a vague and unsatisfactory term and calculated to lead
to uncertainty and error when applied to the decision of legal
rights " ; 9 for in its ordinary sense it means little more than
1 Pigot's Case (1615) n Co. Rep. at f. 27b; cp. Pickering v. Ilfracombe Kailway
Co. (1868) L.R. 3 C.P. at p. 250. 2 Battersey's Case (1623) Winch. 48.
3 At p. 49. 4Maleverer v. Redshaw i Mod. 35.
5 " A statute is a strict law ; but the common law doth divide according to common
reason, and having made that void that is against law, lets the rest stand," Norton v.
Simmes (1615) Hob. at p. 14.
6 " I think there is no difference between things made void by Act of Parliament,
and things void by the common law," (1767) 2 Wils. at p. 351.
7 Pickering v. Ilfracombe Railway Co. (1868) L.R. 3 C.P. at p. 250.
8 See Anson, Contracts (12th ed.) 221-230.
"Egerton v. Brownlow (1853) 4 H.L.C. at p. 123 per Parke, B. ; cp. the similar
but less cautious statement of Lord Halsbury in Janson v. Driefontein Mines Ltd.
[1902] A.C. at p. 491.
INVALIDITY 55
political expediency, which is a matter for the consideration of the
statesman and not of the judge. But Parke, B., who used these
words, admitted that some decisions have been founded " upon the
prevailing and just opinions of the public good ; for instance the
illegality of covenants in restraint of marriage or trade " ; 1 and he
pointed out that " public policy," if the term was used to signify
the policy of the law, might be "a just ground for judicial decision,"
for, " it amounts to no more than that a contract or condition is
illegal which is against the principles of the established law." 2 In
fact, a body of law like the common law, which has grown up
gradually with the growth of the nation, necessarily acquires some
fixed principles ; and, if it is to maintain these principles, it must
be able, on the ground of public policy or some other like ground,
to suppress practices which, under ever new disguises, seek to
weaken or negative them.3 Only thus can it maintain the essential
continuity of its principles. At the same time, because this
principle of public policy gives to a legal system the power of
preserving in this way the continuity of its principles, it also gives
it the power of developing its principles so as to keep them in
touch with the needs and ideas of the age. It thus helps to
secure, not only continuity, but also a certain elasticity in the
growth of the law. The decision, for instance, in the case of
Bowman v. The Secular Society 4 would have been as unintelligible
to lawyers of an earlier age, as their tolerance of traffic in offices
of trust 5 is to us.
In fact, some such principle is an almost necessary accom-
paniment of our system of case law, and gives it much of its
effectiveness ; for it makes it possible for the judges to preserve
the continuity of legal principles and at the same time to keep the
1 Egerton v. Brownlow at p. 123.
* " The term * public policy ' may indeed be used only in the sense of the policy of
the law, and in that sense it forms a just ground of judicial decision. It amounts to
no more than that a contract or condition is illegal which is against the principle of the
established law. If it can be shown that any provision is contrary to well decided
cases, or the principle of decided cases, and void by analogy to them, and witbin the
same principles, the objection ought to prevail," ibid at pp. 123-124.
s,,The determination of what is contrary to the so-called 'policy of the law'
necessarily varies from time to time. Many transactions are upheld now by our
courts which a former generation would have avoided as contrary to the supposed
policy of the law. The rule remains, but its application varies with the principles
which for the time being guide public opinion," Evanturel v. Evanturel (1874) L.R. 6
P.C. at p. 29 ; " rules wr.ich rest upon the foundation of public policy, not being rules
which belong to the fixed or customary law, are capable, on proper occasion, of
expansion or modification. Circumstances may change and make a commercial
practice expedient which formerly was mischievous to commerce," Maxim Nordenfelt
Co. v. Nordenfelt [1S93] 1 Ch. at p. 661 per Bowen, L.J. ; these dicta were approved
by Vaughan Williams, L.J., in Wilson v. Carnley [190S] 1 K.B. at pp. 737-73S — " I
cannot," he said, " in the least acquiesce in the suggestion that as habits change and
time goes on, we may not find new instances of contracts which cannot be enforced on
the ground that they are contrary to public morality."
4tIQI7] A.C-. 406; below 416. 5Vol. i 250-251.
56 CONTRACT AND QUASI-CONTRACT
law in touch with the facts and needs of daily life.1 No doubt,
in its application to the law of contract, we must remember the
epigram of Jessel, M.R., to the effect that not lightly to inter-
fere with freedom of contract is paramount public policy.2 But
that was said in the days when freedom of contract was supposed
to be the panacea for all the ills of the body politic. It represented
a passing phase of political thought ; and it would now command
as much and as little assent as it would have commanded in
the sixteenth and seventeenth centuries. Historically, complete
freedom of contract was never regarded as "paramount public
policy." If the common law had ever taken this view it would,
in effect, have abandoned its valuable concept of public policy,
and have thereby lost much of its power of shaping the legal and
political ideas of the many races which acknowledge its sway ; for,
as Bowen, L.J., truly said,3 "the interests of contracting parties
are not necessarily the same as the interests of the commonwealth."
Because the common law has, largely through its system of
case law, kept in touch with the needs of the day, it is a little
difficult to say exactly to what kinds of transaction this concept
of public policy was first applied. In the sphere of contract law
it has been said that it was first applied to discourage wagering
contracts.4 In truth, it is much older than this. Long before
these contracts became enforceable through the development of
assumpsit, it had been applied to invalidate transactions which ran
counter to the morality of the day. In fact, one of the oldest and
one of the most continuous of its applications in the sphere of
contract law is its application to contracts in restraint of trade.5
We can see from the bulk of the commercial legislation enacted
at all periods in the history of English law,6 that all matters
connected with trade have always possessed great legal and
political importance; and that the law relating to them has
reflected very accurately prevailing political and economic ideas.7
It is not, therefore, surprising to find that the law as to contracts
in restraint of trade has, more than any other class of contracts,
been moulded by changing ideas of public policy.
In the Middle Ages, when the object of the Legislature was
1 See Rodriguez v. Speyer Bros. [1919] A.C. at pp. 79-81 per Lord Haldane.
2 " If there is one thing which more than another public policy requires it is that
men of full age and competent understanding shall have the utmost liberty of con-
tracting, and that their contracts when entered into freely and voluntarily shall be held
sacred and shall be enforced by courts of justice. Therefore you have this paramount
public policy to consider in that you are not lightly to interfere with this freedom of
contract," Printing Co. v. Sampson (1875) 19 Eq. at p. 465.
:! Maxim Nordenfelt Co. v. Nordenfelt [1893] * Ch. at p. 661.
4 Pollock, Contracts (9th ed.) 380.
8 See Anson, Contracts (12th ed.) 221 (»).
6 Vol. ii 466-473 ; vol. iv 314-407 ; vol. vi 313-360.
7 The history of the usury laws, below 100-112, is a good illustration.
INVALIDITY 57
the attainment of ideally fair conditions of commerce and industry,
when, with this object in view, their conditions were minutely
regulated by statutes and local by-laws,1 any attempt to disturb
the working of these regulations of contract was regarded almost
as a crime.2 Such an attempt was akin to the operations of the
iniquitous forestaller and regrator ; and there is little doubt that
all contracts in restraint of trade were, on these principles, re-
garded as wholly illegal. But we have seen that, during the
sixteenth century, political and moral ideas were changing as
rapidly as the conditions of trade ; and that these changes neces-
sarily produced many changes in men's economic ideas.3 The
object aimed at was not so much the attainment of ideally fair
conditions as the increase in national power. Traders must be
encouraged to found new industries, and, with that object in view,
new associations and companies must be founded, in order that the
requisite capital might be provided. Freer play must be left to
the initiative of the individual trader or body of traders, and
therefore to their power to make what contracts they pleased.
Trade was not, as we have seen, left free in the modern sense.4
As in the Middle Ages, it was still only free within the limits not
covered by regulation ; and, though those regulations now left a
wider scope to the activities of the trader, anything which infringed
those regulations was still regarded as the infringement of the
freedom of trade as defined by law. So that, just as a monopoly
which infringed the freedom of trade as thus understood was
illegal,5 so a contract restraining a man from trading must be for
the same reason held to be void.
Throughout the sixteenth century this was the view taken
by the courts. They therefore held to be void all contracts in
restraint of trade. Thus, in 1578, a covenant by an apprentice
with his master not to exercise his trade in Nottingham for four
years,8 and in 1587 a covenant not to exercise the trade of
blacksmith in Southmins in Surrey,7 were held to be void. In
1 602, in the case of Colgate v. Bacheler* it was resolved that it
was illegal "to prohibit or restrain any to use a lawful trade at
any time or at any place ; for as well as he may restrain him for
one time or one place, he may restrain him for longer times and
more places, which is against the benefit of the commonwealth " ;
and Anderson, C.J., remarked that a man "might as well bind
1 Vol. ii 468-469.
2 Y.B. 2 Hy. V. Pasch. pi. 25 per Hull, J., cited vol. ii 468 n. 3.
3 Vol. iv 316-319, 324-326. < Ibid 350.
5 Ibid 35o-353- * Anon. Moore 115
7 Anon, ibid 242 ; S.C. 2 Leo. 210.
8Cro. Eliza. 872 ; S.C. Owen 143.
58 CONTRACT AND QUASI-CONTRACT
himself that he would not go to church."1 This remark shows
that, as in the Middle Ages, these contracts were still considered
to be illegal, because they attempted to vary the conditions of
trade as settled by law ; and in all of them the dictum of Hull in
Henry V.'s Year Book2 was cited. The mediaeval point of view
was still predominant.
But, as more scope was given to the individual, as he therefore
became more free to make what contracts he pleased, it began to
be seen that this rigid rule worked injustice. The sale of a
business would be impossible, if the vendor could at once set up a
shop next door, and begin to compete with a purchaser ; and it
was felt to be hard that an apprentice could, as soon as he had
served his time, use all his former master's trade secrets to
compete with him. Therefore contracts imposing a limited
restraint of trade were in fact made. Consequently, the courts
found it necessary to revise their attitude to them. The case of
Rogers v. Parry in 16143 marks the beginning of this change.
In that case the defendant had, in consideration of a sum of
money paid by the plaintiff, promised the plaintiff that he would
not carry on the trade of a joiner in a certain shop, during the
term of twenty-one years for which he held the shop. Coke, C.J.,
pointed out that this was not a contract in general restraint of
trade; and the whole court agreed that, "as this case here is for
a time certain and in a place certain a man may well be bound
and restrained from using of his trade " ; and this view of the law
was upheld in the court of Exchequer Chamber in 1621 in the
case of Broad v. Jollyfe? and given effect to in several contempor-
ary and subsequent cases.5
But it is clear that these cases gave only a very carefully
guarded liberty to make these contracts. They only established
an exception to the general rule that these contracts were prima
facie illegal. It was thus necessary to define the conditions under
which they would be held to be valid. In the first place, it was
held that they must be limited as to space ; and they were at
first very narrowly limited. Thus, in 1668, the courts were
inclined to hold that a covenant not to set up a trade in Cirencester
was void.6 In the second place, it was held that a restraint un-
1 Owen 143 ; cp. the Case of the Tailors of Ipswich (1615) 11 Co. Rep. at f. 54a,
where an ordinance restricting apprentices in their trade was held void as contrary
to the Act of 5 Elizabeth c. 4 (see vol. iv 380 seqq.), and as contrary to the policy of
the common law.
2 Cited vol. ii 468 n. 3. 32 Bulstr. 136. 4 Cro. Jac. 596.
5 Jelliet v. Broad (1621) Noy 98; Bragge v. Stanner (1622) Palmer 172;
Prugnell v. Gosse (1649) Alleyn 67 ; Hunlocke v. Blacklowe (1670) 2 Wms. Sauuders
156.
6 Ferby v. Arrosmyth 2 Keble 377.
INVALIDITY 59
limited as to space, though limited as to time, was bad.1 In the
third place, no restraint could be justified which was not reasonable
as between the parties. A limited restraint imposed on the
purchase and sale of a business,2 or by a master on his apprentice,3
might be justified. But there must not only be a sufficient
consideration, as in the case of all other contracts, but a considera-
tion which was of such a sort that it proved the reasonableness of
the transaction.4 Thus, in 1685, a bond taken by the Company
of Tailors at Exeter from a tailor not to use his trade in Exeter ; 5
and in 1689 a bond not to buy certain goods of any but the
plaintiff, and not to buy more than a certain quantity,6 were held
to be void. In so far as these two cases decided that the court
could not enforce such a contract unless it was reasonable as
between the parties, they were no doubt rightly decided. But
some of the dicta went further. Thus, in the first of them the
analogy of the infant's bond for necessaries was used, and it was
held that a bond not to exercise a trade was in no circumstances
good, though a simple contract to the same effect might be good."
We have seen that after the Revolution there was a tendency
to remove many of the old restrictions to which trade had formerly
been subject. The Whigs were backed by the merchants ; and
the mercantile opinion which favoured freedom of trade got more
weight in the Legislature.8 It was inevitable that this changed
point of view should react upon the courts, and that, in the light
of it, they should revise their views as to the validity af contracts
in restraint of trade. In fact, at the beginning of the eighteenth
century, a revision of the law on this topic was as necessary as it
1 See Barrow v. Wood (1643) March 191, where serjeant Evers admitted that,
"if a man binds himself not to use his trade for two years, or if a husbandman be
bound he shall not plough his land, these are conditions against law, because where
the restraint is total . . . the condition is not good " ; cp. the Case of the Tailors oi
Ipswich (1615) 11 Co. Rep. 53a.
2,1 And this was agreed by Rolle for law, who took these differences, that where
a bond or promise restrains the exercise of a trade, although it be as to a particular
place only, yet if it be upon no consideration, the bond etc., is void: but if there
were a consideration for the restraint, as if A assign a shop to B . . . there in
respect of the apparent prejudice which may accrue to B if A should continue the
trade, such a bond or promise is good," Prugnell v. Gosse (1649) Alleyn 67.
3 ,: Windham said that an apprentice might be bound on this condition, as Hall
against Haws 9 Car. 1, when the original taking and instruction is on these terms,"
Ferby v. Arrosmyth (1668) 2 Keble 377.
4 Above n. 2 ; cp. Jelliet v. Broad (1621) Noy 98 where emphasis was laid on
the adequacy of the consideration ; and Clerk v. Taylors of Exeter (1685) 3 Lev. at
p. 242.
s Clerk v. Taylors of Exeter 3 Lev. 241.
6 Thompson v. Harvey 1 Shower 2.
7 Clerk v. Taylors of Exeter (1685) 3 Lev. at pp. 242-243 ; and the same rule
was laid down by Reeve, J., in Barrow v. Wood (1643) March at p. 193 ; but opinions
were somewhat conflicting, see Rolle's opinion cited above n. 2, and Dolben's dis-
senting opinion in Thompson v. Harvey (1689) 1 Shower at p. 3.
"Vol. vi 333-334-
60 CONTRACT AND QUASI-CONTRACT
had become at the end of the nineteenth century. The scattered
cases, which had begun to modify the older rigid principle, con-
tained the germs of the newer law ; but they were not wholly
consistent, and some laid down law which was not wholly reason-
able. It was obvious that they all required to be reviewed in the
light of the new economic ideas which were beginning to prevail.
This review of the cases and restatement of the law was made in
171 1 by Parker, C.J. (the future Lord Macclesfield), whose judg-
ment in the case of Mitchel v. Reynolds x is the true beginning of
the modern law on this subject.
The facts in the case of Mitchel v. Reynolds were as follows :
The defendant had assigned to the plaintiff the lease of a bake-
house in the parish of St. Andrews, Holborn, for the term of five
years, and had given a bond promising to pay a penalty if, during
that term, he exercised the trade of a baker in that parish. The
question was whether this bond was valid. Parker, C.J., pointed
out that restraints on trade might be either involuntary, that is
imposed by law or custom, or voluntary, that is imposed by the
agreement of the parties.2 The first sort were restraints imposed
by grants, charters, customs, or bye-laws ; and of these some, e.g.
a grant which created a monopoly, were bad, while others, e.g. a
bye-law for the better regulation of trade, were good.3 All general
restraints imposed by the agreement of the parties, and all restraints
whether general or particular made without consideration, were
void.4 But particular restraints, if imposed upon a good and
adequate consideration, "so as to make it a proper and useful
contract" 5 were good. In order to prove this thesis, Parker, C.J.,
made a novel and somewhat unhistorical use of the analogy of
those older restraints on trade imposed by the law, which were
then beginning to be regarded as obsolete.6 He used it to show
that the law had never indiscriminately condemned all restraints
on trade, pointing out that, as involuntary restraints had, from time
immemorial, been imposed by custom, they must have had a
lawful beginning." But these involuntary restraints must always
have been reasonable, so that even a crown grant which attempted
to impose an unreasonable restraint, would be void.8 No doubt the
reasons which induced the courts to hold unreasonable involuntary
1 1 P. Wms. 181. 2 Ibid at p. 183. 3 Ibid at pp. 183-185.
4 Ibid at p. 185. s Ibid at p. 186. 6 Vol. vi 337.
7 " Thirdly, that since these restraints may be by custom, and custom must have a
lawful foundation, therefore the thing is not absolutely and in itself unlawful. Fourthly,
that it is lawful upon good consideration for a man to part with his trade. Fifthly,
that since actions on the case are actions injuriarum, it has been always held that such
actions will lie for a man's using a trade contrary to custom, or his own agreement ;
for there he uses it injuriously," ibid at p. 187.
8 Ibid at p. 183.
INVALIDITY 61
restraints did not apply to voluntary restraints ; ! but, as both
alike were restraints on trade, this difference did not prevent the
law from treating reasonable voluntary restraints in the same
way as reasonable involuntary restraints. That the restraints
should be reasonable was the important matter. What then should
be the test of reasonableness ? The law should look to see whether
the restraint imposed, either a restriction on the party which would
prevent him from earning his livelihood, or a hardship on the public
by depriving it of the abilities of one of its members.2 More
especially should it look to see that these contracts do not facilitate
the operations of those corporations, " who are perpetually labour-
ing for exclusive advantages in trade, and to reduce it into as few
hands as possible " ; 3 or the operations of " masters who are apt
to give their apprentices much vexation on this account, and to use
many indirect practices to procure such bonds from them, lest they
should prejudice them in their custom when they come to set up
for themselves."4 If none of these evils appeared to be likely to
result from a contract stipulating for a particular restraint, it was
reasonable and valid,5 even though the contract took the form of a
bond.6 But the onus of proving that it has satisfied these tests of
reasonableness is always on the party seeking to enforce it, and, if
he cannot satisfy that onus, it is void ; for the law always presumes
these contracts to be void."
This case stands at the parting of the ways. In the play
which it makes with the older regulations, depending on crown
grants customs and bye-laws, we can see traces of methods of con-
trolling trade which had fast been weakening ever since the
Revolution ; and, in the manner which it uses the analogy afforded
by the control, which the common law exercised over the reason-
ableness of these regulations, we can see a skilful adaptation of the
principles underlying this control, to those new voluntary restraints
which the greater freedom accorded to trade was making increas-
ingly common. The control, which formerly was applied to the
older involuntary restraints, must be adapted to the more modern
voluntary restraints. And some adaptation was necessary, both
because the control of these voluntary restraints could not be
justified on quite the same grounds, and because new tests of
reasonableness must be supplied. It is in the definition of these
new tests that this case lays down substantially modern law. No
1 " The true reason of the disallowance of these (voluntary restraints) in any case
is never drawn from Magna Charta ; for a man may voluntarily and by his own act
put himself out of his possession of his freehold. . . . Neither is it a reason against
them that they are contrary to the liberty of the subject ; for a man may, by his own
consent, part with his liberty ; as in the case of a covenant not to erect a mill upon his
own lands," i P. Wms. at pp. 188-189.
* Ibid at p. 100. J Ibid. * Ibid.
5 Ibid at pp. 191, 197. * Ibid at pp. 194-196. 7 Ibid at pp. 191-192.
62 CONTRACT AND QUASI-CONTRACT
doubt changes in economic conditions have rendered some of the
dicta contained therein obsolete. No doubt certain expressions
are misleading and have misled — the use throughout the case of
the term consideration, both in its technical sense, and in a non-
technical sense to mean a reasonable ground for making a
contract,1 was the foundation of erroneous ideas as to the part
which consideration played in relation to these contracts.2 No
doubt the leading principles there laid down were somewhat
obscured by the detailed rules, and fine distinctions, which were
elaborated by the long line of cases which followed it.3 But, when
all deductions have been made, there is no doubt that we see in
this case the same principles which were restated, and applied to
a new economic environment, in Nordenfelt v. the Maxim Norden-
felt Co.,4 in Mason v. the Provident Clothing Co.? and in Morris v.
Saxelby.^ All these decisions follow this case in recognizing that
contracts in restraint of trade are prima facie void. The first
recognizes pre-eminently the principle that they must not be
injurious to the public. The other two that they must not be
oppressive to the party restrained. In fact, the two main evils
pointed out by Parker, C.J., as likely to result if these contracts
were not carefully controlled — the danger of allowing a great cor-
poration to get too exclusive a control of trade, and the danger
that masters would oppress their apprentices — precisely correspond
to the two sets of circumstances in which these contracts are
usually made. They are usually made, either on the purchase
and sale of a business, or on the engagement of an employee ; and,
as the modern cases show, it is the first of these dangers which
must be specially guarded against in the former, and the second
in the latter type of case.
Impossibility.
The parties to a contract may either (i) promise something
absolutely impossible in itself or made impossible by law ; or (ii)
something not inherently impossible, but impossible in fact ; or
1 See especially i P. Wms. at pp. 192-193 where consideration is used (1) in the
sense of evidence of reasonableness, and (2) is compared with the consideration in a
covenant to stand seised.
2 " It was laid down in Mitchel v. Reynolds that the court was to see that the re-
striction was made upon a good and adequate consideration, so as to be a proper and
useful contract. But in time it was found that the parties themselves were better
judges of that matter than the court, and it was held to be sufficient if there was a
legal consideration of value ; though of course the quantum of the consideration may
enter into the question of the reasonableness of the contract," Nordenfelt v. Maxim
Nordenfelt Co. [1894] A.C. at p. 565 per Lord Macnaghten ; see 1 S.L.C. (10th ed.)
404-405, and Hitchcock v. Coker (1837) 6 A. and E. at pp. 456-457 per Tindal, C.J.
3 A good account will be found in the note to this case in 1 S.L.C. (10th ed.) 402
seqq. ; and in the judgments in Nordenfelt v. Maxim Nordenfelt Co. [1894J A.C. 535,
especially Lord Macnaghten's criticism of the views of Bowen, L.J. at pp. 562 seqq.
4 [1894] A-C 535- 5 [1913] A.C. 724. 6 [1916] 1 A.C. 688.
INVALIDITY 63
(iii) the object of the contract may be made impossible by the act
of one of the parties to the contract. The last named case is
really one of the ways in which a contract may be discharged by
breach, and I shall speak of it under that head1
(i) As to promises which are absolutely impossible in them-
selves there is not much authority.2 Probably a contract, in
which such a stipulation was the consideration for a promise, would
be held to be void because there was in fact no real consideration.8
But such promises have sometimes come before the courts in the
shape of conditions in bonds. A promises B to pay a sum
certain, with a condition that, if a certain event happens, the
promise to pay is to be void. What is intended is to secure the
happening of the event ; and " when the condition is illegal our
courts have found no difficulty in considering the bond as what in
truth it is, an agreement to do the illegal act But in the case of
impossibility the law has stuck at the merely formal view of a
bond as a contract to pay the penal sum, subject to be avoided
by the performance of the condition ; accordingly, if the condition
is impossible either in itself or in law, the obligation remains
absolute."4 On the other hand, if the condition is subsequently
made impossible of performance by the act of God, or if one of
several conditions is thus made impossible, the bond becomes void.5
If a stipulation in a contract is legally impossible of perform-
ance it is tantamount to saying that its performance is illegal, and
therefore void. Thus, where the bailiff of J.S. promised the
defendant that he would release a debt due from the defendant to
J.S., if the defendant would repair his barge, the contract was held
to be void because the consideration was legally impossible, "for
the plaintiff cannot discharge a debt due to his master." 6
(ii) The mere fact that a promise is impossible in fact is no
ground of invalidity, if an unconditional promise has been made."
1 Below 78. 3 See Pollock, Contracts (9th ed.) 309.
3 Anson, Contracts (12th ed.) 357.
4 Pollock, Contracts (gth ed.) 335 ; Co. Litt. 206b (there cited) says, " If a man
be bound in an obligation etc. with condition that if the obligor do go from the church
of St. Peter in Westminster to the church of St. Peter in Rome within three hours,
that then the obligation shall be void. The condition is void and impossible, and the
obligation standeth good."
5 " Where a condition of a bond consists of two parts in the disjunctive, and both
are possible at the time of the bond made, and afterwards one of them becomes im-
possible by the act of God, the obligor is not bound to perform the other part : for the
condition is made for the benefit of the obligor, and shall be taken beneficially for him,
and he hath election to perform the one or the other for the saving of the penalty of his
bond : and when one part is become impossible by the act of God, it is as beneficial
for him as if that part of the disjunctive, which is become impossible, had been only
the condition of the bond," Laughter's Case (1595) 5 Co. Rep. at f. 22a ; Pollock,
Contracts 335.
6 Harvey v. Gibbons (1676) 2 Lev. 161.
7" En tiels cases ou nul defaut est en le obligee en le performance del condicion,
en ceux cases si la condicion ne soit performe, l'obligor forfeitera, come en case si
64 CONTRACT AND QUASI-CONTRACT
This principle is well illustrated by the case of Paradine v. Jane}
In that case the plaintiff sued the defendant for three years arrears
of rent. The defendant pleaded that Prince Rupert had kept him
out of possession from July, 1643, till March, 1646, so that he could
not take the profits. It was held that this plea was no answer to
the action. " And this difference was taken, that when the law
creates a duty or charge, and the party is disabled to perform it
without any default in him, and hath no remedy over, then the
law will excuse him. As in the case of waste, if a house be
destroyed by tempest or by enemies, the lessee is excused. . . .
But when the party by his own contract creates a duty or charge
upon himself, he is bound to make it good, if he may, notwith-
standing any accident by inevitable necessity, because he might
have provided against it by his contract." This is still the law if
the contract is in terms unconditional. And at this period the
courts were the more ready to apply it to all contracts, because, as
we shall see, they were inclined to hold that where the two parties
to a contract made mutual promises, those promises were indepen-
dent of each other, so that each could sue the other for the breach
of the other's promises, whether or not the party suing had
performed his part.2 We shall see that later the tendency was the
other way, and the courts were more inclined to hold that such
promises were dependent the one upon the other, so that non-
performance by one party was an excuse for non-performance by
the other.3 But this enabled more attention to be paid to the
underlying intention of the parties when they entered into the
contract, and so made it possible to hold that they were excused
by the happening of events which neither had contemplated at
that date.4 This has led to numerous exceptions which have, to a
large extent, eaten up the original rule. The original rule is now
only applicable in cases where the parties have used words which
show that they intended their promises to be absolute.
The alteration of a contract under seal.
It was laid down in Pigot's Case 5 that, if a deed is altered
in a material point, either by a party to it or by a stranger, the
deed becomes void. If it is altered in an immaterial point by
a party to it, it likewise becomes void ; but if it is altered in an
home soit oblige a un auter en xxli, sur condicion quod pluvia debet pluere eras, et
sinon donques l'obligation sera bon, en eel cas si pluvia non pluit eras, le obligor for-
feitera son obligation et uncore nul defaut fuit en luy, car il ne scavoit que pluvia non
debet pluere, mez pur ce que l'obligor fuit oblige, et nul defaut fuit en le obligee en le
performance, pur eel cause il avera son accion ; en meme le maner si home soit oblige
a moy sur condicion que le Pape sera icy a Westmonesteris in crastino, en eel cas si le
Pape ne vient, uncore n'est nul defaut en le defendant, et uncore il ad forfeit le
obligacion," Y.B. 22 Ed. IV. Mich. pi. 6 (p. 26) per Brian, C.J.
1 (1648) Aleyn 26. 2 Below 72-73. 3 Below 73.
* Pollock, Contracts 279. 5(i6i5) n Co. Rep. at f. 27a.
INVALIDITY 65
immaterial point by a stranger without the privity of the party,
the deed is not avoided. These rules laid down by Coke are the
foundation of the present law applicable to all written contracts.1
Statutory Provisions.
The two statutes affecting the validity of contracts of which I
intend to speak at this point are the statute of Frauds s and the
statute of Limitation.3 Of the first I need say little as I have
already discussed the effect of the two sections — the fourth and
the seventeenth — which affect the validity of contracts.4 We
have seen that the question whether the fourth section rendered
the contract void, or left it valid but unenforceable by action, was
for some time doubtful ; but that, before the point was actually
decided, the better opinion was that it only rendered the contract
unenforceable.5 We have seen too that the question as to the
effect of the seventeenth section was never finally decided.6 On
the other hand, it was reasonably clear from the words of James I.'s
statute of Limitation that that statute affected, not the right under
a contract, but the right to enforce it. As the court said in the
case of Wainfordv. Barker? "it is a debt tho' barrable by pleading
of the Statute."
(2) The different effects of these various causes of invalidity.
It will be clear that these various causes of invalidity produced
very different effects upon contracts. They might render them
either void, voidable, or unenforceable by action. It is clear that, as
early as 1 55 1, the courts were well aware of the difference between
void and voidable transactions — indeed it was clearly brought out
by the rules as to the different manner in which it was necessary
to plead these two facts. " The statute saith ' if an obligation be
taken in other form than is contained in the statute it shall be
void,' and from what time shall it be void? I say, from the
beginning, and if it be void from the beginning, then it never was
his deed, and if it never was his deed, then he ought to have con-
cluded non est factum. As if a man will plead in avoidance of a
deed that he was a man not lettered, and that the deed was read to
him in other form . . . then he ought to conclude, non est factum,
because the matter proves that it never was his deed. But, if it
was once his deed, and afterwards the duty thereof became extinct,
then he ought to demand judgment si actio. . . . As if an infant
or a man by duress make an obligation, they shall demand judgment
1 Sea Master v. Miller (1791) 4 T.R. at p. 330 per Lord Kenyon, C.J.
* 29 Charles II. c 3. s 21 James I. c. 16 § 3 ; vol. iv 533.
* Vol. vi 390-393. 5 Above 35.
* Vol. vi 386 n. 4. 7 (1698) 1 L<L Raym. 232.
VOL. VIlT. — 5
66 CONTRACT AND QUASI-CONTRACT
si actio, because the delivery of the deed was not void. And
so is the diversity when a man shall say non est factum, and when
he shall demand judgment si actio." 1 Or, to translate these differ-
ences from the phraseology of adjective to the phraseology of
substantive law, so is the diversity between void and voidable.
Similarly, it is clear from the manner in which the courts inter-
preted the statute of Limitation, and the fourth section of the
statute of Frauds, that they had a clear enough appreciation of the
practical consequences of the differences between void and unen-
forceable.
But, though the courts have shown a clear enough appreciation
of these essential differences, both they and the Legislature have
often used the terms void, voidable, and unenforceable very loosely.
The word void is often used where either voidable or unenforceable
is meant. Thus, the incorrect term " void " was applied to infants'
contracts instead of the correct term "voidable," before certain of
these contracts had really been made void by the Infants' Relief
Act ; 2 and the same term was sometimes applied to contracts
which were not evidenced by writing as required by section four
of the statute of Frauds.3 So that, as Sir F. Pollock has truly said,
" the language of text writers, of judges, and even of the Legislature,
is no safe guide apart from the actual decisions."4 We shall, I
think, find the explanation of this curious phenomenon in the fact
that these differences were worked out mainly from the point of
view of the procedure and pleading in an action. The fact that
they were so worked out is illustrated clearly enough by the
extract from the case of Dive v. Manningham just cited.5 We
have seen, too, that the best evidence of the fact that the effect of
non-compliance with section four of the statute of FYauds was to
render the contract unenforceable, is, firstly, the manner in which
the courts allowed a memorandum, drawn up after the contract
had been made, to be given in evidence ; and, secondly, the growth
of the equitable doctrine of part performance.6 Both these rules
really originate in rulings as to the evidence admissible to prove
the contract. Similarly the long controversies as to whether it
was necessary to plead specially the statute of Limitation,7 would
hardly have been possible, if the courts had not been conscious
that the statute affected, not the validity, but the enforceability,
of the contract.
1 Dive v. Manningham, Plowden at p. 66 per Mountague, C.J. ; as we have seen
there was Year Book authority for these propositions, above 51 n. 3.
2 Pollock, Contracts (gth ed.) 59-60.
3 See e.g. Birkmyr v. Darnell (1705) 1 Salk. at p. 28.
4 Contracts (5th ed.) 54. 5 Above 65-66.
8 Above 35 ; vol. vi 393, 658-659.
7 See ncte 6 to Hodsden v. Harridge 2 Wms. Saunders 63.
INVALIDITY 67
Now, if a judge is trying an action, and a defendant pleads a
plea which is an answer to the plaintiff's claim, the result upon the
issue of that action is the same whether the effect of the plea is to
make the contract void, voidable, or unenforceable. Whether the
plea is non est factum, or infancy, or the statute of Limitation, the
result upon the action of the proof of the plea is the same — the plain-
tiff loses. Hence, if the matter is looked at solely from the point of
view of the result of the particular case before the court, it is very
easy to slide into a loose way of characterising the contract, which
a plaintiff is seeking in vain to enforce. It is easy to call it void,
when voidable or unenforceable is meant, because, whichever word
is used, the result to the plaintiff is the same ; and when once this
loose manner of talking has become habitual to judges and lawyers,
it is bound to affect the phraseology of text-books and statutes,
which are written or drafted by those same lawyers.1
That this explanation of this confusion in phraseology is true,
is the more probable if we consider that the greater part of our law
of contract has grown up in the atmosphere of procedure. The
origin and growth of the doctrine of consideration is, as we have
seen, one striking illustration of this fact. We shall see other
illustrations of this fact in the manner in which the law originally
dealt with the effects upon a contract of fraud and misrepresenta-
tion, and in many of the rules relating to the enforcement of con-
tracts, and to their discharge by breach.
(3) The effects of fraud and misrepresentation.
In modern law fraud and misrepresentation are usually classed
among the facts which may affect the validity of a contract. But
it was long before they came to be regarded from this point of
view.2 Fraud, as we have seen, was a tort; and in the Middle
Ages it had been developed by an action of deceit on the case.3
It was only by bringing such an action that a fraud (whether in-
ducing a contract or not) could be remedied ; and there was no
remedy for misrepresentation not amounting to fraud. For the
growth of such a remedy, and for the growth of the idea that fraud,
and in certain cases misrepresentation, may operate to invalidate
a contract, and may give rise to remedies on the contract, we must
look to a development in the remedies provided for frauds induc-
ing a contract.
Both the action of deceit and the action of trespass on the case
played their part in the development of the action of assumpsit.4
1 For an instance where the Legislature used the term " void " when it meant
"voidable " see Re Carter and Kenderdine's Contract [1897] 1 Ch. 776.
2 For the early interference of the chancellor owing to this defect in the common
law, see vol. v 292, 326, 328.
3 Vol. iii 407-408. * Ibid 407-408, 429 n. 3,
68 CONTRACT AND QUASI-CONTRACT
We have seen that in Somertoris Case it was held that a lawyer
who had, in breach of his undertaking, betrayed his employer and
acted for his rival, could be made liable in an action of deceit on
the case.1 It was no long step to take to hold that, if a person
definitely and expressly warranted the truth of certain facts, and
the facts turned out to be otherwise, he could also be made liable
to an action of deceit on the case.2 In other words, he could be
made liable in tort for a false warranty ; and, if he had thus
warranted the truth of certain facts, he could be made liable for
the damage resulting from their untruth, whether or not he knew
them to be untrue.3 It followed, therefore, that if a contract was
induced by fraud or misrepresentation the party aggrieved had no
remedy by action on the contract ; for the contract was not thereby
rendered invalid. But he had an action in tort for deceit if he
could prove that the other contracting party knew that his repre-
sentation was false,4 or if at the time of the contract he had
expressly warranted its truth.5
It was with reference to contracts for the sale of goods that
these principles were almost exclusively developed ; 6 and it is one
of these cases — the case of Chandelor v. Lopus " — which shows
most clearly the attitude of the law at the beginning of the
seventeenth century. In that case the plaintiff brought an action
on the case against the defendant a jeweller, for that he, "being a
jeweller, and having skill in jewels and precious stones, had a
stone which he affirmed to be a Bezoar stone, and sold to the
plaintiff for one hundred pounds ; ubi re vera it was not a Bezoar
stone." The plaintiff got a verdict in the King's Bench ; " but
error was thereof brought in the Exchequer Chamber ; because
the declaration contains not matter sufficient to charge the
defendant, viz. : that he warranted it to be a Bezoar stone, or that
he knew that it was not a Bezoar stone ; for it may be that he
himself was ignorant whether it were a Bezoar stone or not " ; and
on this ground the judgment was reversed. As it was clear that
there had been no warranty, the plaintiff then brought a fresh action,
alleging that the defendant knew the stone not to be a Bezoar
stone.8 Whether this declaration disclosed a good cause of action
iVol. iii 431-432.
2 Bellewe 139-140, citing a Y.B. of 7 Rich. II. concerning a warranty of a horse,
cited vol. iii 408 n. 1.
3 Ibid 40S and n. 2.
* Dale's Case (1586) Cro. Eliza. 44 ; Sprigwell v. Allen (1649) Aleyn. 91.
8 Roswell v. Vaughan (1608) Cro. Jac. at p. 197 ; Rolle, Ab. Action stir Case P.
pi. 4 (i p. 90), and see ibid i g7 pi. 1, citing a case of 33 Eliza.
"As Mr. Street had said, Foundations of Legal Liability i 377, "the proper
approach to the subject of fraud in its modern aspects is found in the law of chattel
sales."
7 (1603) Cro. Jac. 4.
8 From a MS. volume of reports in the Harvard Law School Library printed
H.L.R. viii 282-284.
INVALIDITY 69
divided the court, and the ultimate issue of the action is not
known.1 But it is clear from this case that a defendant, induced
to contract by fraud, had no remedy except in tort ; and that he
could only succeed in an action of tort if he could prove that the
defendant either knew that his statements were untrue, or he had
expressly warranted - their truth at the time of the making of the
contract.3 The only exceptions to this rule were the cases of sales
of food and drink, which the law required to be pure, and to which
there was therefore annexed an implied warranty of quality.4
It would seem that the judges, dreading to encourage litigation
by disappointed purchasers, were inclined to insist very strictly
on the maxim ' ' caveat emptor." 5 If a man sells an unsound horse
or unsound wine, "it behoveth," says Fitzherbert,6 "that he
warrant the wine to be good and the horse to be sound, other-
wise the action will not lie. For if he sell the wine or horse
without such warranty, it is at the other's peril, and his eyes and
his taste ought to be his judges in that case." This, in effect, left
the law without any adequate means of repressing fraud. Its
definition of fraud was too narrow, in that it did not include
statements made recklessly ; and it took no account of statements
made at the time of a sale, which in fact amounted to a warranty,
unless they were put into the form of an express warranty." But
it is obvious that, in one respect, the idea that a man might be
liable in tort for the breach of an express warranty, tended to
develop the law. This liability for breach of warranty, though
asserted by an action in tort, existed whether or not the person
warranting knew of its falsity. In fact, the ground of the liability
was as much contractual as delictual ; for it was based on the
breach of the warranty as to the truth of the statement warranted.
1 It may perhaps be inferred from the statement of counsel in Southern v. How
(1618) Cro. Jac. at p. 469 that the second action succeeded ; he says distinctly that
" because that it was sciens the plaintiff had judgment " ; this statement was not con-
tradicted, and Tanfield, J., had said, H.L.R. viii 284, " it is agreed by all that if in
this case sciens le defendant were omitted, the plaintiff could not recover."
2 " Note that by the civil law every man is bound to warrant the thing that he
selleth and conveyeth, albeit there be no express warranty : but the common law
bindeth him not unless there be a warranty either in deed or in law, for Caveat
Emptor," Co. Litt. 102a.
s Andrew v. Boughey (1553) Dyer at ff. 75b, 76a ; in the case of Pope v. Lewyns
(1622) Cro. Jac. 630 it was held that the proper form of declaration was warranti-
zando vendidit not warrantizavit et vendidit ; cp. Mew v. Russell (1683) 2 Shower 284.
4 Vol. iii 386 ; Street, op. cit. i 379-380.
s " This case is a dangerous case and may be the cause of a multitude of actions,
if it be thought that the bare affirmation of the vendor causes the action," Chandelor
v. Lopus H.L.R. viii 284 per Popham, C.J.
•F.N.B. 94c; cp. Tanneld, J.'s views, H.L.R. viii 284.
^Street, op. cit. i 379-380; and see Popham, C.J.'s views H.L.R. viii 284; as
Mr. Street says, " Between the two propositions that there can be no warranty with-
out an express agreement, and no fraud without an actual knowledge of the falsity of
the representation, the ingenious rascal went free."
70 CONTRACT AND QUASI-CONTRACT
This clearly tended to introduce into the law the idea that
non-fraudulent misrepresentation might be a ground of liability.
It was not till the eighteenth century that the liability of
vendors for mis-statements, fraudulent or otherwise, was extended
by the growth of the idea that a warranty could be implied.
This development took place, first in relation to warranty of title,1
and later and less completely in respect of warranties of quality.
When, towards the close of the eighteenth century, it became
possible to sue for damages for breach of a warranty by an action
on the contract,2 it became clear that fraud, and certain kinds of
non-fraudulent misrepresentation, had a direct effect upon the
validity of a contract. In fact, as Mr. Street has truly said,3 since
then " the law of warranty has been transferred almost bodily to
the domain of contract." When that happened, the ideas which
originated in the law of warranty as applied to sales of goods,
during the period when the action on a warranty was an action in
tort, were applied to other classes of contract.4 As the result of
this development, it will become possible to regard fraud, and
certain kinds of non-fraudulent misrepresentation, as having definite
effects upon the validity of a contract. But the law had not
reached this point at the close of the seventeenth century. The
only remedy for a false representation was an independent action
in tort ; and, as we shall see in the following sections, the rules as
to the enforcement of contracts, and as to their discharge by failure
of performance, were such that it would hardly have been possible
for a person who had been defrauded to get adequate relief by an
action on the contract.
Enforcement
Both the rules as to quid pro quo, and the doctrine of con-
sideration, presuppose the fact that both the parties to a contract
have duties thereunder. If, therefore, one of the parties to a
contract wishes to compel the other to perform his duties under it,
1 The first advance in this direction was made by Holt, C.J.'s decisions in Crosse
v. Gardner (1689) Carth. 90, and Medina v. Stoughton (1700) 1 Ld. Raym. 593, to
the effect that an affirmation by a seller in possession of goods that they were his
own amounts to a warranty ; as Mr. Street says, op. cit. i 383, this decision tended
to " brea'< down the rule that express words of warranty are necessary."
2 The first reported case in which this was allowed was Stuart v. Wilkins (1778)
1 Dougl. 18 ; but according to Buller and Ashhurst, JJ., ibid at p. 21, the practice
of so declaring was considerably older, though it evidently struck Lord Mansfield as
a novelty.
3 Op. cit. i 390.
4 At this period there are very few examples of the application of this remedy
except in the case of contracts of sale ; one of the few cases is Anon. (1683) Skin. 119,
where the plaintiff sued the defendant for deceit in pretending to be a single person,
and inducing her to go through the form of marriage with him ; cp. Street, op. cit. i
392.
ENFORCEMENT 71
the question arises whether he can do so if he has not himself
performed his own duties. It is clear that on this question three
possible views may be taken. Firstly, A's right to enforce B's
duty under a contract, made between A and B, may be conditional
upon A's performance of his own duty ; or A's and B's duties
may be regarded as being entirely independent of each other, so
that each can sue the other, though the party suing has not
performed his part ; or A's and B's duties may be regarded as
being due simultaneously, so that neither can sue the other, unless
the party suing is ready and willing, at the time of the action
brought, to perform his duty.1
The rules applicable to this question are, at the present day,
regarded as depending on the interpretation of the intention of the
parties to the contract. "The court looks to the purpose and
effect of the contract as a whole as a guide to the probable
intentions of the parties, and the presumption, if any there be, is
that breach or default in any material term of a contract between
men of business amounts to default in the whole." - But this
was not so clearly the attitude of the court in the sixteenth and
seventeenth centuries. The rules on this subject were still im-
plicated with, and influenced by, the forms of action by which
contracts were enforced ; and though, no doubt, the courts
attempted to ascertain the intention of the parties, both the
procedural rules, and the tendency, which has already been noted
in dealing with the interpretation of conveyances,3 to lay down
rigid rules of construction, combined to make the law on this
topic one of the most technical and least satisfactory parts of the
law of contract.
As the growth of the law on this topic during this period
was largely influenced by the development of the forms of action,
I shall consider, firstly, the rules which grew up in the spheres
of debt and covenant, and their modification when they came to
be applied in the sphere of assumpsit ; and, secondly, the rules
which originated in the need to distinguish the spheres of special
assumpsit and assumpsit on a quantum meruit*
(i) The rules which grew up in the spheres of debt ami
covenant, and their ?nodification when they catne to be applied in
the sphere of assumpsit.
We have seen that the right to bring an action of debt was
conditional upon the gift of a thing or the doing of an act by
1 Pollock, Contracts (gth ed.) 280.
2 Ibid 279. * Vol. vii 392-394.
* For an account of the sphere of these different forms of action see vol. iii 417-
426, 428, 429 seqq., 446, 447.
72 CONTRACT AND QUASI-CONTRACT
the plaintiff, which would be regarded as quid pro quo for the
defendant's promise; and that, except in the case of the contract
of sale of goods, a mere promise to give or perform was not a
sufficient quid pro quo.1 It followed that the plaintiff could not
recover unless he had performed his side of the bargain ; and
we have seen that the same rule resulted from the conditions
under which, at the beginning of the sixteenth century, the action
of assumpsit lay for nonfeasance in breach of an undertaking;
for, till assumpsit was extended to remedy the breach of wholly
executory contracts, the detriment suffered by the plaintiff on
the faith of the defendant's promise must have been actually
incurred.2 On the other hand, in the case of the contract of
sale of goods, the duty to pay and the duty to transfer were
regarded as independent obligations, so that each could sue
the other for failure to perform, whether or not he had fulfilled
his part of the bargain — "contracts of debt," as Vaughan, C.J.,
said, "are reciprocal grants."3 The same reasoning was applied
to the reciprocal covenants of the parties in a contract under
seal. This fact is illustrated by the case of Ware v. Chappel.*
Ware had by deed covenanted with Chappel that he would
provide five hundred soldiers and bring them to a certain port,
and Chappel had covenanted to provide shipping and victual
for them. Ware sued Chappel for not providing the shipping
and victual at the appointed time, and Chappel pleaded that
Ware had not raised the soldiers at that time. Rolle, C.J.,
held that this plea was no answer to the action, because " they
are distinct and mutual covenants, and there may be several
actions brought for them." He then pointed out that Chappel had
his remedy against Ware if he raised not the men, as Ware had
against Chappel for not providing the shipping. Under these
circumstances it is not surprising to find that the mutual promises
which, at the end of the sixteenth century had come to be
enforceable by assumpsit, were treated in the same way. This
fact is illustrated by the case of Gower v. Capper (i 597).5 In
that case the defendant owed the plaintiff ^20. The defendant,
in consideration of a promise to deliver up the bill evidencing
the debt, promised to give two sufficient sureties for the payment
of the £20. The plaintiff sued the defendant, alleging that he
had delivered up the bill, but that the defendant had broken
his promise by producing two worthless sureties. The defendant
pleaded that the plaintiff had not delivered up the bill. The
plaintiff demurred, and judgment was given for him, " for the
1 Vol. iii 420-423. 2 Ibid 441, 442.
3 Edgcomb v. Dee (1670) Vaughan at p. 101.
4 (1649) Style 186. 6 Cro. Eliza. 543.
ENFORCEMENT 73
alleging that he had delivered the bill was but surplusage; for
the consideration was the promise to deliver it ; . . . a promise
against a promise is a sufficient ground for an action." The
same rule was applied in other seventeenth-century cases.1
But these were only prima facie rules. The courts were
always willing to give effect to any expressions used by the
parties which indicated, or seemed to indicate, their intentions
as to the order in which the mutual undertakings of the parties
were to be performed. If it could be gathered that the per-
formance by one was a condition precedent to performance by
the other, the other could resist an action until performance had
been made.2 On the other hand, if performance by one was
not a condition precedent, each could sue the other, whether or
not he had performed his part of the agreement.3 In the first
case the promises were said to be dependent, and in the second
independent But the rules applied to determine whether, in
any given case, a promise was dependent or independent, were
so technical and artificial that it was almost impossible to deduce
from them any certain principle.* As Williams says, after citing
a number of sixteenth and seventeenth century cases, "the judges
in these cases seem to have founded their construction of the
independency or dependency of covenants or agreements on
artificial and subtle distinctions, without regarding the intent
and meaning of the parties."5 As usually happens in these
cases, the ingenuity of the judges resulted in the establishment
of a number of very artificial rules of construction, which hindered
rather than helped the elucidation of the intention of the parties
in any given case.6 They had an effect upon the interpretation
of the duties of the parties to a contract similar to the equally
artificial rules for the interpretation of conveyances, which those
same judges were constructing at this period7
In fact, so long as the judges considered that the promises
to be performed by the two parties to a contract must be either
1 Pordage v. Cole (1669) 1 Wms. Saunders 319, and the cases cited in the note
thereto.
1 Rogers v. Snow (1573) Dal. 94 ; Brocas's Case (1588) 3 Leo. 219 ; Everard v.
Hopkins (1615) 1 Rolle Rep. at p. 125 per Coke, C.J. ; Spanish Ambassador v. Gifford
(1616) 1 Rolle Rep. 336 ; Trench v. Trewin (1697) 1 Ld. Raym. 124.
3 Nichols v. Raynbred (1615) Hob. 88 ; and see the cases from 1 Rolle Rep.
cited in the last note.
4 " Almost all the old cases, and many of the modern ones on this subject,
are decided on distinctions so nice and technical, that it is very difficult, if not
impracticable, to deduce from them any certain rule or principle by which it can
be ascertained what covenants are independent, and what dependent," 1 Wms.
Saunders 320 n.
8 ibid.
•For these rules see ibid; Thorpe v. Thorpe (1702) 1 Ld. Raym. at pp.
664-667 ■ ; and the notes to Cutter v. Powell 2 S.L.C. (10th ed.) 10-16.
7 Vol. vii 394.
74 CONTRACT AND QUASI-CONTRACT
dependent or independent, it was really impossible to avoid hard-
ship. It was as hard on a plaintiff to force him to perform as
a condition of recovery, as it was on a defendant to require him
to perform in spite of the plaintiffs failure to perform.1 It was
only natural that, while the law was in this state, the arguments
of plaintiffs and defendants should be directed chiefly to this
simple point of proving dependency or independency ; and that,
as cases argued on these lines accumulated the rules as to what
promises were dependent and what independent should grow
more and more subtle and unsatisfactory. It is clear, too, that,
so long as the question was regarded from this point of view, it
was difficult to decide in accordance with the substantial merits
of the case, and to give effect to the real intentions of the parties
to any given contract. Thus, for instance, it is difficult to see
how any effect could be given to such defences as fraud or mis-
representation. If the promises were dependent, a plaintiff,
though defrauded, could not hope to recover unless he could
prove performance ; and if they were independent, the fact that
he had defrauded the defendant would be no answer to his action.
At the beginning of the eighteenth century the courts began
to perceive that it was impossible to class all stipulations in
contracts as dependent or independent. They began to see that
in many cases contracts consisted of "mutual conditions to be
performed at the same time " 2 — in other words, that conditions
might be concurrent This was recognized in 17 14, in the case of
Tumor v. Goodwin? where there was a contract to pay money for
the assignment of a judgment debt. Parker, C.J., said,4 "the
question is whether the plaintiffs assignment be the first act to be
done or not. This differs fiom the other cases where the time and
the consideration are mentioned. The defendant would have
assigning to be first assigning, and the plaintiff would have it
assigning . . . after payment. We are all of opinion that there
is one way which will solve all these difficulties, and that is the
assignment shall neither precede nor wait, but shall accompany
the payment, and both to be done at the same time. . . . The
money is here his security till the assignment ; though the money
be told over by the defendant and plaintiff, yet it remains the
defendant's money, and the plaintiff cannot justify the taking it
though laid on the table. On the other hand, the moment he has
delivered the assignment, the property of the money is altered. . . .
'Tis like buying of goods, this money is yours if you deliver to
1 Street, Foundations of Legal Liability ii 136 ; Mr. Street at pp. 132-140
has given a good account of this branch of the law to which I am much indebted.
'JThis is the expression used by Lord Mansfield, C.J., in Kingston v. Preston
(1772), cited in Jones v. Barkley (1773) 2 Dougl. at p. 691.
3 Fortescue 145. 4 At pp. 149-150.
ENFORCEMENT 75
me this watch ; the money is his if he deliver the watch, if not 'tis
otherwise."
To these concurrent conditions neither the rules applicable to
dependent, nor those applicable to independent promises, were
applicable. It was therefore laid down that in these cases, " if one
party was ready and offered to perform his part, and the other
neglected or refused to perform his, he who was ready and offered
has fulfilled his engagement, and may maintain an action for the
default of the other ; though it is not certain that either is obliged
to do the first act"1 This tended to diminish the importance of
the older cases, which laid down rules as to when the promises of
the parties were dependent, and when they were independent It
became more possible to pay attention to the real intention of the
parties to the contract ; and to develop rules as to their respective
rights and duties, based upon their performance of or failure to
perform their contract When, therefore, towards the close of the
eighteenth century, the rules as to the method of treating these
concurrent conditions in a contract were settled, the courts began to
see that the older rules as to when a condition or promise should
be treated as dependent and when as independent, were too rigid
and technical ; and they therefore began to lay it down that these
matters must be decided by " the good sense of the case." - In
other words, the expressions used by the parties to a contract must
be construed in order to discover their intentions, and effect must
be given to the intention thus discovered. With the adoption of
this changed attitude by the courts of law, the modern history of
this branch of the law begins.
(2) TJie rules which originated in the need to distinguish the
spheres of special assumpsit and assumpsit on a quantum meruit
We have seen that these two branches of the action of assumpsit
became distinct in the course of the seventeenth century, and that
practical consequences were drawn from these differences.3 Thus
we have seen that it was settled in 1696 that indebitatus assumpsit
would only lie where a debt had been incurred, and that therefore
it would not lie on an executory contract where a promise was
consideration for a promise.4 It followed that if two parties made
1 Kingston v. Preston (1773) 2 Dougl. at p. 691.
s " In ordinary cases of this kind the work is to be done before the wages are
earned ; but those cases do not apply to the present, where both the acts are to be done
at the same time. Speaking of conditions precedent and subsequent in other cases
only leads to confusion. In the case of Campbell v. Jones, I thought, and still continue
to be of that opinion, that whether covenants be or be not independent of each other,
must depend on the good sense of the case, and on the order in which the several
things are to be done," Morton v. Lamb (1797) 7 T.R. at p. 130 per Lord Kenyon, C.J.
5 Vol. iii 446-447.
4Bovey v. Castleman 1 Ld. Raym. ot,; Smith v. Aiery (1705) 6 Mod. 128.
76 CONTRACT AND QUASI-CONTRACT
a contract, and the performance of one was a condition precedent
to payment by the other, the former could not sue the latter either
by action of debt or indebitatus assumpsit, or by action of special
assumpsit, if he could not allege and prove performance. He could
not sue by action of debt or indebitatus assumpsit because the
debt was not incurred. Thus when A was employed by B to
collect his rents, and B promised to pay him ^iooa year, and B
died after A had acted for three quarters of a year, it was held that
A could recover nothing from B's executor by action of debt.1 It
is clear also that he could recover nothing by special assumpsit,
because the promise to pay was in consideration of his service for
a year, and such performance he could not allege. He could only
have recovered the value of his services if the testator had wrong-
fully broken his contract ; for in that case the special contract
would not be in existence, and he would therefore have been in the
position of one who had done something of value for another, not
under or in fulfilment of a special contract. In such a case the
law would have implied a promise to pay what his services were
reasonably worth, for which he could have sued by indebitatus
assumpsit on a quantum meruit.2
These rules as to the conditions under which special assumpsit
and assumpsit on a quantum meruit lay, gave rise to the rule,
which was clearly laid down in 1795 in the case of Cutter v.
Powell.* In that case the defendant promised to pay a sailor thirty
guineas, if he " proceeded continued and did his duty" as second
mate on a voyage from Jamacia to Liverpool. He died on the
voyage, and it was held that his representatives could not recover
on a quantum meruit. " That where the parties," said Lord
Kenyon, C. J., " have come to an express contract none can be
implied, has prevailed so long as to be reduced to an axiom in
the law."4 This is still the law, if it is clear that no payment is
due till the whole of the consideration for that payment has been
performed.5 But the need to distinguish between cases of this
kind, to which the rule applies, and cases in which the parties
have varied their contract, or have in fact accepted something
not quite in accordance with it, have given rise to many compli-
cated rules, and to " distinctions more than usually fine." 6
The circumstances under which the special contract is re-
scinded, so that a person who has performed services under it is
entitled to sue on a quantum meruit, falls under the next follow-
ing topic — discharge of contract.
1 Countess of Plymouth v. Throgmorton (1688) 1 Salk. 65.
2 Vol. Hi 447. :i 6 T.R. 320. 4 Ibid at p. 324.
5 Pollock, Contracts (9th ed.) 285. 6 S.L.C. (10th ed.) 16 seqq.
DISCHARGE 77
Discharge
The three ways in which contract may be discharged, with
which I propose to deal, are, breach ; performance or the tender
thereof; and agreement
(i) Breach.
It follows from what has been already said as to the enforce-
ment of contracts, that the modern rules applicable to the breach
of contract by failure of performance, were not ascertained during
this period. If the promises of the two parties were independent
of each other, failure of performance by one was not a discharge
of the other's obligation. If they were dependent, the plaintiff
must prove performance on his side, and it was only then that he
could sue for damages if the other party failed to perform. In
such a case there could be no question of the right of the plaintiff
to rescind the contract, according to whether the failure of per-
formance went to the root of the contract or not, for he had
already performed his side of the contract. When, however, it
came to be recognized that, where the promises of the two parties
were concurrent, either might sue on proof that he was ready and
willing to perform, the question arose whether or not any given
failure gave the right to rescind the whole contract, or whether it
did not give such a right ; but only gave a right to sue for such
damages* as had been sustained by the failure. It is in this
connection that, in the eighteenth and nineteenth centuries,
the modern distinctions between conditions, and warranties, and
warranties ex post facto, grew up. These expressions were used,
often inconsistently, to express the differences between those terms
in a contract failure to perform which gave rise to a right to
rescind, those terms which did not give this right, and those terms
which would have given such a right if their breach had not been
acquiesed in.1
But failure to perform a contract may arise from many
causes. It may be due, for instance, to fraud or misrepresenta-
tion ; and we have seen that one of the older remedies for a
fraudulent misstatement, which induced a contract, was an action
in tort on a warranty, if an express warranty had been given at
the time of the making of the contract2 We have seen, too, that,
in the eighteenth century, the scope of this remedy was enlarged
by the growth of the conception of an implied warranty ; and that
it was recognized that false or fraudulent misstatements which in-
duced a contract might be remedied by an action on the contract.3
1 Anson, Contracts (12th ed.) 330-337.
3 Above 68. 3 Above 68-70.
78 CONTRACT AND QUASI-CONTRACT
In effect, the result of such misstatements was a total or partial
failure of performance ; and thus it comes about that, in our
modern law, the effect of fraud upon a contract is treated in much
the same way as the breach of a condition which amounts to total
failure of performance, and gives a right to rescind ; while non-
fraudulent misrepresentation is treated, according to the nature of
the fact or facts misrepresented, either as the breach of a condition
which amounts to total failure of performance and gives a right to
rescind, or as the breach of a warranty which amounts to a partial
failure of performance, and gives only a right to get damages as
compensation for its breach.
Other cases of failure of performance, which cause a breach
of contract, are a refusal to perform, or impossibility of performance
created by one of the parties to the contract. It was recognized
in this period that both put an end to the contract, and gave the
party injured the right to sue for damages for its breach. That
a refusal to perform a contract amounts to a breach is an obvious
truism. That it was recognized as a truism can be seen from the
case of Lea v. Exelby} In that case the defendant was possessed
of a lease for years, and the plaintiff owned the reversion upon it.
The plaintiff promised to pay the defendant a sum of money, and
the defendant promised, on payment, to surrender the lease. The
plaintiff sued the defendant, alleging that he had tendered the
money and that the defendant had not surrendered. It was held
that the plaintiff could not recover, because he ought to have
alleged, either that he had paid the money, or that he had both
tendered the money and that the defendant had refused it. It
was the refusal which constituted the breach of the contract for which
he was suing ; and as refusal had not been alleged, no cause of
action arose. That impossibility of performance created by the
act of one of the parties to a contract amounts to a breach of the
contract is illustrated by the case of Hulbert v. Watts? where the
contrast between impossibility so occasioned, and that occasioned
by the act of God, is expressly noted.
(2) Performance or the tender thereof.
Performance may take the form either of doing an act or of
making a payment. The act promised must be completely per-
formed in order to discharge the duty under the contract ; and
this was a rule frequently applied in cases where performance was
a condition precedent to the right to enforce the fulfilment of the
promise of the other party. Thus in 1619 a judgment for a
plaintiff was arrested, because he failed to show complete per-
1 (1602) Cro. Eliza. 888. 2 (1697) 1 Ld. Raym. H2.
DISCHARGE 79
formance of his duty under the contract.1 A payment was com-
plete, so that the money was at the risk of the payee, as soon as
he had accepted the coins ; 2 and it was a valid payment if the
money paid was legal tender, even though its value had been de-
preciated by the act of the crown, so that in that case the payee
must stand the loss.3 One of the rules as to payment illustrates
a further advantage which assumpsit had over debt. If money
was to be paid in instalments spread over a fixed period, debt
would not lie for the non-payment of each instalment as it came
due, but it could only be brought at the end of the period, " because
all is but one contract." 4 On the other hand, assumpsit lay for
each instalment as it came due. Whether or not repeated actions
could be brought for each instalment as it came due, or whether,
when once the action had been brought, the plaintiff lost all
further right of action, was a matter upon which the courts were
much divided.5 There was at first a tendency to accept the latter
view, and consequently to rule that the plaintiff, on the defendant's
failure to pay any one instalment, could get damages for non-
payment of the entire debt6 But the other and the more sensible
view was adopted in 167 1." It was then settled that, "the action
might be brought for such sum of money only as was due at the
time of bringing the action, and the plaintiff should recover
damages accordingly ; and when another sum shall become due,
the plaintiff may commence a new action for that also, and so
to ties quo ties."
Tender, or attempted performance, may take the form either
of a tender of goods or of money. At the beginning of the six-
teenth century a plea of tender did not discharge a defendant, un-
less he pleaded, not only that he had offered to convey or pay, but
also that he was still ready to do so.8 But, when Coke wrote, the
law had been modified. The old rule was still applied to the tender
cf money ; and this is still the law ;9 but in the case of the tender
of goods it was sufficient to plead that the goods had been offered,
without pleading that the defendant was still ready to deliver.10
1 Leneret v. Rivet, Cro. Jac. 503.
2 Canter v. Shepheard (1699) 1 Ld. Raym. 330.
3 Pong v. Lindsay (1553) Dyer 82a.
4 " If I sell you anything for £100 to be paid £20 per ann. in 5 years, I shall not
have an action for debt till all the years be incurred, because all is but one contract,"
Foord's Case (1595) 5 Co. Rep. at f. 81b ; cp. Rudder v. Price (1791) 1 H. Bl. 547 ;
a good historical summary of this topic will be found in Lord Loughborough's judg-
ment in the last cited case.
5 In Pecke v. Redman (1556) Dyer 113 the judges were divided on the question.
6 Beckwith v. Nott (1619) Cro. Jac. 504 ; but the contrary view was taken in
Milles v. Milles (1632) Cro. Car. 241.
7 Cooke v. Whorwood 2 Wms. Saunders 337.
8 Brikhed v. Wilson (1537) Dyer 24b. » Anson, Contracts (12th ed.) 314.
10 *' If an obligation of an hundred pound be made with condition for the payment
of fifty pounds at a day, and at the day the obligor tender the money, and the obligee
80 CONTRACT AND QUASI-CONTRACT
The effect of successfully pleading a tender of money was that
the plaintiff could only recover the amount tendered ; x and, in
Coke's day, if he refused it in court and took issue on the tender,
and it was found against him, he lost the money for ever.2 On
the question what would amount to a valid tender the law had
already acquired a number of detailed rules, principally in connec-
tion with the payment of rent. These rules were summarized by
Coke in Wades Case,3 and they are the basis of the modern law.
(3) Agreement.
We have seen that English law has substantially accepted the
Roman rule, repeated by Bracton, that a contractual obligation
must be dissolved by the same formalities as those by which it
was made.4 As in English law the two formalities needed for
making an agreement actionable are either a writing under seal, or
a consideration, it follows that an agreement to discharge a con-
tract must comply with one of these two forms. But the law has
been to some extent complicated, firstly, by the fact that the con-
tract under seal has always been regarded as a contract of a superior
sort to the simple contract, so that, though a contract under seal
can discharge a simple contract, the converse is not true ; and,
secondly, by difficulties in applying the doctrine of consideration
to the discharge of simple contracts — difficulties which have, to a
large extent, been caused by the gradual growth of that doctrine,
and the difficulty of reconciling it, in its developed form, with
earlier rules as to the discharge of simple contracts by agreement.
1 shall therefore, in the first place, deal with the operation of the
contract under seal in discharging a contract ; and, in the second
place, with the operation of a simple contract. Lastly, I shall say
something of a method of discharge which the growth of the simple
executory contract made possible — the novation.
(i) The operation of a contract under seal in discharging a
contract.
It was well settled in the sixteenth century that a release under
seal would discharge either a contract under seal, or a simple con-
tract. Thus Coke in Pinnel's Case could cite Year Book authority
for the proposition that an acknowledgment of satisfaction by a
refuseth the same, yet in action of debt upon the obligation, if the defendant plead
the tender and refusal, he must also plead that he is yet ready to pay the money and
tender the same in Court. ... If a man be bound in 200 quarters of wheat for de-
livery of 100 quarters, if the obligor tender at the day 100 quarters, he shall not plead
uncore prist, because albeit it be parcel of the condition yet they be bona peritura% and
it is a charge for the obligor to keep them," Co. Litt. 207a.
1 Pong v. Lindsay (1553) Dyer 82a, b. 2 Co. Litt. 207a.
3(r6oi) 5 Co. Rep. 114a. ' 4 Vol. u 277 find n. 10.
DISCHARGE 81
deed would discharge a contract under seal, though nothing had
been received in satisfaction ; 1 and Croke, in the case of Acton v.
Symon,2 differing from Berkley, J., laid it down that, if the two
parties to a simple contract afterwards made a contract under seal
to the same effect, the simple contract was discharged.3 The fact
that the law has always given effect to the lawful intentions of the
parties to a writing under seal, and the fact that such a writing
is regarded as superior to a mere parol contract or contract made
by unsealed writing, has prevented any question arising as to the
efficacy of this mode of discharging any contract. We shall now
see that the fact that the law, from these two points of view, treated
simple contracts very differently, has resulted in raising many diffi-
cult questions as to their operation in discharging such contracts.
(ii) The operation of a simple contract in discharging a con-
tract.,4
In the first place, a simple contract cannot discharge a contract
under seal. Coke's assertion, that "it appears by all our books
that neither arbitrament nor accord with satisfaction is a plea when
the action is grounded on a deed," 5 was well warranted by the
earlier authorities.6 In fact, as we have seen, the strictness with
which the law adhered to the view that, even payment was no
discharge of an obligation under seal, without a formal release,
was, in the Middle Ages, a frequent cause of applications to the
chancellor." Apparently there was some disposition to relax this
strictness at the beginning of the sixteenth century ; s but it did not
go far, as, shortly afterwards, the rule approved of by Coke was
1 " If a man acknowledge himself to be satisfied by deed, it is a good bar, without
anything received," Pinnel's Case (1602) 5 Co. Rep. at f. 117b, citing Fitzherbert Ab.
Barre pi. 37 (26 Hy. VI.).
2 (1636) Cro. Car. 414.
*M Berkley said, if one borrow money, and promise to enter into bond to pay it
at a day to come, and promise that he will keep his day of payment, and afterwards
he makes an obligation for the payment of this money at the day, if he fail of the pay-
ment, debt may be brought against him upon the obligation, and he may also maintain
an action of the case upon the promise ; but I denied it, because the obligation deter-
mines the contract," ibid at p. 415.
4 See generally Street, Foundations of Legal Liability ii 88-95.
5 Blake's Case (1606) 6 Co. Rep. 43b.
•Y.BB. 45 Ed. III. Hil. pi. 9; 1 Hy. V. Trin. pi. 1 (p. 7) per Hals. ; 1 Hy. VII.
Pasch. pL 1 (p. 14) where Vavisor says, " in nul cas on ne poit voider un obligation
sans especialty de aussy haut nature que le fait est"; Anon. (1513) Dyer ia. By
"arbitrament " Coke means the judgment of arbitrators, which, as Mr. Street says, op.
cit ii 91, "created a duty in the nature of debt like the judgment of a court"; it
therefore operated, like an accord and satisfaction, to discharge a simple contract, see
below 84 n. 4.
7 Vol. v 292.
8,1 Now in an action of debt (on an indenture) brought for the forty pounds;
whether the defendant can plead payment of the twenty pounds without an acquit-
tance or not ? And it seemed to Spelman Fitzherbert and Shelley that he cannot.
Yet quare, for there are many precedents to the contrary," Anon. (1535) Dyer 6a.
VOL. VIII.— 6
&2 CONTRACT AND QUASI-CONTRACT
laid down in argument, and apparently acceded to by the court.1
One mitigation of the strictness of this principle was, however,
established in Blake 's Case. It was settled that if the cause of
action was not solely on the deed to recover the money due under
it, but to recover unliquidated damages for the breach of some
other duty, accord and satisfaction was a good discharge ; " for
the action is not merely grounded on the deed, but also on the
deed and the wrong subsequent." 2
In the second place, if a simple contract was still executory it
could be discharged by the simple agreement of the parties. " If
I promise to J.S.," said Dodderidge, J., in 1616,3 "that if he build
a house upon my land before Michaelmas, I will pay him a hundred
pounds, and I countermand it before he hath done anything con-
cerning the house, it is a good countermand " ; for, as was said in
Langden v. Stokes,4" a promise made verbally may be discharged
by words before breach, or, as Coke put it in Peytoe's Case,5 "as a
contract upon consideration may commence by word, so by agree-
ment by word for any valuable consideration it may be dissolved."
In the third place, although the doctrine of consideration as
thus applied to the discharge of contracts, allowed that an agree-
ment to discharge an executory contract was good, because the
promise of the one party to discharge was consideration for the
promise of the other ; the same reasoning made it necessary to
deny the validity of a mere agreement to discharge, if it was made
by a person who had fulfilled his duty under the contract. There
could be no consideration for such an agreement, unless the party
to be discharged had given some consideration for the promise to
discharge him. In the days when a wholly executory contract
was unknown, it is clear that this consideration for a promise to
discharge must have been executed ; for, as we have seen, neither
debt, nor, in its earlier days, assumpsit, lay, unless the party suing
had performed his part of the agreement. Therefore the rule was
laid down many times in the Middle Ages, and repeated in the
sixteenth century, that it was only an accord and satisfaction which
would discharge a contract, or any other obligation, to which the
party making the accord was already liable.6 The rule and its
1 " In a writ of annuity payment is plea if it be granted out of the land, otherwise
not. And although the truth be that the plaintiff is paid his money, still it is better to
suffer a mischief to one man, than an inconvenience to many, which would subvert a
law; for if matter in wiiting may be so easily defeated and avoided by such surmise
and naked breath, a matter in writing would be of no greater authority than a matter
of fact," Waberley v. Cockerel (1542) Dyer at ff. 51a, 51b.
2 6 Co. Rep. at f. 44a.
3 Hurford v. Pile, Cro. Jac. 483 ; cp. Treswaller v. Keyne (1622) Cro. Jac. 620.
4 (1635) Cro. Car. 383. 6 (1612) 9 Co. Rep. at f. 79b.
6 Street, op. cit. ii 90-91, and the Y.BB. there cited ; Coke summed up their effect
when he said in Peytoe's Case, (1612) 9 Co. Rep. at f. 79b, " Every accord ought to be
full perfect and complete : for if divers things are to be performed by the accord, the
performance of part is not sufficient, but all ought to be performed."
DISCHARGE 83
reasons are clearly stated in the following passage in the Doctor
and Student : * — " Doctor. And if a man promise to give another
xl /*' in recompence for such a trespass that he hath done him, lyeth
an action there? Student. I suppose nay, and the cause is for
that such promises be no perfect contracts ; for a contract is pro-
perly where a man for his money shall have by assent of the other
partie certain goods or some other profit at the time of the contract
or after : but if the thing be promised for a cause that is past by
way of recompence, then it is rather an accord than a contract
But then the law is that upon such accord the thing that is
promised in recompence must be paid, or delivered in hand, for
upon an accord there lyeth no action." It followed that, if a sum
of money was due under a contract, an agreement to pay a lesser
sum followed by payment would be no accord and satisfaction,
because a payment of a lesser sum, when a larger sum was due,
was, as we have seen,2 no consideration. It was only if the agree-
ment was to do something else in satisfaction, and that something
was performed, that there was an accord and satisfaction which
would discharge the contract ; and these principles are still part
of the law.3
So long as only those contracts were actionable which were
based on a executed consideration, these rules were a logical
application of the doctrines of quid pro quo, and of consideration
as then accepted, to the discharge of contracts. But we have seen
that, at the end of the sixteenth century, wholly executory con-
tracts became actionable ; and that in that case the promise of the
one party was accepted as being the consideration for the counter-
promise by the other.4 Logically this extension of the doctrine
of consideration should have affected the law as to accord and
satisfaction. If a promise for a promise is a good consideration
for making a contract, a promise to pay or do anything should be
a sufficient consideration for a promise to discharge.3 This view
seems to have been taken in 1602 in the case of Goring v. Goring ; 6
and it was specifically approved in 1681 in the case of Case v.
Barber? "Of late," it was said in argument, "it hath been held
that upon mutual promises an action lies, and consequently there
being equal remedy on both sides an accord may be pleaded with-
out execution as well as an arbitrament, and by the same reason
that an arbitrament is a good plea« without performance."8 "To
which the court agreed ; for the reason of the law being changed,
1 Bk. II. c. 24. a Above 20, 40.
•Anson, Contracts (12th ed.) 346. «Vol. iii 444-445.
6 Street, op. tit. ii 91-92. «(i6o2) Yelv. 11 ; above 41.
7T. Raym. 450.
8 For arbitrament see above 81 n. 6 ; the reason was not the same, see Allen v.
Harris (1697) 1 Ld. Raym. 122, cited below 84 n. 4.
84 CONTRACT AND QUASI-CONTRACT
the law is thereby changed ; and anciently remedy was not given
for mutual promises, which is now given." This is accepted as
good law by Comyns ; 1 but how far it represents modern law is
perhaps a little uncertain.
There are undoubtedly a large number of cases which lay it
down in uncompromising terms that it is only an accord and satis-
faction which will discharge a contract.2 This is due to several
causes. To a large extent it is due, as Mr. Street has pointed out,3
to the fact that, as such agreements generally embody concessions
to debtors, they are generally made with a view to performance,
and not to the obtaining of a counter-promise from the debtor,
which may very likely only lead to fresh litigation. But it is also
due to two other causes of a technical kind. In the first place, it
is due to the weight of authority which came from a time before
the enforceability of wholly executory contracts was recognized.
The rule that an accord without satisfaction was no discharge had
hardened into a fixed rule of law ; its basis in a rudimentary stage
of the history of consideration was forgotten ; and the judges there-
fore failed to adapt it to the new developments of that doctrine.4
In the second place, it was due to the great obscurity which long
hung, and still to some extent hangs, about the law as to the status
of promises to do what the promisor is already bound to do.5 But
if it is admitted that a promise by A to B to perform his contractual
duty to C is a valid consideration for a counter-promise by B to
A, it is difficult to see why a promise by A, who is liable to B,
under his contract with him, to do something for B, should not be
a good consideration for a promise by B to discharge A. And,
though payment of a lesser sum when a larger sum is due is
certainly not a discharge,6 it may well be that a promise to pay a
lesser sum may be a valid consideration for a promise of discharge.7
1 Digest, Accord B 4, cited above 22-23.
2 Thus Tindal, C.J., laid it down in Bayley v. Homan (1837) 3 Bing N.C. at pp.
920-921 that 'a plea of accord to be a good plea must show an accord which is not
executory at a future day, but which ought to be executed and has been executed before
action brought " ; after citing many cases to this effect, he said, " we think this current
of authority is too strong to be met by the doubts expressed by the court in Case v.
Barber" ; see also the cases cited 1 S.L.C. (roth ed.) 336.
3 Op. cit. ii 93.
4 Thus in Allen v. Harris (1697) 1 Ld. Raym. at p. 122 the court said, " if arbitra-
ment be pleaded with mutual promises to perform it, though the party has not performed
his part who brings the action, yet he shall maintain his action ; because an arbitrament
is like a judgment and the party may have his remedy upon it. But upon accord no
remedy lies. And the books are so numerous, that an accord ought to be executed,
that it is now impossible to overthrow all the books. But if it had been a new point it
might be worthy of consideration."
6 Above 23-24, 41. 6 Above 40.
7 As it is said in 1 S.L.C. (10th ed.) 336, " the rational distinction seems to be, that
if the promise be received in satisfaction, it is a good satisfaction ; but if the perform-
ance, not the promise, is intended to operate in satisfaction, there will be no satisfaction
without performance," cp. Edwards v. Hancher (1875) 1 C.P.D. in where the pos-
sibility of a promise, if received in satisfaction, being a valid discharge seems to be
admitted ; and see the other cases cited 1 S.L.C 336.
DISCHARGE 85
Whether this is so or not is not yet settled. But there is a little
authority in favour of this view ; ! and it is to some extent supported,
firstly, by some of the not very satisfactory reasons given for uphold-
ing the validity of a composition with creditors ; 2 and, secondly, by
the rule that the gift of a negotiable instrument for a lesser sum
than an existing debt is a good consideration for a promise to dis-
charge that debt,3 for a negotiable instrument embodies a promise
to pay, to which peculiar incidents are annexed by the law
merchant4
(iii) The novation.*
The name novation is Roman ; but the institution, as recog-
nized by the common law, is, as Ames has said, of English growth.
The Roman novation in Justinian's time was effected through the
stipulation ; but the common law never recognized a contract of
this kind ; and therefore the English novation was evolved without
reference to it, when the development of the English contract
system had reached the stage at which this evolution was possible.
In the mediaeval period no such contract was possible. This
is illustrated by a case of the year 1432,6 in which an unsuccessful
attempt was made to induce the court to admit its validity. In
that case Rolf argued in effect that, if B is indebted to C for £20,
and A is indebted to B for a like amount, and " A grants to C to
pay C the £20 which A owes, and that B shall be discharged
of his debt to C, and C agrees to this, and B also, A shall now be
charged to C for this debt by his contract and own act." But
Cotesmore, J., and the whole court denied this, "for although all
three are agreed that A shall pay this debt for B, still B is not
discharged of his debt in any manner." This decision was inevit-
able in the then state of the law. As Ames has pointed out, B
could be discharged of his liability to C only by release under seal,
or by accord and satisfaction ; while A could be made liable on
1 Last note.
sSee Good v. Cheesman (1831) 2 B. and Ad. at p. 325, where Parke, J., cites the
passage from Comyns's Digest Accord B4 (above 22-23). As Ames says, Lectures
on Legal History 334-335, most of the reasons given to reconcile this decision with the
rule that payment of part of a debt is no consideration for a discharge are futile ;
really there are two contracts in such a composition : (1) between the debtor and his
creditors, the debtor promising to hand over certain property, and the creditors pro-
mising to release him when the property is handed over to a trustee for them ; and (2)
between the creditors, each promising only to exact a quota of his debt in consideration
of the others promising to do the like ; it seems to me that the only way in which the
validity of the first of these contracts can be upheld is by saying that the debtor's new
promise is something different from his existing obligation to each creditor.
3 Goddard v. O'Brien (1882) 9 Q.B.D. 37.
* For the history of negotiable instruments see below 113 seqq.
5 See generally Ames, Lectures on Legal History 298 seqq ; Street, op. cit. ii 122
seqq.
8 Y.B. 11 Hy. VI. Pasch. pi. 30 (p. 38) ; Ames, op. cit. 298-299 ; I have cited the
translation given by Ames.
86 CONTRACT AND QUASI-CONTRACT
his contract to pay C only by action of debt ; and to an action of
debt at the suit of C he could not be liable, because he had received
no quid pro quo from C. " The two essential features of a novation
— namely the extinguishment of the original obligation, and the
creation of a new one in its place — were therefore both wanting in
the case supposed. In other words, novation by simple agreement
of the parties was at that time a legal impossibility." *
When, however, it was recognized at the close of the sixteenth
century, that an executory contract based on the mutual promises
of the two parties was enforceable by assumpsit, the legal im-
possibility began to disappear. In 161 1, in the case of Flewellin
v. Rowe? A owed money to C, and B owed money to A. It was
agreed by all three that B, to discharge his debt to A, should
hand over certain goods of his own to C, and that C should take
them in discharge of A's debt to C. B did not hand over the goods,
but converted them to his own use. C thereupon brought trover
against B ; and it was held that he was entitled to recover. The
court treated it as, in effect, similar to the case where one has
promised to bail goods to another to the use of a third. Just as
the third person had a right of action in such a case to redress the
wrong done to him, so here, C had suffered a similar wrong for
which he ought to have his action.3 This case, therefore, shows
that by the somewhat roundabout method of an action of conver-
sion effect could be given to a novation.
The case of Roe v. Haugh (1697)4 marks a later stage in the
history of the novation, and indicates the beginning of modern theory
upon which such an arrangement rests. In that case B owed A
£42. C, in consideration that A would accept him as his debtor
for the £<\2 due from B, undertook to pay the ^42 to A. C,
having failed to pay, an action was brought against him ; but, as
the declaration had not alleged that A had promised to discharge
B, no consideration for C's promise was apparent. On this ground
three judges — Blencowe and Powell, JJ., and Ward, C.B. — thought
that C was entitled to judgment ; but four — Powys and Lechmere,
BB., Nevil, J. and Treby, C.J. — held that, as a verdict had been
found for the plaintiff, " they should do what they could to help it ;
1 Ames, op. cit. 299. 2 1 Bulstr. 68.
3 " Notwithstanding the third person here to whom the goods ought to have been
bailed had never the possession of them, yet this conversion and nonfeasance of that
which he ought to have done, is a wrong and very prejudicial to C the third person. And
for this wrong and prejudice he may have his action upon the case. . . . The whole
court also clearly agreed in this — that this not bailing over, and delivery of the goods
by B the first bailee unto C in satisfaction of the debt to A, and according to the
agreement made between A and B, that this doth clearly amount in law to make a
conversion. And that by this, he hath made himself subject and liable to an action to
be brought by the party to whom he should have delivered the goods," ibid.
4 12 Mod. 133 ; S.C. 1 Salk. 29.
DISCHARGE 87
to which end they would not consider it only as a promise on the
part of C, for as such it would not bind him, except B was dis-
charged ; but they would construe it to be a mutual promise, viz.,
that C promised to A to pay the debt of B, and A on the other
side promised to discharge B, so that though B be not actually
discharged, yet if A sues him, he subjects himself to an action for
the breach of the promise." l
The last sentence in this judgment shows that one step was still
wanting to complete the efficacy of a novation. The contract
between A and C could not be directly enforced by B, because he
was a stranger to it Therefore A, if he was prepared to expose
himself to an action by C for the breach of his promise, could still
sue B.2 The last stage was reached when it was recognized that
the agreement between A and C operated to extinguish B's debt,
so that A could no longer sue B. This was recognized in 1789
by Buller, J., who said, "suppose A owes B £100, and B owes C
.£100, and it is agreed between them that A shall pay C the £100;
B's debt is extinguished, and C may recover the sum against A." 3
In other words, B, though he cannot sue on a contract made
between A and C, can take advantage of the extinguishment of
his obligation to C, which results from the contract between A
and G* The various applications of this principle in the law of
partnership and otherwise belong to a later period in the history
of the law.5
The manner in which the law upon these three topics — the
invalidity, the enforcement, and the breach of contract — was being
shaped during this period, illustrate the manner in which the
English law of contract, as developed in and through the action
of assumpsit, was being co-ordinated with other branches of the
common law. It was being adapted to the established rules which
regulated the status of such persons as married women and infants ;
and, just as in the growth of the doctrine of consideration, we can
trace the influence of older ideas which had originated in the action
of debt, so in many of these branches of the law we can trace the
influence of older ideas originating in doctrines, first applied to
contracts under seal and more especially to bonds, and developed
mainly in connection with the land law. But, as I have already
pointed out, and as we can see from the history just related, the
main lines of development were shaped by the conditions under
which the various branches of the action of assumpsit lay. At
the end of the seventeenth century these developments were in
1 12 Mod. at p. 134. 2 Ames, op. cit. 300.
3 Tatlock v. Harris 3 T.R. at p. 180. * Lytt v. Ault (1852) 7 Exch. 66g,
'Ames, op. cit. 300-509; Pollock, Contracts (gth ed.) 218-219,
88 CONTRACT AND QUASI-CONTRACT
many cases as yet rudimentary. But, at that period, we can see
the beginnings of another influence which, in the following period,
will exercise a very powerful effect on the further developments of
this branch of the law — the influence of mercantile custom. We
shall see that the theory of contract, as developed in and through
the action of assumpsit, was sufficient to enable the common law
to keep and develop that jurisdiction over commercial law which
it had acquired at the close of this period.1 But before I deal
with the beginnings of a body of law, which was destined to have
so great an influence on the future development, not only of the
law of contract, but also of many other branches of English law,
I must say something of the latest development of the action of
assumpsit, which resulted in the creation of our modern law of
quasi-contract.
§ 3. Quasi-contract
We have seen that, during the mediaeval period, the actions of
debt and account enabled the law to recognize and to give effect
to rights arising from certain relations, which, at the present day,
we should style quasi-contractual. Thus debt could be used to
recover statutory penalties, forfeitures under bye-laws, amercements,
and money ordered to be paid by the judgment of a court ; and
either debt or account lay at the suit of a beneficiary to whose use
money had been paid.2 Similarly, account lay when A handed
over money to B to employ for his (A's) use, or when A's factor
or bailiff had received money to his (A's) use ; and, at the end of
the sixteenth century, it was held that if A, by reason of a mistake
or in consequence of false or fraudulent representations made by
B, had paid money to B, he could bring account against B.3 We
have seen, too, that in the sixteenth century the spheres of debt
and account had come to be almost concurrent ; and that there-
fore, when indebitatus assumpsit had become almost concurrent with
debt, it followed that indebitatus assumpsit came to be almost
concurrent with account.4
These developments, therefore, opened the possibility of
extending indebitatus assumpsit to remedy many of those causes
of action which were remediable, either by the actions of debt or
account. It was in the latter part of the seventeenth century that
this extension was made, and that it was used, firstly, to enforce
certain of those statutory or customary duties which were enforce-
able by action of debt ; and, secondly, to remedy cases of unjust
1 Vol. i 558, 568-573 ; vol. v 140-148.
2 Vol. iii 420, 425-428 ; cp. vol. ii 366-369.
3 Vol. iii 427. 4 Ibid 428.
QUASI-CONTRACT 89
enrichment which were remediable by the actions of debt or
account. The latter was the most fruitful line of development,
and by its means the largest part of our present law of quasi-
contract was constructed.
It would not however be true to say that the whole of our
modern law of quasi-contract has grown up round this latest
extension of indebitatus assumpsit. This action could never be
brought for money due under a judgment;1 and certain duties
imposed by law on carriers, innkeepers, and others were still en-
forceable, as they had been enforceable in the Middle Ages,2 by
an action on the case." These cases, and other similar causes of
action which have arisen later,4 are on the border line between
contract and tort, and should perhaps be classed as quasi-torts, if
the common law had ever recognized such a category of obliga-
tions. But it never recognized such a category, because such
breaches of duty could be sued on by a form of assumpsit ; and,
though this form of assumpsit was, as we have seen, really
delictual in character,5 the fact that it was a form of assumpsit led
the lawyers to class these obligations as quasi-contracts. Parts
therefore of our modern law of quasi-contract are based on the
competence of the old action of debt, and parts on innominate
actions on the case.
In this section I propose to say something of the growth of
that part of the law of quasi-contract which is derived from the
extension of indebitatus assumpsit to this new sphere of liability.
I shall divide the subject according to the two main lines on which
this extension proceeded : firstly, its extension to enforce certain
legal duties formerly enforceable by action of debt ; and, secondly,
its extension to remedy cases of unjust enrichment. Lastly, I
shall indicate the manner in which, by reason of these develop-
ments, the growth of the modern law was made possible.
(i) The extension of indebitatus assumpsit to enforce certain
legal duties formerly enforceable by action of debt.
We have seen that in Slade's Case 6 it was recognized that,
from the existence of a debt, the law would imply a promise to
pay it, which promise could be enforced by indebitatus assumpsit ; 7
and that this decision naturally led to the recognition of contractual
duties implied from the acts of the parties.8 Ihe extension of the
1 Ames, Lectures on Legal History i6o; cp. Bl. Comm. iii 158-159.
1 Vol. iii 385-386, 448.
3 Ames, op. cit. 161, and cases there cited ; Street, op. cit. ii 236-237.
4 See Street, op. cit. ii 237-238 ; as he points out the agent's implied warranty of
authority recognized in Collen v. Wright (1857) 8 E- and B. 647 is a late illustration
of this principle.
8 Vol. iii 448-450. « (1602) 4 Co. Rep. 92b.
7 Vol. iii 443-444. 8 Ibid 446-447.
90 CONTRACT AND QUASI-CONTRACT
idea of contractual duty implied from the acts of the parties,
tended to promote the recognition of duties which diverged more
and more widely from the sphere of true contract. Thus, we have
seen that it had come to be recognized that an infant could be
made liable to pay a reasonable price for necessaries supplied to
him by action of assumpsit on a quantum meruit ; 1 and this
liability could be enforced, though the infant was too young to be
capable of consent.2 But as soon as the idea of consent which
underlies assumpsit begins to be whittled away, it is obvious that
there will be a tendency, on account of its procedural advantages,
to use indebitatus assumpsit to enforce, not only those debts which
arise from a contract express or implied, but also those debts which
are imposed by law.
At the end of the seventeenth century the attempt to use
indebitatus assumpsit in this way was made ; and it was at first
permitted by the courts almost without opposition. Thus in 1676,
in the case of The Mayor of London v. Gorry,3 assumpsit was
brought for money due by custom for scavage. "The jury found
the duty to be due, but that no promise was expressly made :
and whether assumpsit lies for this money thus due by custom
without express promise was the question : resolved it does." In
1679 this case was followed, and the company of Barber Surgeons
of London was allowed to recover, by this form of action, a penalty
imposed on a member for breach of a bye-law.4 In 168 1 it was
held in the Exchequer Chamber that a customary payment known
as weighage could be recovered in this way ; 5 in 1689 6 the gentle-
man ushers were allowed to recover the customary fee due from a
person who had been knighted ; and in the same year the executrix
of a lord of the manor was allowed to recover a fine set upon a
copyholder by her testator.7
But in the last cited case Holt, C.J., dissented. He refused
to follow the prevailing opinion, and to allow that, because debt
lay, indebitatus assumpsit must therefore necessarily lie.8 He
1 Above 52.
2 As Mr. Street points out, op. cit. ii 204, " insane and drunken persons are upon
the same footing as infants in respect to their liability to compensate for necessaries.
The law makes the contract for them, or at least imposes the legal duty on the
particular facts of the case " ; as he points out, loc. cit., the husband's liability to be
sued by assumpsit for necessaries supplied to his wife, whom he has wrongfully
deserted, rests on the same basis; as we have seen, vol. iii 530, it was in Manby v.
Scott (1663) 1 Sid. 109 that it was first recognized that this liability could be enforced
in this way.
3 2 Lev. 174. 4 The Barber Surgeons of London v. Pelson 2 Lev. 252.
5 Mayor of London v. Hunt 3 Lev. 37.
6 Duppa v. Gerrard 1 Shower K.B. 78.
7 Shuttleworth v. Garnet 3 Lev. 261 ; S. C. Comb. 151.
8 " It doth not follow that an indebitatus assumpsit lies because debt lies ; where
wager of law doth not lie, there an indebitatus assumpsit don't lie, and it is mischievous
to extend it further than Slade's Case," Comb. 151.
QUASI CONTRACT 91
objected to this extension on two grounds. In the first place, he
saw that in principle there was a logical chasm between such
cases as Slade's Case, where there was a duty imposed by the
implied consent of the parties, and cases where the duty was
imposed by law without the consent of the parties. This distinc-
tion was pointed out in Shower's argument in the case of the City of
York v. Toun} It was assented to by Holt, who, in another case,
said that "the notion of promises in law was a metaphysical
notion, for the law makes no promise, but where there is a promise
of the party." 2 In the second place, he saw that to permit these
penalties to be recovered by this form of action meant, firstly,
allowing the plaintiff to state his case generally, so that the defen-
dant was embarrassed in making his defence ; 3 and, secondly,
leaving the whole question of liability to a jury, without giving
the court power to pronounce on the reasonableness of the custom
or bye-law.-4 When Holt had made up his mind he was apt to
express his opinion with vehemence. In the City of York v. Toun,
on a motion being made that the action might stay till the next
term, he said "that it should stay till Doomsday with all his
heart " ; 5 and in another case he said, " away with your Indebitatus,
'tis but as a bargain and no Indebitatus lyeth." 6 He tried also to
win over the other judges to his opinion. Raymond notes 7 that,
a few days after the hearing of the City of York v. Toun, " I met
the Lord Chief Justice Treby visiting the Lord Chief Justice Holt
at his house. And Holt repeated the said case to him, as a new
attempt to extend the indebitatus assumpsit, which had been too
much encouraged already. And Treby, Chief Justice, seemed
also to be of the same opinion with Holt"
Holt did not succeed in bringing the other judges round to his
opinion, or in stopping this development of the sphere of indebi-
tatus assumpsit In the case of Shuttleworth v. Garnet 8 he was in
a minority of one; in the City of York v. Toun9 Rokeby, J.,
dissented from his opinion ; and Holt's successors allowed in-
debitatus assumpsit to be brought in these10 and similar cases.11
In fact, they saw that the scope of the action had been so extended
1 " How can there be any privity or assent implied when a fine is imposed on a
man against his will," (1700) 5 Mod. 444.
2 Starke v. Cheeseman (1700) 1 Ld. Raym. at p. 538.
3 " An indebitatus assumpsit is laid generally, and the defendant can't tell how to
make his defence, but debt is laid more particularly," Comb. 151.
* " It is hard that customs, bye-laws, rights to impose fines, charters, and every-
thing should be left to a jury," City of York v. Toun (1700) 5 Mod. 444.
5 1 Ld. Raym. 502. • Anon. (1695) Holt. 35. 7 1 Ld. Raym. 502.
8 3 Lev. 261. » 1 Ld. Raym. 502.
10 See e.g. Mayor of Exeter v. Trimlet (1759) 2 Wils. 95 ; Seward v. Baker (1787)
1 T.R. 616.
11 Thus it was held in Dupleix v. De Roven (1705) 2 Vern. 540 that indebitatus
assumpsit lay on a foreign judgment
92 CONTRACT AND QUASI-CONTRACT
in the seventeenth century, that this further extension, though
illogical if regarded from the point of view of the original theory
on which the action was based, was inevitable. Even if Holt's
views had prevailed, and the right to bring indebitatus assumpsit
in these cases had been denied, many cases would have been left,
in which the supposed agreement upon which it was brought was
equally fictitious. That this was so we shall see if we look at the
manner in which this form of action had been applied to remedy
cases where one man had enriched himself unjustly at the expense
of another.
(2) The extension of indebitatus assumpsit to remedy cases of
unjust enrichment.
Ames has very truly said that "the most fruitful manifestations
of the doctrine that one person shall not unjustly enrich himself at
the expense of another, are, in early law, to be found in the action
of account." x It is because account and debt had become largely
coterminous, that it was possible to extend indebitatus assumpsit to
this new sphere, lhat this was so we shall see if we look at two
sixteenth-century cases, which turned on the sphere of assumpsit,
and compare them with the very different notions as to its sphere
which were growing up in the seventeenth century.
In 1 573, in Tottenham and Beding fields Case? it was held
that, where a defendant had carried off and sold certain tithe pro-
duce belonging to the plaintiff as parson, account did not lie. The
defendant, it was pointed out, was merely a wrongdoer. There
was no privity between him and the plaintiff, as in the case where
one had received another's money as bailiff or agent for him. He
had assumed to take property as owner, and in such a case account
was not a proper remedy.3 In 1595, in the case of H owlet v.
Osbournf it was held that assumpsit did not lie where A de-
livered £\o to the defendant to deliver to the plaintiff, and the
defendant, after promising the plaintiff to pay it to him, failed to
do so. But it is clear that both these were cases in which one
man had been enriched at the expense of another ; and, as we
shall now see, the extensions made in the scope of indebitatus
assumpsit during the seventeenth century, provided a remedy both
for them and for other analogous cases.
We can distinguish three main classes of cases : — (i) actions
to recover money upon a total failure of consideration ; (ii) actions
1 Lectures on Legal History, 163. 2 3 Leo. 24.
3 " The action doth not lie, for here is not any privity ; for wrongs are always
done without privity. ... As soon as the tithes were severed by the parishioners,
there they were presently in the plaintiff, and therefore the defendant by taking of them
was a wrongdoer, and no action of accompt lieth against him," ibid per Manwood, J.
4 Cro. Eliza 380.
QUASI-CONTRACT 93
to recover money paid to a person to whom it was not due ; and
(iii) actions to recover money from a person who had wrongfully
taken it
(i) By the beginning of the eighteenth century, it was well
established that the action would lie to recover back money paid
under a contract, where the consideration had wholly failed. In
Briggs Case1 (1624) A promised to make a lease to B, and B
paid A a large fine for the lease. Before the lease was made A
was evicted from the land. It was held that B could sue by
action on the case to recover damages for the loss of his bargain ;
and it should be noted that the court declined to prohibit the
Council of Wales from hearing the case, because " ceo case est mixt
ove equity." Holt was willing to follow this case, and to rule
that in such cases of total failure of consideration an action on the
case could be brought ; but he at first refused to allow that in-
debitatus assumpsit lay. He considered that the cause of action
was in tort, and therefore remediable by an action in tort, and not
by a form of action which seemed to imply that the liability was
somehow contractual.2 Thus in 1696, in the case of Dewbery v.
Chapman? the defendant, representing falsely that he was a free-
man of London, took the plaintiffs son as apprentice, and promised
to make him a freeman of London. In consideration thereof the
plaintiff paid him £30. The defendant could not fulfil this
promise as he was not himself a freeman. Holt ruled that the
plaintiff could not recover his £30 by indebitatus assumpsit, but
that he must bring an action on the case ; 4 and in 1 698 he gave
a similar ruling.5 But a little later, in the case of Holmes v. Hall
(1705),5 he altered his opinion, though it would seem somewhat
unwillingly.6 He there held that, where an executor had paid X
a sum of money for the delivery up of certain writings belonging
to his testator, and X then refused to deliver them up, the executor
could recover the money so paid by indebitatus assumpsit.
" Many such actions," he said, "have been maintained for earnests
in bargains when the bargainer would not perform, and for
1 Palmer 364.
_ s ** Where upon a reckoning, a man receives more money from me than he ought,
an indebitatus will lie ; nay, it hath prevailed further, where money was paid for lees
which were not justly due (though it is hard to maintain that), but where there is a
bargain, tho' a corrupt one, or where one sells goods that were not his own, I will
never allow an indebitatus," Anon. (1698) Comb. 447.
3 Holt 35.
4 " The defendant hath cheated the plaintiff of his money, and the plaintiff hath
no remedy, unless by special action of the case for not making him a freeman," ibid.
5 Comb. 447, cited above n. 2. 5 6 Mod. 161.
6 '• These cases of indebitatus for money received to use have been carried too far,
and nobody would more willingly check them than I would," ibid ; in the report of
this case in Holt at p. 36, counsel cited a similar case, where Holt had non-suited the
plaintiff — " which Holt utterly denied."
94 CONTRACT AND QUASI-CONTRACT
premiums for insurance when the ship etc. did not go the
voyage." 1
(ii) In the course of the seventeenth century indebitatus
assumpsit was allowed to be brought by A, when he had paid
money to B which was not in fact due, under such circumstances
that B had no right to retain it. In the earlier part of the
century it was thought that in this case, as in the case of failure
of consideration, the proper remedy was action on the case. Thus
it was held in the case of Cavendish v. Middleton (1629) 2 that,
where a vendor of goods, who had already been paid, exacted
payment a second time, case lay to get back the amount thus
wrongfully exacted. But it was held in 1657 that indebitatus
assumpsit lay to get back money paid to X, who was afterwards
proved to have had no right to receive it ; 3 and in the latter part
of the century the principle became established, and was applied to
a large number of different cases. Thus it was said in 1692 that,
if money was paid to a stakeholder to abide the result of a wager,
the winner could recover it from him by this action, as it was money
received by the stakeholder to his use.4 Similarly, money could
be recovered back which had been paid under a judgment which
was void, because the court had no jurisdiction ; 5 or money paid by
mistake, fraud, or extorted by duress.6 But money paid under a
contract void for illegality could not be recovered back if the
plaintiff was particeps criminis.7 It would seem that Holt was
averse to some of these extensions of the action ; 8 but it is clear
from the cases decided in his time and later that his opposition did
not stop the development of this principle.
(iii) As early as 1573 Harper, J., had, in his dissenting
judgment in Tottenham and Bedingfield's Case,9 expressed the
1 Holt at p. 36. 2 Cro. Car. 141.
3Bonnel v. Foulke 2 Sid. 4 — " Si jeo pay monies in satisfaction del duty et come
duty, et il a qui est pay nad title de ceo receiver, et issint le duty n'est satisfie, il a qui
est pay est in debt a moy, et issint jeo maintainer action vers luy."
* Case cited by Holt, C.J., in Martin v. Sitwell 1 Shower, K.B., at p. 157 as
adjudged by Wyndham, J.
6 Newdigate v. Davy (1694) 1 Ld. Raym. 742 — the money had been paid under
a sentence of James II. 's illegal court of High Commission.
6Tomkyns v. Barnet (1694) Skin, 412 per Holt, C.J. ; "The cases of payments
by mistake or deceit are not to be disputed " per curiam Astley v. Reynolds (1732)
2 Stra. at p. 916; it was held in that case that the action lay for money extorted by
duress of goods.
7 Tomkins v. Bernet (1693) * Salk. 22 ; some of the reported reasons for this
decision were disapproved by Lord Mansfield in Smith v. Bromley (1760) 2 Dougl.
697 n., though he did not dissent from the general principle; cp. Clarke v. Shee
(1774) 1 Cowp. at pp. 199, 200; in fact the general principle is stated quite clearly by
Holt in the report of Tomkyns v. Barnet in Skin. 412; the case of Wilkinson v.
Kitchin (1697) 1 Ld. Raym. 89, in which Holt is reported as having laid down the
contrary rule, is obviously wrong.
8 Comb. 447, cited above 93 n. 2 ; cp. Skin. 412.
9 3 Leo. 24 ; above 92.
QUASI-CONTRACT 95
opinion that a wrongdoer might be made liable in account, by
charging him with taking the property as the rightful owner's
agent.1 This view prevailed in the latter half of the seventeenth
century ; and it was held that indebitatus assumpsit could be
brought by A against B, where B had taken or acquired money or
other property which in fact belonged to A. Thus in 1676, in the
case of Woodward v. Aston? indebitatus assumpsit was brought by
the joint holder of an office against his fellow who had taken all
the profits, and no one objected to the form of the action ; and
when, in the following year, this objection was made in a case of a
similar kind, the objection was over-ruled.3 In 1678, in the case
of Howard v. Wood, the court, though it doubted the correctness
of these decisions, declined to over-rule them, as it considered that
the law was too well settled4 Holt, at first reluctantly, acquiesced
in them.5 But in 1706, in the case of Lamine v. Dorre//,6 he
applied the principle to the case where an administrator, acting
under a grant of administration which was afterwards revoked, had
sold debentures belonging to the deceased. He held that the
rightful administrator could waive the conversion, and sue in
indebitatus assumpsit for their value, as for money received to his
use. In his judgment he recalled the great doubts which eminent
lawyers had had as to the application of indebitatus assumpsit to
these cases." But he made it quite plain that these controversies
were then settled. "If two men reckon together, and one over
pays the other, the proper remedy in that case is a special action
for the money over paid, or an account ; and yet in that case you
constantly bring an indebitatus assumpsit for money had and
received to the plaintiffs use. ... So the defendant in this case,
pretending to receive the money the debentures were sold for in
the right of the intestate, why should he not be answerable for it
to the intestate's administrator."8 And, at a later day, he said
" that he could not see how it differed from an indebitatus assumpsit
for the profits of an office by a rightful officer against a wrongful,
1 " The plaintiff may charge the defendant as his proctor, and it shall be no plea
for the defendant to say that he was not his proctor," 3 Leo. 24.
8 2 Mod. 95. 3 Arris v. Stukeley (1677) 2 Mod. at p. 262.
4 " If this were now an original case we are agreed it would by no means lie; . . .
but because judgments have been upon it, and that on solemn arguments, and many
judgments, though some passed sub silentio, yet others have been debated and settled,
and particularly in the Exchequer, we are therefore willing to go the same way," per
Scroggs, C.J., delivering the opinion of the court 2 Shower, K.B., at p. 24.
■ Comb. 447, cited above 93 n. 2. s 2 L<j Raym. I2I6.
These actions have crept in by degrees. I remember in the case of Mr. Aston,
in a dispute about the office of clerk to the papers in this Court, there were great
counsel consulted with; and Sir William Jones and Mr. Saunders were of opinion an
indebitatus would not lie, upon meeting and conferring together, and great consider-
ation," ibid at p. 1217.
8 Ibid.
96 CONTRACT AND QUASI-CONTRACT
as money had and received by the wrongful officer to the use of the
rightful."1
(3) The beginnings of the modern law.
It is clear from these cases that, though in an indebitatus
assumpsit a promise to pay was supposed to have been made, the
promise was very much of a fiction. It is clear, therefore, that
Holt's objections on this score to allowing the action for breaches
of bye- laws and customary duties could hardly be sustained. The
action had come to be regarded as the proper remedy for a mass
of miscellaneous duties imposed by law. But what was the
principle upon which these duties were thus enforced ? The form
of the action implied that they were enforced because the party
liable had agreed to pay. But that was notoriously false.
Blackstone, it is true, by the help of the original contract, tried to
give some colour to this fiction.2 A person was liable to be sued
in debt on a judgment or a penal statute, or in indebitatus
assumpsit on a bye-law, because of " an implied original contract
to submit to the rules of the community whereof we are members." 3
In other cases an agreement was implied "from natural reason
and the just construction of the law."4 For instance, it is on this
ground that we are liable to pay for work done at our request, or
to pay over money received to another's use, or to remunerate a
person who has spent his own money for our benefit at our
request, or to pay what is due on an account stated, or to show
adequate skill in any office or employment. It is clear that
Blackstone, in thus endeavouring to give colour to this fiction of
agreement, hopelessly mixed up cases where there is a real but
an implied contract, with cases where there is no real contract,
but merely an obligation implied by law — in other words, a quasi-
contract. But the fact that Blackstone could seriously put forward
such a theory, both illustrates the somewhat haphazard way 'in
which these various duties had come to be enforced, either by the
actions of debt or account, or by successive expansions of various
forms of assumpsit, and shows that, owing to this haphazard
development, the law had not attained a coherent theory of quasi-
contract.
It was easy enough to see that in many of these cases the
obligation, being imposed by law, had nothing contractual about
it. It was obvious, for instance, that the obligation to make a
customary payment, or to pay a penalty for the breach of a bye-
law, was simply imposed by law ; and the same fact was equally
1 2 Ld. Raym. 1217. 2 Comm. iii 158-165.
3 Ibid 159. 4 Ibid 161.
QUASI-CONTRACT 97
obvious in many of these cases in which the law imposed an
obligation to pay, in order to remedy an unjust enrichment. But
these cases were numerous and varied, and the principle which
underlay them badly needed to be stated. Here Lord Mansfield
had his chance. He was not faced by a coherent body of
principles like the doctrine of consideration,1 or the rules as to
disseisin,2 or the rule in Shelley s Case? He found an incoherent
set of rules stated in a number of heterogeneous cases ; and if
there was any one principle at their back, it was the innate feeling
of the judges that it was just and equitable that a convenient
remedy should be given in these cases. This was a situation with
which he was eminently qualified to deal. In the passage in his
judgment in Moses v. Macfarlan* in which he laid down the
conditions under which an action would lie for these cases of
unjust enrichment, he summed up and thereby gave precision to
the principle underlying the earlier cases. The actual decision in
that case is erroneous ; 5 but the principles there laid down are
the starting point of the modern development of what is the
largest and most important part of the law of quasi-contract ; and
their acceptance has done much to liberalize the common law.
" This kind of equitable action," he said,6 " to recover back money
which ought not in justice to be kept, is very beneficial, and
therefore much encouraged. It lies only for money which, ex
aequo et bono, the defendant ought to refund : it does not lie for
money paid by the plaintiff, which is claimed of him as payable
in point of honour and honesty, although it could not have been
recovered from him in any course of law ; as in payment of a debt
barred by the statute of Limitations, or contracted during his
infancy, or to the extent of principal and legal interest upon an
usurious contract, or for money fairly lost at play : because in all
these cases the defendant may retain it with a safe conscience,
though by positive law, he was barred from recovering. But it
lies for money paid by mistake ; or upon a consideration which
happens to fail ; or for money got through imposition (express
or implied) ; or extortion ; or oppression ; or an undue advantage
taken of the plaintiffs situation, contrary to laws made for the
protection of persons under those circumstances. In one word,
the gist of this kind of action is, that the defendant, upon the
circumstances of the case, is obliged by the ties of natural justice
and equity to refund the money."
It was thus in the action of indebitatus assumpsit that the
larger part of our modern law of quasi-contract has originated.
1 Above 29-30. - Vol. vii 44. * Vol. iii 109-110.
4 (1760) 2 Burr. 1005. 5 2 S.L.C. (10th ed.) 413. 6 2 Burr, at p. 1012.
VOL. VIII. — 7
98 CONTRACT AND QUASI-CONTRACT
But, as we have seen,1 there were also a certain number of quasi-
contractual obligations which had never come within its sphere.
On a judgment only debt could be brought ; and there were a
certain number of obligations still only remediable by actions on
the case. It is not till forms of action are things of the past, that
the products of these various parallel developments will be able
to be grouped together into a uniform law of quasi-contract. It is
not till these procedural changes have taken place that the fiction
of a promise, and with it the confusion between implied contracts
and contracts implied in law, will be got rid of, and the law of
quasi-contract will be able to emerge as a distinct branch of the
law.
We must now turn to that field of mercantile law in which
this new law of contract will necessarily play the most important
part, in which it will be developed in many different directions,
and in which, as the result of these developments, many kinds of
particular contracts, each governed by their own peculiar rules,
will grow up.
1 Above 8q.
CHAPTER IV
THE LAW MERCHANT
I HAVE already said something of the manner in which England
had, during this period, become a commercial nation. We have
seen that, since the new commercial needs of the modern English
state were similar to the commercial needs of the great mediaeval
trading centres of Italy and South Western Europe, the commercial
mechanism which had been there developed spread, first to the
commercial cities of the Netherlands, and later to England ; and
that the legal doctrines, devised by the mediaeval canonists and
civilians to give expression to the forms and working of this com-
mercial mechanism, and to solve the problems to which it gave
rise, were necessarily received, together with the commercial
mechanism, to which they owed their origin and development.
We have seen, therefore, that these doctrines formed the basis of
those new rules of the Law Merchant which were making their
appearance in England at the beginning of the sixteenth century ;
and that, though they were necessarily modified by their contact
with the rules of English law, they are the foundation upon
which modern mercantile law rests both in England and elsewhere.1
In this chapter we must consider the origins and the English
development of some of the principal doctrines of the Law Merchant.
I shall deal, in the first place, with certain doctrines of commercial
law, secondly with certain doctrines of maritime law, and, thirdly,
with a topic which has close relations with both commercial and
maritime law — the topic of insurance.
Commercial Law
The necessity of eluding the rigid mediaeval prohibition of
usury had a large influence on the legal forms which commercial
ideas and institutions took, when they first made their appearance ;
and the modification of this prohibition was the condition preced-
ent to the transition from mediaeval to modern commercial ideas.
1 Vol. v 60-154,
99
100 THE LAW MERCHANT
I shall therefore begin the history of this branch of the law with a
short account of the mediaeval attitude towards usury, the gradual
modification of that attitude brought about by the usury laws, its
total rejection in the nineteenth century, and its partial restora-
tion in the present century. Usury having been permitted under
conditions, the modern mechanism of exchange could be freely
and rapidly developed ; for much of that mechanism depends, to
borrow a phrase from Bagehot, upon " the diffused habit of lending
things." l Thus we get the rise and development of negotiable
instruments and banking, the formation of all kinds of commercial
societies, and some signs of the future development of the modern
law of agency. With these topics I shall deal under the four
following heads. At the same time, and as a result of these
developments, it became necessary to make provision for cases
where merchants, either from their fault or their misfortune, were
unable to meet the liabilities which the new mechanism of com-
merce had enabled them to incur. Thus we get the beginnings of
the law of bankruptcy, with which this part of this chapter will
conclude.
§ i. Usury and the Usury Laws2
At no time can the state be wholly indifferent to the use which
the owners of property make of their property. More especially
must it interest itself in the actions of those who, having a sum of
ready money at their disposal, seek, without risk to themselves,
to exploit the needs of poorer or less fortunate men, and to exact
from them a reward for the loan of this money. Thus, at all times,
the relations of the lenders of money on onerous terms to those in
need of pecuniary assistance, require to be watched carefully, lest
the processes of the law be used for the purposes of the most
grievous oppression. In this country a very short experience of
the consequences of allowing lenders and borrowers to make what
bargains they please has been sufficient to demonstrate this fact ; 3
and this century has seen the state resume a control, which it had
abandoned under the influence of the a priori theories of Bentham,
1 Economic Studies (Silver Library Ed.) 218.
2 Much the best English account of the evolution of the mediaeval, and the growth
of the modern ideas on this subject, will be found in Ashley, Economic History vol. i
Pt. I chap, iii ; Pt. II chap, vi ; the introduction to Tawney's edition of Wilson on
Usury gives a good account of the transition from the mediaeval ideas to those of the
sixteenth and seventeenth centuries ; for a good account of the whole subject, from the
point of view of foreign law, see Brissaud, Cours d'histoire generale du droit francais
1422-1434 ; see also Malynes, Lex Mercatoria Part II chaps, x-xv ; Bl. Comm. ii 454-
464 ; Stephen H.C.L. iii 194-igg ; Bellot, Bargains with Money Lenders (2nd ed.)
1-82.
3 See the evidence of Mathew, J., given to the Select Committee on money-lend-
ing in 1898, cited Bellot, Op. cit. 70, 71.
USURY AND THE USURY LAWS 101
and of the pseudo-scientific laws of the school of laissez /aire
economists.1 In this, as in other cases, these so-called laws placed
obstacles in the way of necessary legislative changes, some time
after the purely temporary political and economic conditions, from
which they were deduced, had ceased to exist. -
We have seen that in the Middle Ages the state, and the
different communities through which the power of the state was
exercised, considered that they were very much interested in seeing
that property was used in accordance with the current notions
of morality and justice.3 And it is clear that when trade was in
its infancy, when, therefore, there was little opportunity for profit-
able investment, the relation of lender and borrower must be very
strictly supervised. For, in such a state of society, borrowers of
money were more often than not either the extravagant or the
needy. The money was borrowed, as Sir William Ashley says,
not for productive but for consumptive expenditure.4 There was
therefore some justification, both for Aristotle's view that all
interest was unlawful because money did not breed money, and
for the literal acceptance of the Scriptural prohibitions of usury.5
If we remember these facts, we shall not be surprised that the
church and the canon law 6 condemned all lending of money as a
sin ; that the civil law and the laws of the states of Western
Europe endorsed and sanctioned this condemnation ; " that all
transactions were carefully sifted to see whether they were tainted
with its presence ; and that the prohibition of usury thus became,
as Brissaud has said, the keystone of the political economy of the
Middle Ages.8
From the earliest times the law of the English state was based
1 Bentham's Defence of Usury was published in 1787 ; and Sir William Ashley
has pointed out, in a review of Mr. Tawney's book, that Leslie Stephen has said that
Bentham's tract " became one of the sacred books of the economists."
2 The usury laws were repealed in 1854, J7i J8 Victoria c. 90 ; the Money-lenders
Act was passed in 1900, 63, 64 Victoria c. 51.
3 Vol. ii 468-469 ; vol. iv 316-326.
4 <« Where money was borrowed it was, in the vast majority of cases, not for what
is called productive expenditure, but for consumptive ; not to enlarge the area of tillage,
or to invest in trade or industry, but to meet some sudden want due to the frequent
famines, or to oppressive taxation, or to extravagance. The money that was lent was
money for which it would otherwise have been exceedingly difficult to secure an
investment. The alternative to lending was allowing it to remain idle," Ashley, op.
cit. i Ft- II 435 ; cp. Brissaud, op. cit. 1423- 1424.
5 Ethics v; Politics 1. 10; Luke vi 35; Cunningham, Industry and Commerce
i 252 n. 1 ; Malynes, op. cit. chap. x.
6 See Clement V.'s canon of 1311, cited Ashley, op. cit. i Pt I 150-151.
7 Ibid Pt. II 382-383 ; Brissaud, op. cit. 1425-1426.
8 Op. cit. 1424 — " Les casuistes cherchent a le proscrire partout ; par suite de leur
intransigeance, la defense de l'usure prend une extension invraisemblable, et devient
comme la clef de voute de l'economie politique du moyen age ; vente, payement,
dommages intgrets, society, banque, lettre de change, autant de matieres ou on s'en
pre-occupe particulierement."
102 THE LAW MERCHANT
upon these ideas.1 Glanvil tells us that usury was both a sin and
a crime. In the usurer's lifetime he was dealt with by the ecclesi-
astical courts as a sinner ; but, if he died unrepentant, the king
asserted a claim to his goods.2 This was also the law in Bracton's
day ; 3 and it was restated in 1 341. A statute passed in that year
enacted that, " The king and his heirs should have the cognisance
of the usurers dead ; and that the Ordinaries of Holy Church have
the cognisance of the usurers in life, as to them appertaineth, to
make compulsion by the censures of Holy Church for the sin, and
to make restitution of the usuries taken against the laws of Holy
Church.4
As we might expect, the temptation to fall into this sin was
felt most keenly in the great commercial towns. In 1363 the city
of London, encouraged thereto by the king,5 issued an ordinance
against it;6 and in 1 391 further provisions were made.7 The
object of the latter provisions was to declare more precisely what
kinds of contract were usurious ; 8 and it was further enacted that
brokers, through whom such bargains were usually negotiated,
should be obliged to take an oath, and to give ^100 as a security,
that they would not meddle in any usurious transactions.9 The
case of Ralph Cornwaille, which occurred in 1377, shows that this
legislation was no dead letter ; 10 and, that it was in accordance
with the public opinion of the day, is clear from the fact that in
1376 the Commons petitioned that the ordinances against usury
made by the city of London should be enforced in all other towns.11
As late as 1487 the legislature passed two statutes on the lines of
these ordinances. The first made all "bargayns groundyt in
usurye " void, and subjected those who made them to a penalty of
,£100, in addition to any punishment which might be inflicted by
1 The apocryphal laws of Edward the Confessor c. 37 (Lieberman, Die Gesetze
der Angelsachsen i 668) treated usury as a crime — " si aliquis inde probatus esset
omnes possesuones sua; perderet et pro ex lege haberttur."
2 Bk. vii 16 — " Usurarii vero omnes res, sive testatus sive inttstatus decesserit,
domini Regis sunt ; vivus autem non solet aliquis de crimine usurae appellari nee
convinci. ... Si quis aliquo tempore usurarius fuerit in vita sua, et super hoc in
patria publice defamatus; si tamen a delicto ipso ante mortem suam destiterit et
penitentiam ejerit, pest mortem ipsius ille vel res ejus lege usurarii minime censebun-
tur " ; cp. Dialogus de Scaccario, Stubbs, Sel. Ch. (6th ed.) 229.
:i At ff. 116b, 117. 4i5 Edward III. st. 1 c. 5.
5 Liber Albus (R.S.) iii 142, 143 ; for the French text see ibid i 267, 268.
6 Ibid iii 143-146; i 368-371. 7 Ibid iii 161-163 ; i 399-401.
8" Whereas the same Ordinance (that of 1363) is too obscure and it is not com-
prised or declared therein in especial what is usury or unlawful chevisance," ibid iii
162.
9 Ibid iii 163.
10 Ibid i 394-399 ; see Cunningham, op. cit. i 360-361, for a full account of this
case ; a loan of £10 was negotiated through brokers for which the lender wished to
charge 80%, and, on non-payment, he sued lor the money ; on complaint to the Mayor
and aldermen, Ra'ph Cornwaille, the borrower, was freed from his obligations, and the
lender was imprisoned till he had paid double the interest as a penalty to the city.
11 R.P. ii 350 (50 Ed. III. no. 158).
USURY AND THE USURY LAWS 103
the ecclesiastical courts.1 The second inflicted penalties on brokers
who made these usurious contracts.2
At the latter part of the fifteenth and in the sixteenth centuries
economic conditions were changing.3 The growth of trade was
making it clear that traders could make a productive use of bor-
rowed money, and that therefore a payment for the use of borrowed
money might be advantageous both to the parties to the contract and
to the state. The result was, not the repeal of the general prohibi-
tion of usury, but the growth of a large number of rules, which
were designed to distinguish between those payments for the use
of money which were usurious and illegal, from those which were
permissible.
The basis of these rules was the distinction drawn, as early as
the first half of the thirteenth century, between a mere payment
for the use of money, and a payment made to compensate the
lender for some loss actually occasioned by non-payment {damnum
emergens), or for failure to realize some expected gain in conse-
quence of his not having the money in hand {lucrum cessans)} A
payment on account of damnum emergens was recognized as valid
by Aquinas ; 5 and, as the opportunities for profitable investment
increased, a payment on account of lucrum cessans gradually came
to be regarded as lawful. Sir William Ashley says that in the
fifteenth century its legality was generally accepted by the best
theologians.0 But it should be noted that the loss must actually
be proved ; 7 and it was necessary that, in the first instance, the
loan should have been gratuitous. Technically, the payment was
made, not for the loan, but for non-payment of a gratuitous loan
at the date promised.8 Gradually, however, in the case of traders,
the loss came to be presumed ; and, with the shortening of the
period of the gratuitous loan, the making of it gratuitously for a
short period came to be a mere formality.9 But this development
did not take place till after the close of the mediaeval period ; 10
1 3 Henry VII. c. 5. 2 3 Henry VII. c. 6. 3 Vol. iv 316-319.
■•Ashley, op. cit. i Pt. II. 399; Brissaud, op. cit. 1427.
5 Ashley, op. cit. i Pt. II. 399.
c" Even some of the contemporaries of Aquinas among the canonists had held
this opinion; so that during the following century, the fourteenth, it could hardly be
regarded as distinctly under the ban of the Church ; and in the fifteenth it was cer-
tainly very generally accepted by the best theologians," ibid 401.
7 Siraccha, De Mercatura, Pt. IV., De contractibus mercatorum § 3 (Tractatus
Universi Juris vi Pt. I. 298b) says, " Probare debes quod mercator habuit prae mani-
bus mercts quasdam quibus fuisset lucratus . . . , et quia caruit pecunia, non potuit
emere, vel alio modo potuit constare, quod si habuisset illam pecunhm, certe lucratus
essat."
8 Ashley, op. cit i Pt. II. 401, 402. 9 Ibid 402.
10 Ibid 403 ; Malynes, Lex Mercatoria 243, clearly states the view of his own day
on this matter — " A man may take a benefit for his money two manner of ways, which
is ex damno habito, when he hath sustained a loss, or ex lucre ccssante, when his bene-
fit or profit hath been taken away or prevented for want of his money, which he might
have bestowed in some wares to furnish his shop at convenient time, and in both these
the party is not active but passive."
104 THE LAW MERCHANT
and, by that time, the application of the strict mediaeval principle
had been weakened by the manner in which this idea of compensa-
tion for loss had been applied to render legal many kinds of com-
mercial contracts.
One of the commonest of the mediaeval commercial contracts
was the Commenda — a form of societas, and the direct ancestor of
those limited partnerships of continental law which have lately been
introduced into this country.1 A, a merchant, stays at home, and
entrusts goods or money to another that he may trade with them
in foreign lands, in return for a share of the profits resulting from
this trade ; or, A, the travelling merchant, borrows capital from
the merchant at home, that he may trade with it, in return for a
share of the profits.2 In these cases the risk run by the lender
entitled him to a payment for the use of his capital. The London
ordinance of 1391 makes it quite clear that such lending for gain,
if accompanied by risk, was not punishable as usury.3 Exactly
the same considerations applied to loans on bottomry. The
lender risked the loss of his money if the ship did not arrive safely,
and for this risk he was entitled to be paid.4 Insurance also could
be similarly justified. & In all these cases payment was made, not
for the loan of money, but for the loss or risk of loss run by the
lender. It was only if the lender contracted to receive payment
for his money in any event that he fell under the ban of the law.
A further step was made towards the weakening of the general
principle when men began to reflect upon these various transac-
tions which were thus held to be lawful, and to extend them by
inference and deduction. We see an illustration of this in the
contractus trinus of the late fifteenth century, which distinguished
theologians and canonists of the sixteenth century asserted to be
legal.6 Sir William Ashley has very clearly described this con-
tract; and I shall copy his description.7 "An ordinary contract
of partnership sharing risk and profit was justifiable ; so was also
a contract of assurance. A man could enter into partnership
with B ; and he could insure himself with C against the loss of
his capital ; and he could insure himself with U against fluctua-
tions in the rate of profit [by the machinery of selling his uncertain
1 Below 195-197.
2 Ashley, op. cit. i Pt. II. 413-415 ; as Brissaud has said, op. cit. 1426, " On ne
preta plus, mais on associa."
3 Liber Albus (R.S.) iii 161 — " If any person shall lend or put into the hands of
any person gold or silver to receive gain thereby, or a promise for certain without risk,
let such person have the punishment for usurers."
4 Below 261-263.
5 Below 275-276; cp. Straccha, De Assecuratione, Introd. §§ 43, 44, Tractatus
Universi Juris vi Pt. I. p. 360b.
6 Ashley, op. cit. i Pt. II. 440-447 ; see Scaccia, De Commercio et Cambiis § 3
Gloss. 3 no. 36.
7 Ashley, op. cit. i Pt. II. 440-441 ; cp. Brissaud, op. cit. 1427 n. 4.
USURY AND THE USURY LAWS 105
profit for a less but certain profit].1 If all this was morally justi-
fiable,, why should not A make the three contracts with the same
man B ? or, to put it in a different way, why should not A place a
certain sum in the hands of B, agreeing to receive only a low rate
of interest, in consideration of a promise on B's part (a) to restore
the capital, and {b) to pay a particular rate of interest in any case,
whether the gains were high, low, or even absent." It is clear,
as Sir William Ashley says,2 that " under the forms of partner-
ship, the contract had become nothing more nor less than a loan
on interest ; the essential element in partnership, participation in
risk, had been contracted away."
Another device, whereby a landowner could in substance
borrow money at interest, was the creation of a rent charge on his
property ; 3 or, as we have seen, the grant of a lease by the
borrower to the lender at a nominal rent.4 This was never
accounted usury — possibly because the transaction was, in early
times, regarded as the creation or conveyance of a res, and there-
fore quite distinct from a loan.5 It was only if the creditor, to
whom land had been thus conveyed in mortgage, took the profits
of the land and did not set them off against the debt, that the
transaction was usurious.6 In the latter part of the fifteenth
century the nature of these transactions was more closely analysed.
In substance they looked very like loans of money at interest."
The landowner, or the shop-keeper, who created a redeemable rent
charge on his property in return for a capital sum of money, in
substance borrowed that capital sum at interest8 But the church
held that, so long as these charges were only created upon bona
stabilia which produced an income, so long as the rent charge
bore a reasonable relation to the capital sum paid for it, and so
long as the debtor retained the right to redeem, the transaction
1 For the device of using the machinery of a sale to effect an insurance see below
277-278 ; the contract consisted, as Brissaud shows, of contracts of partnership, in-
surance, and sale.
2 Op. cit 441.
3 Ibid 405-411 ; Brissaud, op. cit. 1429-1434 ; cp. also Select Pleas in the Star
Chamber (S.S.) i lxxxiii-lxxxv.
4 Vol. iii 129.
* As Brissaud says, op. cit. 1429 — These rents " ont commence par etre un mode
d'exploitation des terres et nullement une operation de credit " ; "la rente apparaissait
comme un etre moral distinct des arrgrages, produisant des revenues a la facon d'un
fonds de terre, ' de duree a tourjours ' ; lorsque le d£biteur remboursait le capital qu'il
avait recu, on disait qu'il rachetait la rente," ibid 1432.
* Vol. iii 128 ; Glanvil x 8 ; Dialogus de Scaccario, Stubbs, Sel. Ch. 229, 230.
7 Ashley, op. cit. i Pt. II. 40S-409.
8 " The canonist theory put no obstacle in the way either of a landed proprietor,
or of an artisan with a shop or stall and the trade rights that usually went with it,
who wished to borrow capital to put into his land or his business by means of the
sale of a redeemable rent charge," ibid 410-41 1 ; cp. Select Cases in the Star Chamber
(S.S.) i lxxxiv.
106 THR LAW MERCHANT
was lawful.1 It is perhaps possible that this last condition may
have had some influence upon the growth of the doctrine as to re-
demption which, in the sixteenth century, the Court of Chancery
was beginning to make an essential part of all mortgage transac-
tions.2
If we look at these various methods by which in substance it
had become possible to borrow money at interest ; if we remember
that many of the Italian states borrowed money and contracted to
pay interest on their loans ; 3 that in many of the Italian com-
mercial towns litigants were prohibited from invoking the aid of
the laws against usury ; 4 that the Franciscans had in some of
these states established, with the approval of the church, montes
pietatis, or funds from which loans were made to the needy in
return for a low rate of interest 5 — we shall see that many inroads
from many different sides had, at the close of the mediaeval
period, been made on the general principle that all usury was
sinful.
But the principle was still accepted. Usury was still de-
nounced in the old terms ; and those who wished to evade the
law made use of various devices to cloak their real intentions."
We shall see that when the legality of the contract of insurance
was in doubt, recourse was had to the expedient of a sale and
resale to cloak the real bargain ; " and that the machinery of the
contract of exchange or cambium was largely used to effect the
same object.8 We are reminded of the various expedients which
1 Ashley, op. cit. i Pt. II. 409, 410.
2 Vol. v. 293, 330-331 ; vol. vi 664 ; this condition seems to be much more closely
connected with the equitable prohibition of clogging the equity of redemption than the
general law against usury, ibid n. 6.
3 Ashley, op. cit. i Pt. II. 447-448 ; below 179, 207-208.
4 Vol. v 80 n. 2; cp. Bensa, Histoire du Contrat d' Assurance au moyen age
(Translated by Valery) 4 — " meme a diverses reprises les l^gislateurs municipaux
s'efforcerent d'empecher que les prescriptions du droit canon . . . fussent appliquees
ou meme fussent seulement invoqu£es ; ils menacaient en effet de peines rigoureuses
quiconque chercherait a s'en prevaloir pour se soustraire aux suites de ses engage-
ments " ; we may note that in the Select Cases in Chancery (S.S.) no. 95 (1408) we
see an Englishman at Verona doing a money-lending business with Englishmen
visiting that city.
6 Ashley, op. cit. i Pt. II. 449-451 ; Brissaud, op. cit. 1427 n. 7 ; cp. Malynes, op.
cit. Pt. II. chap, xiii for an account of the Mons Pietatis at Bruges, — an institution
which he would have liked to see established in London ; he also advocated, ibid 235,
a strict regulation of pawnbrokers, which regulation had been already begun by the
statute 1 James I. c. 21.
6 For an interesting case of a fictitious contract made to conceal usury see a bill
in Chancery of Edward IV.'s reign, printed by Tawney and Power, Economic
Documents, ii 133-134.
7 Below 277-278.
8 Ashley, op. cit. i Pt. II. 426-427; cp. Liber Albus iii 147 — a letter under the
Privy Seal of 1366 says that, " many merchants and others dwelling in our city of
Lon:Jon, colourably and subtly have made, and do make from day to day, divers
exchanges of money and of other things that do not concern the dealings of lawful
merchandize " ; the practice under the name of " dry exchange " is alluded to in
USURY AND THE USURY LAWS 107
can be used at the present day to evade the laws which declare
wagering contracts to be void. Such expedients are the best
evidence of the existence of the general prohibition. But, it
may be asked, why was it that this general prohibition was still
maintained, seeing that the exceptions to, and the evasions of it,
now covered so much ground? No doubt this was partly due to
the authority of the church ; but, as Sir William Ashley has
pointed out, there was a substantial justification for this use of the
church's authority. No doubt in the trading centres the modifica-
tions of the rule almost went to the length of repealing it ; but
the merchants were but a small fraction of the people who owned
allegiance to and sought protection from the church. " By far
the greater part of the population of Western Europe continued
to be engaged in the old unchanging pursuits of agriculture : a
declaration that payment could be taken for the loan of money
would have meant the delivering them into the hands of the
spoiler. The church, caring for the masses of the people, for the
weak and stupid, might think it well to maintain a prohibition
which imposed no restriction on the activity of the traders in the
towns, who were well enough off to take care of themselves.
The original prohibition had really aimed at preventing the
oppression of the weak by the economically strong. The gradual
exemption from the prohibition of methods of employing money
which did not involve oppression, instead of obscuring the original
principle, may be said to have brought it out more clearly."1
That this was the point of view taken by the English legislator
we can see from a statute of 1495,2 which replaced that passed in
1487. Its object was to distinguish between cases where a reward
could lawfully be taken for a loan and cases where it could not.
Thus it allows, " lawful penalties for the non-payment of money
lent" It condemns the sale of goods and their repurchase for a
less sum, only if the transaction was with a person " in necessity."
It condemns a loan of money in return for the rents and profits of
land, only if the lender incurred no " adventure," or if he was to
have the rents and profits of the land for a time certain.3^
3 Henry VII. c. 5 ; Tawney, op. cit. 73-74 ; as Bensa says, op. cit. 8, " Le change £tait
bien moins un contrat sui generis qu'une forme ou mieux encore un deguisement dont
ou revetait toutes sortes de transactions pecur.iaries pour les mettre a l'abri des lois
port£es contre Tusure " ; see below 126-130 for the contract of cambium.
1 Ashley, op. cit. i Pt. II. 438-439. These principles continued to be applied to the
types of credit transactions entered into by peasants and small masters, Tawney, op.
cit. 17-30, and by needy gentlemen, ibid 31-42; the former class of borrowers were
protected till 1854 by the usury laws, and the latter class were also protected by the
growth of the equitable doctrines as to mortgages, and as to catching bargains.
2 n Henry VII. c. 8.
3 Above 105-106 ; the current view of the usurious character of such dealings in
land is illustrated by two cases of 29 and 31 Henry VIII. abridged by Brooke, Ab.
Usurie pi. 1 and 2 ; cp. Burton's Case (1592) 5 Co. Rep. 69a ; Sharpley v. Hurrel
(1609) Cro. Jac. 208 ; Roberts v. Tremayne (1619) ibid 507.
108 THE LAW MERCHANT
When this stage had been reached, it was inevitable that
further developments should be made. Clearly all loans of money
at interest could not be condemned. The methods employed to
evade the penalties for usury were coming to be merely colourable
devices. The maintenance of the law, which rendered these
devices necessary, increased the lender's risk, and therefore the
interest required by the borrower. The legislator was, as we
have seen, coming to regard commercial dealings not so much
from the point of view of their moral rectitude as from the point
of view of their bearing upon the power of the state ; * and from
this point of view it was clearly desirable, in the interests of
commercial development, to encourage loans of capital by per-
mitting interest to be taken.2 On the other hand, it was clear that
to leave persons free to make what loans they pleased at any
interest they pleased would lead to oppression. As Bacon said,
" two things are to be reconciled : the one that the tooth of usurie
be grinded, that it bite not too much ; the other that there be left
open a meanes to invite moneyed men to lend to the merchants
for the continuing and quickening of trade." 3 The reconciliation
of these two things "produced a controversy hardly less acute
than that which accompanied the rise of machine industry in
England two centuries later."4
In 1535 Thomas Cromwell contemplated drawing a statutory
distinction between cases in which the expedients which enabled
interest to be contracted for were used as a mere cloak for usury,
and cases in which the parties were engaged in a bona fide
commercial transaction.5 But the project came to nothing.
Probably it was found to be impracticable. In 1 545 a less logical
but more workable solution was devised. A statute passed in that
year 6 saved the face of the older doctrine by a condemnation of
usury in the old terms, but at the same time recognized the new
conditions by repealing all the former statutes, and by permitting
persons to lend money at a rate of interest not exceeding ten
per cent without being liable for the penalties for usury.7 Any
1 Vol. iv 318.
2 Bacon says in his Essay on Usury that, " howsoever usury in some respects
hindereth merchandising, yet in some other it advanceth it ; for it is certain that the
greatest part of trade is driven by young merchants upon borrowing at interest ; so as
if the usurer either call in or keep back his money, there will ensue presently a great
stand of trade" ; cp. Tawney, op. cit. 43 seqq.
3 Essay on Usury. 4 Tawney, op. cit. 105.
5 L. and P. ix ii no. 725 — " that an act may be made against usury which is
cloaked by pretence of law."
6 37 Henry VIII. c. 9.
7 The preamble states that, " before this tyme diverse and sondrie Actes . . .
have bene . . . made for the punyshment of Usurye, beinge a Thinge unlawfull . . .
which Actes . . . ben soe obscure and darke . . . and upon the same soe many
doubts . . . have risen . . . and the same acts . . . bene of so litle force and effect,
that by reason thereof litle or noe punyshment hath ensued to thoffendors of the same,
but rather hath encouraged them to use the same."
USURY AND THE USURY LAWS 109
attempt to evade the act by sales and repurchases, or by mortgages
in return for rents and profits, was punished by the forfeiture of
treble the value of the property sold, or the profits contracted for ;
and, in addition, fine and imprisonment In 1551-15521 this
statute was repealed — the Protestants were no more inclined to
favour usury than the Catholics. It was declared that usury was
utterly prohibited by the word of God, and the taking of any kind
of interest was forbidden in the most comprehensive terms.
But in Elizabeth's reign other counsels prevailed. Protestant
opinion had wavered. Though Luther had supported the general
prohibition, Melancthon had seen that traders must be allowed to
borrow at a moderate rate of interest ; 2 and Calvin, though not
perhaps prepared to go quite so far as Melancthon, admitted that
there might be circumstances in which the taking of interest was
lawful.3 Among both Protestants and Catholics, "the moral
distinction was tending more and more to become one between
excessive demand and moderate demand, rather than between
gratuitous and non-gratuitous loan."4 In 1 571 5 a statute was
passed repealing the statute of Edward VI., and reviving that of
Henry VIII. Usury was still branded as a detestable sin punish-
able in the ecclesiastical courts ; and in the temporal courts it was
declared to be an offence which rendered those guilty of it liable to
the penalties of a praemunire. But it was provided that no one
should be liable to these punishments if the rate of interest did not
exceed ten per cent6 On the other hand, though a person who
took less than ten per cent was not liable to these punishments,
1 5,6 Edward VI. c. 20; Crowley, Information to Parliament (E.E.T.S.) 172-174,
voices the prevailing conservative view; cp. Ashley, op. cit. i Pt. II. 465.
2 Ibid 456-458.
3 Among the conditions laid down by Calvin as justifying usury are the follow-
ing : — " That usury should not be demanded from men in need ; nor is it lawful to
force any man to pay usury who is oppressed by need or calamity" ; and that, "he
who receives a loan on usury should make at least as much for himself by his labour
and care as he obtains who gives the loan," cited ibid 459; as Mr. Tawney says, op.
cit. in, Calvin approached the question from the standpoint of a man of affairs who
assumed the existence of capital and credit, and wished to moralize the commercial
institutions of his day; his "indulgence to moderate interest, like Adam Smith's
individualism, was remembered when the qualifications surrounding it were
forgotten," ibid 120.
4 Ashley, op. cit. i Pt. It. 451 ; cp. Grotius, De jure Belli et Pacis ii 12. 22 (cited
Bl. Comm. ii 456) — " If the compensation allowed by law does not exceed the
proportion of the hazard run, or the want felt, by the loan, it's allowance is neither
repugnant to the revealed nor the natural law : but if it exceeds those bounds, it is then
oppressive usury ; and though municipal laws may give it impunity, they never can
make it just."
s 13 Elizabeth c. 8, made perpetual 39 Elizabeth c. 18 ; for an attempt to legislate
in this way in 1563 see Tawney, op. cit. 158 ; for some cases on the statute see Burton's
Case (1592) 5 Co. Rep. oga ; Clayton's Case (1595) ibid 70a; cp. Cunningham, op. cit.
y 153. 154.
'That no distinction was drawn by the Act of Edward VI. between different rates
of interest was noted in 13 Elizabeth c. 8 as one of the reasons for repealing it.
110 THE LAW MERCHANT
he was liable to forfeit the interest if proceedings were taken to
recover it.1 This clause in the Act seems to have been a dead
letter ; 2 and it was not repeated in the Act of 1623, which lowered
the rate of interest to eight per cent.3
It was far from being a logical rule — "you may perceive," said
Malynes,4 "what laws and prohibitions are made against usury;
and nevertheless the practice of it is most usual in many kingdoms
and commonweals, and the laws are also made accordingly " ; and
it was naturally distasteful to the rigid moralists. Their views
found expression in the treatise on usury, written in 1 569 by Dr.
Wilson, Master of Requests,5 and first published in 1572.6 "At
the last," he says,7 "you come to a rate, and woulde in any wise
have ten or twelve upon the hundred eyther appointed or
tollerated. . . . But I am not of your mynde, because God is
against you and therefore 1 do abhorre all toleracion of usurie . . .
but rather I would wishe that there were as straite lawes to forbid
usurie as there bee to forbid felony or murther." On the other
hand, following the mediaeval distinction, he would allow a payment
of interest for loss sustained as distinct from usury.8 That Wilson
took the old-fashioned view is, I think, due to the fact that he was
an Anglican, a canonist, and an ambassador. As an Anglican, he
naturally magnified, as many Anglican writers magnified,9 the
literal words of the Bible, and he was naturally inclined to oppose
the more liberal opinions of Calvin. As a canonist, he was inclined
to stress those texts of the canon law which were in harmony with
the words of the Bible — they were the parts of the canon law
which, being in harmony with Anglican teaching, the English
church had received.10 As an ambassador, he approached the world
of commerce from the standpoint of the diplomatist ; and English
diplomatists have generally, from that day to this, been somewhat
of amateurs in financial and commercial matters.
The moral question continued to be much discussed by many
1 13 Elizabeth c. 8 § 4; cp. Tawney, op. cit. 160-161. 2 Ibid 165-166.
3 21 James I. c. 17 ; reduced to six per cent by 12 Charles II. c. 13. Bacon in his
essay on usury had advocated a reduction, and the measure was approved by Malynes,
Lex Mercatoria 231-232.
4 Op. cit. 228.
BFor some account of Wilson see Tawney's edition of his book, 1-15; for his
speech against the Act see ibid 159.
6 The Epistle to the Earl of Leicester prefixed to the book is dated July 25th, 1569,
and the title page bears the date 1572 ; cp. Tawney, op. cit. 10.
7 At f. 73.
8" For you must understande that usurie is oneley geven for the onely benefitte of
lendynge for time. Whereas interest is demanded when I have susteyned losse
through another man's cause," ibid f. 133 ; cp. to the same effect Malynes, op. cit.
228-229; and this was the original distinction between the words — interest is " that
which is between or the difference between the creditor's present position and what it
would have been had the bargain been fulfilled," Ashley, op. cit. i Pt. II. 399.
9 Tawney, op. cit. 112-113, 116-117. 10 Vol. i 594.
USURY AND THE USURY LAWS 111
English1 and continental writers in the seventeenth century. -
Some, including Malynes 3 and Marquardus,4 advocated the retention
of the mediaeval idea, that in considering whether any given bargain
to give or receive interest was lawful, regard should be paid to the
condition of the borrower and the purpose of the loan. It would
however have been difficult to give effect to this principle by
direct legislation, and no attempt was made to give effect to it in
this way. In fact, economic theory was tending to the view that
in the case of the contract of loan, as in other cases, persons should
be free to make what bargains they pleased5 — "having for centuries,"
as Mr. Tawney says, "argued with little reason that interest was
oppressive in all circumstances, within half a century of Wilson's
death they were to argue with even less reason that it was oppressive
in none." 6 But in the sixteenth and early seventeenth centuries the
mediaeval idea was to some extent recognized by the Council ; 7 and
later in the seventeenth century it found expression in the growth
of the equitable control over bargains with persons under the
pressure of necessity, or with heirs, reversioners, or others entitled
to expectant interests in property.8
We have seen that § 4 of the Act of Elizabeth was not
repeated in the Act of James I. ; and the later debates upon this
1 Cunningham, op. cit. ii 156-159.
3 Ibid; Ashley, op. cit. i Pt. II. 453; cp. Marquardus, De Jure Mercatorum et
Commerciorum (ed. 1662) ii 8, 32, 37, 46, 47, 53, 64 ; iv 4, 8, 10-12.
3 Op. cit. p. 243 — " As there are three sorts of dealing amongst men, that is Gift,
Bargaining, and Lending ; so are there three sorts ot men, the stark beggar, the poor
householder, and the rich merchant or gentleman. To the first you ought to give freely,
not only to lend freely ; to the second you ought to lend either freely or mercifully, and
not to feed upon him with excessive usury : but with the third you may deal straightly,
and ask your own with gain especially when he gaineth by your money ; using in all
these a conscience with discretion."
4 Op. cit. iv 4, 8, 10-12 — " Usurarum autem prohibitarum rursum duo sunt genera ;
unum ex parte et ratione debitoris ; alterius respectu creditoris. Respectu et ratione
debitoris usurae sunt illicitae et prohibitae, quarum exactione debitor gravatur et
paulatim quasi consumitur : hoc est quando debitor inops et pauper factus est, non ex
delicto suo et prodigalitate, sed fortunae injuria. ... A non pauperibus vero, qui
propter indigentiam suam praesentem non inopiam, sed vel lucrum aliamve instantem
necessitatem sumunt, usurae licitae exiguntur. . . . Fieret enim alias debitor locupletior
cum creditoris jactura. Respectu creditoris illicitae usurae turn sunt, quando debitor
quidem pauper non est, sed creditor nihilominus plus justo interesse exigit, nomine
sortis principalis non solutae."
•Vol. vi 356-360.
8 Op. cit. 60; as is there said, doctrines designed to protect the peasant or craftsman
were not applicable to clothiers, ironmasters, and other capitalists who could protect
themselves; a modification was needed, for the same reason as, in our day, a
modification of the equitable doctrine of clogging the equity of redemption was needed.
7 Thus in 1600 one Clarke of King's Lynn was accused of extreme and
unconscionable dealing against Bellingham of Peterborough ; certain persons were
appointed to reduce Clarke to some compromise, and to make him restore to
Bellingham his copyhold ; if he will not do so they were to certify the Council, Dasent
xxx 366 ; cp. Tawney, op. cit. 162-165.
"The leading cases are Chesterfield v. Janssen (1750) 1 Atk. 339; Earl of
Aylesford v. Morris (1873) L.R. 8 Ch. 484 ; on the whole subject see Bellot, Bargains
with Money Lenders Chap. iv.
112 THE LAW MERCHANT
question show how rapidly public opinion had changed since I 571.
"The House of Commons had debated anxiously, if unprofitably,
under Elizabeth as to the correct interpretation of Scripture : in
1 640 it is much more concerned with the danger of driving capital
abroad."1 An Act of Anne2 finally reduced the rate to 5 per
cent ; and this and subsequent Acts excepted certain transactions
from the operation of the law.3 Subject to these modifications
and exceptions, the scheme of the Elizabethan statute, sup-
plemented by the rules of equity, was the basis upon which the
law rested down to the repeal of the usury laws in 1854,4 under
the influence of Bentham and the economists.5 When, in 1900,
the Legislature saw fit to resume some control over the operations
of moneylenders, it directed the courts to apply these equitable
doctrines as to harsh and unconscionable dealings, when they were
considering the question whether a borrower was entitled to
relief.6 By so doing it has again brought our modern law into
touch with the policy which commended itself to the lawyers and
statesmen of the sixteenth and seventeenth centuries, and with the
elements of substantial truth and justice which underlay the
mediaeval condemnation of usury.
The modification of the mediaeval prohibition of usury, and
the consequent growth of the law as to when usury was permissible
and when it was not, show us that, in the sixteenth century, the
organization of commerce and industry upon a capitalistic basis
was an established fact. This new organization of industry was
naturally the cause of great changes and developments in com-
mercial law — indeed, it is the ultimate cause of the shape which it
has assumed. Two of its most important consequences were the
rise and growth of negotiable instruments and the institution of
banking. At the present day negotiable instruments provide for
the safety of capital, by affording means for obviating the risks
attendant upon the physical transport or exchange of the precious
metals ; and the bank provides, in the first place, a place where
capital can be stored, and, in the second place, a convenient and
safe mechanism by which this stored up capital can be used as and
when required.7 Both in this way bear to cash payments some-
1 Tawney, op. cit. 171. 2 12 Anne st. 2 c. 16.
3 For these acts see Bellot, op. cit. 44, 45.
4 17, 18 Victoria c. 90. 5 Above 100-101.
s 63, 64 Victoria c. 51 — The court must be satisfied (§ 1. 1) that " the transaction
is harsh and unconscionable, or is otherwise such that a court of equity would give
relief."
7 Thus Marquardus, De jure Mercatorum et Commerciorum, ii 12. 33, says of bills
of exchange, " in summa adeo Reipublicae necessaria et utilia sunt cambia, ut, si ces-
sarent, omnia fere mercaturae officia destruerentur. Et sublata negociationi cambiorum
e medio tolli omnes mercaturas et nundinas " ; and ibid ii 14. 3, he says of payments
ORIGINS AND DEVELOPMENT 113
what the same historical relation that cash payments bear to barter
— they mark a more advanced stage of commercial organization.
Both also began to assume their modern forms and functions
in the mediaeval trading centres of Southern Europ : and
the mediaeval fairs ; and both during this period spread over
Europe, and added important chapters to the national law of many
states. In dealing with both therefore we must consider, in the
first place, their mediaeval origins and continental development,
and, in the second place, their introduction into England and the
manner in which they were received and developed by the com-
mon law.
But though from many points of view we can rightly regard
these institutions as connected phenomena ; though each has
helped forward the development of the other ; yet their origins are
very dissimilar in date and in kind. One of the roots of the
negotiable instrument must be sought in the need to circumvent
some very primitive restrictions found in many bodies of archaic
law ; but banks and banking do not appear till commerce and
commercial law have attained a relatively high degree of develop-
ment. From the historical point of view, therefore, they must be
treated separately. I shall therefore deal with them separately in
the two succeeding sections.
§ 2. Negotiable Instruments
When these instruments came to the notice of the English
courts in the sixteenth century, they had already attained a de-
velopment which enables us to see in germ the main features of
the negotiability of our modern law. If, therefore, we would
understand the nature of these instruments, which were then
introduced to English lawyers, we must first examine their
mediaeval origins and continental development. It will then be
possible to relate the history of their introduction into England
and their development by the common law.
Medicev.zl Origins and Continental Development
Before I begin to discuss the question of the origins of these
instruments, it will perhaps be useful to concentrate attention upon
the object of our search, by recalling the characteristic features of
negotiability in our modern law. They are three in number : (i)
Negotiable instruments are transferable by delivery if made pay-
able to bearer, or by indorsement and delivery if made payable to
made through a bank that, " consuetudo tamen et stylus mercantilis in Italia et Ger-
mania viget, ut quaelibet promissio, facta in banco, cedat loco solutionis."
VOL. VIII.— 8
114 THE LAW MERCHANT
order ; and the transferee to whom they have been thus delivered
can sue upon them in his own name, (ii) Consideration is pre-
sumed, (iii) A transferee, who takes one of these instruments in
good faith and for value, acquires a good title, even though his
transferor had a defective title, or no title at all. Thus the ques-
tions which I must try to answer are, first, what were the germs
from which instruments having these qualities were developed ;
and, secondly, what were the technical processes by which this
development took place?
In order to solve these questions I must start by giving some
account of certain documents, in which a person places himself
under a liability to pay or perform something, either (a) to the
creditor or to someone else nominated by the creditor and pro-
ducing the document, or (b) to the nominee of the creditor producing
the document, or (c) to the creditor or the producer of the docu-
ment, or (d) to the producer of the document simply. These
documents come from a very early period in the history of law,
and were not necessarily confined to mercantile transactions.
But, with the development of commerce, they necessarily came to
be used most frequently in these transactions. However, in the
sixteenth century, their commercial usefulness was almost entirely
destroyed, because the lawyers, under the influence of the technical
conceptions of the civil law, so construed them that they lost the
negotiable characteristics which they had formerly possessed. The
merchants were therefore obliged to evolve some other expedient.
This expedient was found in the adaptation of another kind of
instrument which, in the late thirteenth and early fourteenth cen-
turies, had been invented for the purpose of effecting an exchange
of money without incurring the risks of its physical transportation.
This instrument was the Bill of Exchange. This new and
essentially commercial document gradually attracted to itself some
of the qualities which these older documents had originally pos-
sessed ; and, as it was in connection with these bills of exchange
that the characteristic features of the negotiability of our modern
law obtained their final form and recognition, they naturally came
to be regarded as the type and model of the negotiable instru-
ment. Naturally this development led to a revival of the
negotiable qualities of some of those older instruments which had
lost their negotiable characteristics in the course of the sixteenth
century.
I shall therefore group my account of these developments under
the two following heads : firstly, the early documents authorizing
the debtor to pay the creditor or his nominee, or the creditor or
the producer of the document ; and, secondly, the origin and develop-
ment of the bill of exchange.
ORIGINS AND DEVELOPMENT 115
( I ) The early documents authorizing the debtor to pay the creditor
or his nominee, or the creditor or the producer of the document.
Even in modern times the legal consequences of negotiability
are exceptions to the ordinary rules of law. In ancient law any-
thing approaching a negotiable instrument was legally impossible,
for three reasons. Firstly, ancient systems of law do not allow one
man to represent another in litigation before a tribunal. When
this prohibition began to be relaxed, representation was at first an
exceptional privilege, and the representative must be formally and
solemnly appointed.1 Secondly, ancient systems of law do not
allow a creditor to assign his right to another.2 That the relation
of debtor and creditor was a strictly personal relation is obvious
from the strictly personal character of the creditor's remedy — he
could even imprison the debtor. Therefore it was only just that
the creditor and the creditor alone should be able to enforce his
claim.3 Thirdly, such a transfer, even if otherwise permissible,
was impossible, because there could be no transfer of anything
without a physical delivery of possession ; and how can the right
to enforce the payment of a debt be physically transferred ? 4
In Northern Italy many of these difficulties were circumvented
by the Lombard lawyers of the eighth and ninth centuries. They
resorted to two different sets of expedients. In the first place, they
drew up documents in which the person liable promises perform-
ance not only to a specified creditor, but also to any one who
produces the document as the creditor's nominee.5 Thus in 771 a
monk made over to a church the right to avenge his death if he
1 Brunner, Les Titres au porteur francais du moyen age, N.R.H., x 12-16 ; cp.
vol. ii 315-317 ; Professor Wigmore has pointed out to me that Brunner's conclusions
have been combated in an essay by Brandileone, published in 1903 by J. Vallardi, Milan,
which is a reprint from vol. i of Rivista di diritto commerciale e maritimo ; but that
Brunner's views have been vindicated in a later essay by Mario Palazzo, La question
dell' origine del titolo a portatore (1905, Torino, Tipografia Salesiana, Via Cottolango,
32) at pp. 54, 87, 115.
2 Brunner, op. cit. 16-19; V<>1. vii 518, 520-521; for the manner in which the
influence of the civil and canon law made for a modification of this rule, see below
"7. !23-
3 " Pas plus qu'on ne s'explique aujourd'hui un changement du d£biteur sans
l'assentiment du creancier, pas plus on n'aurait compris autrefois la substitution d'un
creancier a un autre. Cela tenait encore a ce que les durs moyens de coercition dont
les cr£anciers etaient armes, la contrainte par corps, par exemple, pouvaient etre
manias de facon tres diverse, suivant l'humeur des personnes qui avaient a les faire
valoir," Brissaud, Hist du droit francais, ii 1434 ; as Marquardus, De Jure Mercatorum
et Commerciorum, says (ii 7, 10) speaking of later law: "Nee enim creditoris petitio
ipso invito immutari aut ipsi alius debitor obtrudi, licet debitoris actio et chirographum
a creditore invito debitore alii cedi possit, cum ejus non intersit cui solvat"
* Vol. iii 92 n. 10; vol. vii 518 ; cp. Jenks, Essays, A.A.L.H., iii 65, 66.
5 Brunner, op. cit,, 31 ; Jenks, op. cit, 61, 62 ; many examples can be found in
the Codex Cavensis, a collection of deeds from the archives of the Cluniac monastery
at La Cava near Salerno, and now published (see Jenks, op. cit. 60, 61) ; the other
collection which illustrates this expedient will be found in vol. v of Memorie e Documenti
per servire all' istoria del Ducato de Lucca ; it contains a reprint of the cathedral docu-
ments from the seventh to the tenth centuries (Jenks, loc. cit.).
116 THE LAW MERCHANT
should be murdered, and the right was to be enforced, "per se vel
per ilium hominem cui ipse hanc cartulam dederit ad exigendum." *
Similarly it was provided that a performance should be made to a
creditor, "vel cui istum breve in manu paruerit in vice nostra." 2
In the second place, they drew up documents in which the person
liable promises performance, sometimes to the creditor or the pro-
ducer of the document, sometimes to the producer of the document
simply.3 Thus, in the middle of the ninth century, a person
promised, "tibi aut eidem homini qui hunc scriptum pro manibus
abuerit,"4 or "mihi seu ad hominem ilium apud quern brebem
iste in manu paruerit " ; 5 and in the middle of the tenth century a
person promised, " ad hominem apud quern iste scriptus paruerit." G
It should be noted that these clauses are to be found in many
various kinds of documents. They are to be found in wills and
conveyances as well as in documents which acknowledge indebted-
ness. Thus an example of the year 1036 is thus described by
Professor Jenks : 7 "A certain 'comes Petrus ' by his will left the
guardianship of his wife and all belonging thereto to h\s germani
Malfred and John, or illi vivo cui scriptum in manu paruerit. Thirty
years later, a certain clerk John appeared in court as guardian of
the widow, and was accepted as such without a question on pro-
duction of the document. " But it is clear that they could be used
in documents which acknowledged that the debtor owed money to
a creditor, just as easily as in documents in which a testator or a
settlor conveys benefits to a named person. And that documents
of this kind spread over Europe in the thirteenth century there is
much evidence. Brunner has shown that both varieties were well
known in France in this and the following centuries.8 In England
they were known to Brae ton under the name of missibilia} In
the fair courts we meet with scripta obligatoria, which could be
enforced sometimes by the certain attorney or the nuncius of the
creditor, sometimes by the producer of the document.10 In the
Mayor's Court in London in 1 304-1 305 an action of detinue was
brought for two bills of £yo 15s. nd., "which the plaintiff had
bought from William Foundepe, merchant."11
The effect given to these clauses helped to get over the three
difficulties which prevented the recognition of anything like a
negotiable instrument.
1. If a debtor had promised to pay the creditor or his attorney
or nuncius, many of the difficulties attaching to the representation
I Jenks, op. cit. 61. 2 Ibid 61, 62. 3 Ibid 62 4 Ibid.
5 Ibid. " Ibid. 7 Ibid 63, 64.
8 Brunner, op. cit. 32-36 (examples of clauses to bearer) ; ibid 162-169 (examples
of clauses to order) ; cp. Brissaud, op. cit. ii 1438.
9 At f. 41b ; P. and M. ii 225. 10 Vol. i 543 ; vol. v 114.
II Thomas, Calendar of early Mayor's Court Rolls 172.
ORIGINS AND DEVELOPMENT 117
of a litigant before a tribunal disappeared. It is true that the title
of the plaintiff to be the representative of the principal must be
proved. It is true also that in these early days he must be formally
appointed like any other representative. But the fact that the
debtor had bound himself to pay to the creditor or his nominee
prevented him from raising any objection to the appointment1 In
these cases, however, it is clear that the instrument can hardly be
said to have had anything like a negotiable character. The nominee
sued as the creditor's agent. Defences good against the principal
were good against him.- The death of the principal put an end
to his authority ; 3 and the representative could not delegate his
powers to another representative.4 Probably the rights of the
nominee were larger, he had a more independent position of his
own, if the debtor had promised to pay any one nominated by the
creditor, and the nominee sued, not as agent, but in his own name.
As the debtor could not question his authority or his title to the
instrument on which he sued, an instrument with the clause per-
mitting the nominee to sue in his own name probably did possess
certain negotiable characteristics.5 At any rate, we shall see that
this was the case in the thirteenth and fourteenth centuries.'' But
it was the instruments enforceable by the creditor or the producer,
or by the producer simply, which possessed these negotiable
characteristics in a far higher degree.
2. Instruments containing this clause got over the difficulty
that a debt could not be assigned, and sometimes put the assignee
in a better position than his assignor. If a debtor had promised
to pay to the creditor or the producer of the instrument, or to the
producer simply, the producer could sue in his own right as if he
were the creditor." He was the " dominus litis," or the "seigneur
de la chose," 8 as a French custumal calls him. The death of the
original creditor did not affect his right to sue.9 He need not show
1 Brunner, op. cit. 169, clearly explains the advantages of this ; when the right to
represent another was restricted, the consent of the defendant to be sued by the plaintiff's
representative would get over the difficulty : " seulement ce consentement etait
probablement tres difficile a obtenir, lorsqu'il n'etait demande que dans le but de com-
mencer le proces, car le defendeur avait tout interet a ne pas faciliter la procedure au
demandeur. Mais si le crgancier s'etait assure d'avance le consentement du debiteur
dans le contrat meme, si le debiteur s'etait oblige par la reconnaissance de payer even-
tuellement au mandataire ou procureur du creancier, le debiteur poursuivi en justice ne
pouvait pas s'opposer a l'admission du representant du demandeur."
- Ibid 170. 3 Ibid op. cit. iS ; cp. Brissaud, op. cit. ii 1438 n. 5.
* Brunner, op. cit. 174.
5 Ibid 169, 179 ; cp. Debray, These, De la clause a ordre [1892] 30-32 — in some
of the French provinces he was allowed to sue on his own account, though a stranger
to the original contract ; Debray, op. cit. 31-32, points out that as late as 1437 the
custumal of Anjou and Maine stated that " Ne aucun ne peut recevoir convenance pour
autre si ce n'est pour son proufitt ou si ce ti'est dc son commandement.'"
6 Below 120 ; last note.
7 Brunner, op. cit. 39, 40, citing Bouteiller, Somme Rurale.
8 Ibid. » Ibid 41.
118 THE LAW MERCHANT
how he came by the document.1 Defences available against the
original debtor were probably not available against him.2 He
was in a sense a party to the contract because he is the producer
of the instrument, and it was the producer that the debtor had
contracted to pay. When he sues upon the instrument he is there-
fore asserting a right of his own,3 and can sue either personally or
by agent.4 It follows that these instruments, and the rights con-
ferred by them, could freely circulate from hand to hand.
3. The third difficulty in the way of transferring a right to
receive a debt — the difficulty that there can be no transfer without
the physical delivery of some res — was removed by the growth of
the idea that there can be a symbolical transfer, by the delivery of
the charter which witnesses the transfer.5 The Anglo-Saxon land
book may have been used, not merely as the evidence of a con-
veyance, but as the conveyance itself; 6 and though in later times
the royal courts in England refused to allow this efficacy to a deed,
abroad this method of conveyance was well recognized.7 It was
certainly so recognized in Lombard law,8 and the influence of
Roman law made for its extension.9 Now it is clear that this
conception is capable of development ; and it is the more possible
to develop it in primitive systems of law, in which the lines between
property and obligation, between conveyance and contract, are by
no means clearly drawn. In this primitive period the charter
which made a contract was regarded as the contract itself; and its
traditio clinched the bargain.10 Therefore any one into whose hands
this charter came could present it to the debtor and demand its
1 Brunner, op. cit. 43, 44, 148.
2 Ibid 41, 45, 151, 152; on this point Bouteiller is silent; Brunner says that he
could not be met by the plea of set-off, as this plea was excluded in all personal actions,
and only permitted to a debtor as a special privilege given by the king ; and at pp.
151, 152, probably not by any defence if he had taken in good faith.
3" Puisque le porteur d'icelle a encommance" la cause et petition des dictes lettres
en court, il est fait seigneur de la poursuyte et action d'icelles entierement, et en peut
faire comme il luy plaist, perdre ou gaigner en jugement, si comme pure ct principale
partie, ct faire quittance ou don, comme bon luy semble," Bouteiller, Somme Rurale,
f. 151, cited Brunner, op. cit. 40; as Brunner says (ibid 47) : " A l'egard du debiteur
le porteur est regarde comme creancier ; c'est lui qui intente Taction et conclut a la
condamnation du debiteur aux depens."
4 Ibid 40; of course, he cannot transfer after proceedings have been begun, ibid.
6 Vol. iii 222-223 ; " La charte est placed souvent sur la meme ligne que la festuca
ou le wadium, sans doute parce qu'elle a la meme efncacite' : on fait tradition par le
rameau ou par la charte," Brissaud, op. cit. ii 1395 n. 3.
6 Vol. ii 77 ; vol. iii 223. 7 Ibid 223-225.
8 Jenks, op. cit. 65.
9 Brissaud, op. cit. ii 1284, 1302- 1305.
10 " On s'oblige per cartam comme par la festuca ou le wadium, et, l'influence ger-
manique agissant, ce n'est pas seulement la redaction de l'acte qui est prise en con-
sideration, c'est sa remise mat6rielle au cr^ancier. . . . L'ignorance et la defiance
. . . ne durent pas peu contribuer a rapprocher la carta des symboles mat£riels en
usage pour le transfert de la propriety et la formation des contrats," Brissaud, op. cit.
ii 1395-
ORIGINS AND DEVELOPMENT 119
enforcement, if the charter had so provided.1 Thus, by means of
these charters, in which the debtor had promised to pay the creditor
or producer, or the producer simply, the property in a debt could
be transferred with the writing from hand to hand.
In these ancient documents, therefore, we can see that methods
had been devised for breaking down the archaic formalism of
primitive law, which would otherwise have prevented the growth
of anything like a negotiable instrument But as yet these methods
were crude and unformed. They must be developed by legal
theory and commercial practice before the negotiable instruments
of our modern law could be evolved from them. And legal theory,
for a time, was hostile to their development. In many different
places, and at many different times, the lawyers have been slow to
learn that their technical rules must, in the long run, accommodate
themselves to business needs — that commercial law exists primarily
to settle mercantile disputes, and not to dictate to the merchants
the modes in which they shall carry on their business. These in-
struments were absolutely necessary to commerce ; and it was
therefore inevitable that legal technicalities should, in the long run,
yield to mercantile necessities. But the marks of the conflict can
be plainly read in the law which resulted ; and it is, therefore, not
till this conflict has been fought out and decided, that the modern
incidents of the negotiable instrument appear. The first stages of
this conflict can be read in the history of the development of these
clauses in favour of the creditor's nominee, or of the producer of the
document, which we have just been discussing.
The clauses in favour of the creditor* 's nominee. — We find in the
Middle Ages many varieties of these clauses. They fall into two
main classes, (i) There is the class in which the representative
character of the nominee is not prominent, and (ii) there is the
class in which it is clearly emphasized.2 And in both classes the
clause is sometimes alternative, i.e. the promise is to pay to the
creditor or his nominee; and sometimes simple, i.e. the promise is
to pay to the nominee.3
(i) Instances of clauses of the first class are promises to pay to
you, the creditor, vel cui mandaveris ; or to pay mandato tuo, or
tibi vel mandato tuo, or tibi vel certo mandato ; or to pay to X or
a son command, son certein command, son commandement , or
mandement ; or to pay to X on a son command ces lettres portant ;
1 Brunner, op. cit. 150, 151, compares his position with that of the Salman : " Le
porteur, simple mandataire, est regards comme crdancier, le salmann, egalement
simple mandataire, est regards comme proprietaire. . . . Le poiteur, de memeque le
salmann, n'agit pas, en ce qui concerne la forme, comme fonde de pouvoir du
mandant, mais en vertu de son propre droit, le porteur comme creancier fiduciaire, le
salmann comme proprietaire fiduciaire " ; for the Salman see vol. iii 563-564 ; vol. iv.
410-412.
3 Brunner, op. cit., 169, 170. 3 Ibid 162-169.
120 THE LAW MERCHANT
or to pay ei quern tnihi ordinaveris} It was this last formula — to
pay to the order of — which was destined, as we shall see, to
supersede the others.2
(ii) Instances of clauses of the second class are promises to pay
to X vel procuratori suo, ou a leur procureur pour eulx et en leur
nomt suo attornato, certo nuncio suo; or to pay nuncio or attovnato
litteras deferenti, or a son certain message qui ces lettres apportera?
It is probable that in the thirteenth and fourteenth centuries
the legal effects of these two classes of clauses were very different.
A nominee who sued in his own name on a document which con-
tained a clause of the first class, could rely on the promise of the
debtor to pay such a nominee. He need not prove any causa for
the transfer to himself. He need not prove his title to sue as
agent, or his title to the instrument, for he is in effect suing as
creditor under the instrument. On the other hand, a nominee who
sued in his creditor's name on a document which contained a clause
of the first class, or a nominee who sued as agent on a document
which contained a clause of the second class, was treated strictly as
an agent. He must prove his authority, and all defences good
against the principal were good against him.4 Whichever clause
was used, the nominee could not transfer his rights to another.
In this respect it differed entirely from the document made pay-
able to the producer, which could pass from hand to hand to an
unlimited extent.5
1 Brunner, op. cit. 162-166.
2 The clause " vel cui ordinaverit M is found in a Genoese document of May 18,
1160 : " Nos Bonusiohannes Tinea et Adalasia jugales accepimus a te Wilhelmo
Burone libras X den. januens, quas tibi vel tuo misso per nos vel nostrum missum
dabimus ... si non in Sicilia dabimus nuncio tuo Jonathe Cerriolo ant ci quern tnihi
ordinaveris uncias auri vi," Mon. patriae Chart. II., no. 882, col. 650, cited N.R.H.
x 165 ; as Brunner says (ibid 165, 166), the clause to order became the usual
clause in bills of exchange in the seventeenth century, and ' ' Comme en France, la
formule ' a l'ordre,' qui vient d'ltalie et qui est maintenant devenue internationale, a
aussi supplants presque completement en Allemagne les anciennes clauses a ordre
nationales, parmi lesquelles la formule, ' oder an den getreuen Inhaber (ou au fidele
porteur),' avait £te" la plus usitee dans les derniers temps."
3 Brunner, op. cit. 167, 168.
4 " Le command et le procureur different en ce point que le premier avait une
plus grande liberte d'agir. Le command peut plaider en son nom propre . . . il
peut fonder son action sur'le fait qui sert de cause a la tradition de la lettre. Mais
la cause peut aussi rester occulte vis-a-vis des tiers, car le d^biteur a promis de payer
a la personne denomm£e ou a celui ' cui mandavcrit.'1 Le command peut done
invoquer le seul ordre du principal de payer au command, sans indiquer la cause
de la tradition. Quand le command agit en ce sens, la difference qui existe, pour
le fond, entre le representant et le crdancier, disparait dans le procrs. . . . Le pro-
cureur n'est pas aussi libre que le command dans la maniere de fonder son action.
La teneur meme de la clause de procuration l'oblige d'intenter Taction au nom du
principal et d'invoquer la procuration que le principal lui a donnee a l'effet de se
i'aire representor en justice. . . . Les exceptions n£es de faits personnels au principal
peuvent etre oppos^es au representant," ibid 169, 170.
5 " Le titre pourvu de la clause a ordre n'admettait qu'une seule transmission, car
le command dtait oblig^ de prouver que le titre lui avait etc remis par la personne
d^nommce, Ordinairement il etablissait cette preuve par un mandatum ecrit de la
ORIGINS AND DEVELOPMENT 121
These clauses in favour of the creditor's nominee had become
rare in the fifteenth century ; and in the sixteenth century they
had disappeared.1 In the first place, the lawyers, under the in-
fluence of the technical conceptions of the civil law, ignored the
older difference between these two classes of clauses, and laid it
down that the creditor's nominee could sue only in the capacity of
the creditor's agent2 In the second place, the greater convenience
of the clauses enabling the producer of the document to sue
caused them to supersede these clauses in favour of the creditor's
nominee.3 It was not till the seventeenth century that these
clauses reappear, in the form of the clause to order of our modern
law, in connection with an entirely different class of instrument.4
But in order to understand the reasons for this new development
we must know something of the history of the clauses in favour of
the producer of these documents.
The clauses in favour of the producer of the document. — Just as
from the clauses in favour of the creditor's nominee the clause to
order of our modern law is ultimately derived, so from these clauses
in favour of the producer of the document springs our modern
clause to bearer. The position of the producer of one of these
documents, in the thirteenth and fourteenth centuries, almost
exactly corresponds to the position of the bearer of a negotiable
instrument. I shall, therefore, for the future speak of him under
his modern name of bearer.
We have seen that the bearer was allowed to sue upon the
contract in his own right, because the debtor had contracted to
pay the creditor or the bearer of the document, or the bearer of the
document simply.0 This was his position in France, and probably
in other countries also, till the end of the fourteenth century.6
But, at the end of the fourteenth century, we can see that the same
body of doctrine which had destroyed the independent position of
nominee of the creditor is beginning to affect the position of the
bearer. As with the creditor's nominee so with the bearer, the
lawyers were beginning to reduce him to the position of the agent
of the creditor."
This change in the position of the bearer is due, as Brunner
personne denommee. Le titre a ordre ancien se distinguait, a cet egard, essentielle
ment du titre au porteur, qui pouvait circuler par plusieurs mains," Brunner,
op, cit. 174.
1 Debray, op. cit. 35-37, " Au xvie siecle elle a disparu ; toutes les formules qui
la contenaient l'ont remplacee par la clause au porteur ; la comparaison entre la
Summe artis notaria et le Stile des notaires est saisissante a ce point de vue."
2"Onn'y vit plus qu'un mandat," ibid 36. The form of the clause — *' vel cui
mandaveris " — helped this development.
3 Ibid 35. 4 Brissaud, op. cit. ii 1440.
"Above 117-11S. 6 Cp. Brissaud, op. cit. ii 1438 n. 1.
7 The history of this process in France is worked out in great detail by Brunner,
op. cit. 139-147,
122 THE LAW MERCHANT
has pointed out,1 to the fundamental difference existing between
the Germanic and the Roman procedure. As he says, " The
Germanic procedure does not ask, What is the right of the plain-
tiff? Its point of view is the duty of defence, and the means of
defence open to the defendant. The main question in these
personal actions is the question whether the defendant is or is not
bound to pay ; and his obligation to pay the bearer is the direct
consequence of the form of his promise to pay." But in the
procedure of the civil and canon law the point of view is the right
of the plaintiff. The assertion of that right is the object of the
action. Thus, " this system, in which the first question is always,
Has the plaintiff a right of action? made it necessary for the
French lawyers to find some explanation of the bearer's right of
action. They found it necessary to discover some legal basis on
which they could rest it." Probably this difficulty was especially
keenly felt by the French lawyers, because the Renaissance school
of jurists, which was especially influential in France, endeavoured
to get back as far as possible to the classical texts.2 They there-
fore rejected many of those modifications of pure classical doctrine,
which the influence of the older customary law, and commercial
convenience and practice, had caused the school of the glossators
to accept. But the difficulty was not confined to the French
lawyers. It was felt in Italy, and indeed in all countries in which
Roman law was received, in proportion to the extent to which the
doctrines of that law gained supremacy.3 The lawyers were at
once learned in the classical texts of Justinian's Corpus Juris, and
ignorant of the modern mechanism of commerce. They did not
hesitate, therefore, to sacrifice commercial convenience on the
shrine of legal orthodoxy — even suggesting that the merchants
purposely adopted obscure forms in order that illegal transactions
might pass unnoticed.4 On the other hand, the technical difficulty
was not felt so keenly in Northern Europe,5 nor, as we shall see,
1 Brunner, op. cit. 154, 155. 2 Vol. iv 225-228.
3 Below 123 nn. 3 and 5.
4 Scaccia, Tractatus de commerciis et cambio (§ 1 Quaest. ii 16), explaining the
difficulty of this branch of the law, says that difficulties arise " Propter concisos et
nostris jurisconsultis incognitos terminos quibus negotiatio haec brevissimis conficitur
litteris, adeo quod materiam istam cambii esse in se difficilem intellectu . . . et esse
difficilem propter extraneos terminos quibus mercatores utuntur . . . imo posset quis
probabiliter dubitare, cambiorum negotiatores de industria hunc concissum abstrusum
et perplexum loquendi, contrahendique modum excogitare, ut jurisconsult'', aliique
docti viri, ignoratis cambiorum ter minis, ea damnare nesciant."
6 Thus Marquardus. De jure Mercatorum et Commerciorum (ed. 1662) ii 14. o,
says : " Notandum et hie per clausulam vulgatam, Eive qui hanc fert, ex more inter
mercatores frequentissimo syngraphis inseri solitam, latori non solum adjecto
recte, solvi, sed et actionem ei a creditore mandatam cessamque praesumi . . . imo
nee eum titulum ostendere nee bonam fidem probari necesse habere " ; cp. ibid ii
7. 8-10, where he explains that an unlimited number of indorsements may be
made ; " Delegans mercator et creditor Dantiscanus per cambii solutionem tertio
ORIGINS AND DEVELOPMENT 123
in England. It is probable that in these places the older ideas
lived on, and saved the lawyers the trouble of finding a new
speculative basis, consonant with the doctrines of Roman law, upon
which the peculiar characteristics of negotiable instruments could
be based.
The difficulties felt by the lawyers of the sixteenth century
were solved by another adaptation of the theory which had proved
fatal to the usefulness of the clauses in favour of the creditor or his
nominee.1 The old French law had allowed that a stipulation in
favour of another, in the form of a promise to pay the bearer, was
valid.2 But in Roman law such promises in favour of a third
person were not valid ; and therefore the school of the commen-
tators denied their validity.3 Promises in this form were, however,
comparatively rare. It was more usual in the Middle Ages for
these promises to be drawn up in favour of the promisee or bearer.4
These promises were valid because the promise was made to the
other contracting party as well as to the bearer, and the bearer
could be regarded as a person solutioni adjectus. But it followed
that he had no original or independent right of action on the con-
tract.5 This solution was, after a period of controversy, adopted in
France, and ousted the older customary law, which had allowed
the bearer an original and independent right of action.6
mercatori Hamburgensi faciendam, debitori suo Lubecensi novum creditorem con-
stituere potest vice sua ; rursumque fieri potest ut huic tertio. Hamburgensi novus
quoque constituatur creditor ; quam delegationem stylus et observantia mercatorum
vocat inductionem."
1 Above 121.
3 Debray, op. cit. 31-32, citing the custumal of Anjou and Maine; above 117
n. 5-
3 Brunner, op. cit. 140 : " Bartolus, Baldus et d'autres jurisconsultes font, dans
les contrats qui ont pour objet le paiement a faire a un tiers, une distinction entre le
verbnm obligativum sen obligationis, promissionis stipulations, d'un cote, et le vcrbv.m
executivum sen executionis, d'autre cote. Si la stipulation etait concue dans ces
termes : promittis Mi quod dabis Mi ? le vcrbum obligationis portait sur le tiers et la
stipulation gtait regarded comme nulle. La stipulation portait-elle : promittis mihi ut
dabis Titio ? le vcrbum obligationis se rapportait au stipulant, le verbum executivum
au tiers et le contrat etait valable " ; after a period of hesitation it would seem that in
France a promise made to the bearer simply was treated as a promise to the promisee
or bearer, ibid 160, 161.
* Ibid 148.
5Straccha, De Adjecto, Ft. iv 8. 1 (Tractatus Juris vi Pt. I, 400): " Quaero,
octavo, solent mercatores se debitores constituere in haec verba : — Lucius Titius
obligavit se Maevio ad mille ex causa mercium habitarum, solvereque promisit
calendis Febuariis eidem Maevio, seu ei qui chirographum exhibuerit, et (ut ipsi
dicunt) a chi il presentara. Finge modo Sempronium habere chirographum, et exhibere.
Num adjectus constitutus censeatur, seu magis jus agendi Sempronio competat ?
Quaestio hasc et quotidiana et utilis est valde, in qua prima fronte respondendum
videatur adjectum Sempronium constitutum . . . unde sequitur hunc petitionem non
habere " ; Scaccia, op. cit. § 2, Gloss. 7. 41 : " Etiam si adjectus haberet penes se
scripturam, in qua stat adjectus, illamque in judicio produceret, quia ilia habitio et
productio non sunt apta ad acquirendum obligationem, et consequenter remaneret
adjectus, qui nomine proprio non potest agere."
6 Brunner, op. cit. 139-147 ; Brissaud, op. cit. ii 1438-1439.
124 THE LAW MERCHANT
This development was assisted by the fact that even in the old
customary law Roman phrases importing agency appeared. Pay-
ment was to be made to X or bearer or agent.1 Gradually more and
more stress was laid upon these phrases. The bearer ceased to be
described, as some of the older authorities describe him, as an
agent of a very peculiar kind, in that his authority need not be
proved and could not be revoked.2 He sank to the position of an
ordinary agent. The result was that, whether he was regarded
as a person adjectus solntioni, or as an agent, he had no independent
right of action. In order to sue he must prove,3 or it must be
presumed,4 either that he has been appointed the agent of the
creditor, or that the creditor has transferred to him his rights by
making him a procurator in rem suam.5
The result was that the negotiable character of these instru-
ments disappeared. If the bearer sued as agent his authority to
sue must be proved, and it could be revoked. In any case it was
revoked by the death of the creditor — " home mort n'a porteur de
lettres." 6 If he sued as transferee an act of transfer must be proved
— "un simple transport ne saisit point," i.e. the mere delivery of
the instrument gives the bearer no right to sue for the debt ; and
the transfer must be notified to the debtor.7 Before notification of
1 Brunner, op. cit, 155 : " 11 est tres probable que la clause an porteur et procureur
. . . doit son origine aux tendances faites pour mettre hors doute Taction contestee du
porteur par l'addition du mot procureur, parce qu'une disposition des Institutes regarde
comme valable la stipulation mihi ant procuratori /nco."
2 Ibid 39-49.
3Scaccia, op. cit. § 2, Gloss. 7. 41 : " Intelligo tamen quod non potest [sc. petere]
proprio nomine, secus autem nomine procuratorio."
4Straccha, op. cit. Pt. iv 8. 8-10, admits that if a person produced an instrument
authorizing payment to be made to the bearer, a presumption of agency might arise
from the possession of the instrument, and that such person could sue without being
obliged to give the cautio de rato ; Scaccia, op. cit. § 2, Gloss. 7. 55, agrees, though
it appears (ibid 55-66) that the point was controverted ; but he concludes, " quicquid
possit dici in puncto juris non est recedendum ab extensione quia servatur in praxi " ;
for similar rules in France, see Brunner, op. cit. 142-144 ; but this was only a pre-
sumption which could be rebutted, e.g. if it were proved that the creditor had for-
bidden the debtor to pay the bearer, ibid 144.
5 Straccha, op. cit. Pt. iv 17. 36 (Tractatus Juris vi Pt. I 404b) : " Reliquum est
ut illud non ignoremus et ipsi adjecto actionem competere quando constitutus esset
adjectus in rem suam"; Brunner, op. cit. 146, 147, citing Dumoulin and Charondas
de Caron ; the latter, commenting on Bouteiller, Somme Rurale, says : " Ce qu'il
diet icy du porteur de lettres mihi probari non potest . . . faudroit pour agir en son
nom et en exclure le principal crdancier qu'il eut cession et transport de luy ant
mandatas actiones. Et ainsi nous en usons."
fi This maxim appears in both parts of a collection of Parisian judgments, customs,
and maxims by Jean Desmares which comes from the latter half of the fourteenth
century, Brunner, op. cit. 49 ; it is quite contrary to the rules contained in the first part
of that compilation, and other writers, e.g. Bouteiller, deny it, or explain it : " Elle
n'a done pas toujours et& en vigueur dans le droit francais : elle doit, au contraire,
son origine a l'application faite aux titres au porteur des principes du droit romain sur
mandat," ibid 50.
7 For this maxim and its meaning see ibid 27-29; Brissaud, op. cit. ii 1435-
1436 ; it appears in the Coutume de Paris of 1510, art. 170, and its meaning, as ex-
plained in La Nouvelle Coutume of 15S0, art, 108, is that mere delivery of the
ORIGINS AND DEVELOPMENT 125
the transfer to the debtor, the debtor can pay the transferor ; and
a later transferee, who is the first to give notice, can gain priority
over an earlier transferee who has omitted to give notice. From
this point of view some lawyers expressly contrasted a transfer of
property, for which a mere traditio sufficed, with the transfer of a
debt, for which a mere delivery of the instrument creating the debt
did not suffice.1 Finally, whether the bearer sues as agent or as
transferee, the defences good against the creditor are good as
against him.2
It is hardly necessary to say that the commercial world was
seriously inconvenienced by these developments of legal doctrine.
The older instruments made payable to the creditor or his nominee
had disappeared, and given place to these instruments payable
to bearer ; and now the negotiable character of these instruments
to bearer had been destroyed. The merchants at first had recourse
to instruments in which the name of the creditor was left blank, so
that the ultimate transferee could fill in his own name.3 But in
France these instruments were declared illegal by several decrees
of the Parlement of Paris;4 and in 1716 instruments payable to
the bearer only (except those issued by the state or by Law's
bank) were declared to be illegal.5 But in 1721 it was found
necessary7 to repeal the edict of 17 16, and to permit expressly
instrument will not operate as an assignment without notice to the debtor or some
act equivalent thereto ; its origin is not very clear ; under the influence of the canon
and civil law the instrument constituting the debt came to be regarded as the proof of
the debt merely, not the debt itself, Brissaud, op. cit. ii 1436 n. 3 ; Brunner, op. cit.
180, 181 ; it followed that a mere transference of the instrument could not trans.'er the
right to collect the debt — something more was needed, equivalent to a livery of seisin
in the case of property ; in France, as in England, some physical act was needed to
transfer an incorporeal thing, such as a rent, vol. iii 97-99 ; Brunner suggests that
this rule was applied to debts — notice to the debtor being recognized as a sort of livery
of seisin. We thus get a curious parallel to the English rules as to the effect of notice
given by the assignee of a chose in action to the debtor, and the rule in Dearie v. Hall
(1828) 3 Russ. 1 as to the effect of notice to the trustees upon the priority of equitable
charges on a trust fund of chattels personal ; the history of the latter rule would seem to
show that it was arrived a: quite independently, see Ward v. Duncombe [1893] A.C.
per Lord Macna^hten ; perhaps the existence of this foreign parallel shows that there
is more substantial justice in it than Lord Macnaghten was inclined to allow.
1 Straccha, De Adjecto, Pt. iv 8. 3, cites authority for the proposition that traditio
suffices for corporeal things, "sed si traderem tibi instrumentum in quo continetur
nomen debitoris mei ex traditione hujusmodi instrumenti non videor actionem cessisse,
•quae mihi contra debitorem meum competebat " ; but he does not agree with this,
and points out that the cession of such an instrument animo donandi may operate as
a cession of the right of action ; or, if the animus donandi is not proved, it may raise a
presumption that the assignee has been made the agent of the assignor to sue for the
debts — but it is clear that the mere transfer will not enable the assignee to sue in his
own name.
2 Brunner, op. cit. 144, 156-157 ; as he says (ibid 147), " les titres au porteur
furent mis au meme rang que les titres a personne denommee " ; for his position see
above 123.
3 Brissaud, op. cit. ii 1438-1439 ; Brunner, op. cit. 159.
4 Ibid. 5 Ibid.
126 THE LAW MERCHANT
instruments payable to bearer.1 Long before this, however, the
development of the negotiable character of the bill of exchange
had supplied the want created by the destruction of the negotiable
character of these older documents.
(2) The origin and development of the bill of exchange.
In dealing with this much controverted subject I shall consider
(i) the mediaeval contract of cambium ; (ii) the machinery devised
for giving effect to this contract ; and (iii) the development of
the negotiable character of the bill of exchange.
(i) The medieval contract of cambium.
The contract of cambium was a special variety of the in-
nominate contract permutatio ; for whilepermutalio was concerned
with exchange generally, cambium was concerned with the special
case of the exchange of money for money. Baldus neatly expressed
the difference between them when he said that permutatio was
a contract by which a species of one genus was exchanged for a
species of another genus, while cambium was a contract by which a
species of one genus was exchanged for another species of the same
genus.2 As trade expanded, and as the machinery of trade grew
more elaborate, this contract tended to occupy a sphere of ever-
increasing importance,3 and to develop a number of different forms
— some, according to mediaeval notions, lawful, and others unlawful.
We must here notice three of the most important of these forms.
{a) It might be merely a contract by which A bargains to give
B coins of one denomination in return for coins of another denomi-
nation {cambium minutum). There was nothing illegal in this
transaction even if A made a small profit on it.4 In England it
was not a trade in which anyone could engage. Till Henry
VIII. 's reign it was in the hands of exchangers authorized by the
king.5 After his reign the trade was thrown open; and state
control was never resumed, though the project of resuming it was
1 " Nous voulons, etc. . . . qu'en tous commerces et negotiations que pourront
faire nos subjets pour pret d'argent, vente de marchandises ou autrement, ils puissent
et qu'il leur soit loisibls d'en stipuler par lettre ou billet le payement au porteur sans
denomination de personnes certaines," cited Brunner, op. cit. 160.
2 Cited Marquardus, op. cit. ii 12, 22, " hoc tantum interesse inter cambium et
permutationem quod haec propria sit speciei ad speciem, illud autem speciei quoque ad
genus " ; cp. Scaccia, op. cit. § 1, Quaest. iv 1, 2.
3 «' Quinimo cambia adeo sunt Reipublicae utilia et necessaria, ut si cambia
cessarent, omnia pene mercaturae officia dissiparentur ac destituerentur," Scaccia, op.
cit. § 1, Quaest. vi 14.
4 Thomas De Vio, De Cambiis 1. 1 (Tractatus Juris vi Pt. I. 405) : " Vocatur autem
cambium minutum quum campsor pro aureo ducato monetam dat consuetam in patria
ilia expendi, vel e converso, aliquid minus dando quam recipiat. Hoc enim continet
naturalem aequitatem, ex quo quod industria et opere campsoris ratio habenda est."
5 Cunningham, Industry and Commerce i 283-284, 362, 432 n. 6; Malynes, Lex
Mercatoria 260, 261; Tawney, Wilson on Usury 138-141.
ORIGINS AND DEVELOPMENT 127
favoured by Malynes, and several attempts were made to adopt it,
the last of which was in 1627.1 Abroad this business was largely
in the hands of the banks ; and in England, in the early seven-
teenth century, it seems to have got into the hands of members
of the Goldsmiths' Company,2 who, as we shall see,3 shortly after
this period began to do a certain amount of banking business.
(£) Under the names of cambium siccum and cambium fictivum
the contract was entered into in order to circumvent the prohibi-
tion of usury ; and these varieties of the contract were unlawful.
They did not cease to be used when the usury laws permitted
moderate interest,4 for they could be employed to conceal the fact
that more than the statutory rate of interest was being charged.
Wilson's treatise on usury gives us a very clear account of cambium
siccum. This "secke or drye exchange," he tells us,5 "is practised
when one doth borrowe money by exchaunge for a strange region,
at longer or shorter distaunce of time . . . not myndynge to make
anye reall payment abroade, but compoundeth with the exchanger
to have it returned backe agayne, accordyng as the exchaunge
shall passe from thence to London, for such distaunce of time as
they were agreed upon : and yet to colour this matter, there shall
billes of exchange be devised and sent to some of his frendes that
lent the money by exchaunge, with letters of advise, to return the
byls back againe, and a testimoniall howe the exchaunge commeth
from thence . . . which retourninge of billes by testimoniall, doth
ever cost the partye that dealeth with this sorte of exchaunge,
after the rate of sixteene and twenty in the hundred for the yere
. . . and some time above five and twenty or thirty in the hundred
for the yere. And bylles by this kinde of exchaunge are made
... for a colour onelie to get the parties hand to them, to shew
(if neede be) that suche moneye so lente, was taken up for him by
exchaunge, the said billes being never sent out of London." Cam-
bium fictivum seems to have been a loan at usurious interest, dis-
guised under the form of a sale of goods in return for a price
which, being supposed to have been borrowed abroad, was there-
fore enhanced by the costs of exchange. Malynes gives us a good
description of this device 6 A merchant, he tells us, not being able
to borrow money, is driven to buy goods " for a shift" The per-
sons to whom he applies for a loan, " feign that they have need of
money, and must sell their commodities for ready money, provided
always (say they with loving protestations) we will pleasure you
thus far, look what the goods come unto, we will take it up for you
1 Cunningham, op. cit. ii 164 ; Tawney and Power, Tudor Economic Documents
ii 167-173 ; Tudor and Stuart Proclamations i no. 1512 ; below 185.
2 Tudor and Stuart Proclamations i no. 15 12.
s Below 185-186. * Above 10S-110.
5 At ft*. 117b, uSa ; see above 106 n. 8. ■* Lex Mercatoria, 261.
128 THE LAW MERCHANT
by exchange for Venice, Lyons, or some other place, so as you will
pay us for exchange, rechange, or any other incident charges :
whereunto the merchant agreeing, then shall he be sure to pay
soundly for the use of the money, and lose exceedingly upon the
wares."
(c) Historically the most important variety of cambium was the
contract by which A agreed with B to transport a sum of money
from one place to another, and to deliver it safe at its destination.1
It is, historically, the most important, because the devices by which
the risks of physical transportation were avoided have a close con-
nection with the origins of many of the institutions of the modern
world of commerce, and of many important branches of commercial
law. In particular it must be regarded as the direct ancestor of
the two institutions with which we are concerned in this section
and the next — the modern mechanism of exchange and banking.
So soon as commerce between distant nations began to be
developed, it became clear that some system of adjusting accounts
was a far safer and easier way of making payments in distant places
than the primitive method of handing over the actual money due.
And, by the end of the twelfth and the beginning of the thirteenth
centuries, the various parts of the machinery needed for making
these adjustments were at hand. The lawyers and the merchants
soon showed that they had sufficient ingenuity to assemble them.
In the first place, the exchangers, whose business it was to give
coins of one state in exchange for the equivalent value of coins of
another state, were necessarily experts in calculating the compara-
tive value of the various debits and credits owed by or to the
merchants of different countries, and in expressing them in the
coinages of different states.2 It was only natural that merchants
who owed money to foreign creditors should entrust the exchangers
with the money needed to make their payments, and authorize them
to pay it over ; and, conversely, that merchants entitled to receive
money from foreign debtors should authorize the exchangers to re-
ceive it and pay it over to them. In the second place, instruments
which were made payable to the creditor or his agent, or to the
creditor or bearer,3 or instruments which authorized payment to be
made either by the debtor or by his agent, afforded a convenient
1 Huvelin, Travaux regents sur l'histoire de la Lettre de Change 4, 5 — it is there
pointed out that the term Cambium has (1) a large sense when used to mean all
transactions relating to money — " contrats sur agent et sur credit par opposition aux
transactions portant sur des marchandises " ; and (2) a narrow sense in which it
means the contract to transport money from place to place; this transport might
either be " ad riscum maris et gentium," i.e. the cairier takes no risks, or "salvum
in terra," i.e. the carrier undei takes the risks of carriage ; and " c'est la derniere forme
qui porte presque exclusivement, d'assez bonne heure, le nom d- cambium."
2 See Huvelin, Le Droit des Marches et des Foires, 543544-
3 Above 115-121.
ORIGINS AND DEVELOPMENT 129
means by which these payments could be made to or by these ex-
changers. The exchanger was appointed the agent or nuntius of
the creditor or debtor, and was the bearer of the instrument. In
the third place, the great fairs afforded such convenient meeting
places for the adjustment of these accounts, that it was a common
practice to make debts payable at these fairs. Thus, from an early
date, they became the clearing houses of Europe. The earliest
fairs to fulfil this function were the fairs of Champagne.1 When
they began to decline, in the course of the fourteenth century, the
fairs of Lyons, Anvers, and Genoa succeeded to this position.2
Professor Huvelin has so clearly and succinctly explained the
manner in which this machineiy was used to obviate the necessity
of a physical transportation of money, that I cannot do better than
copy his description3: — "That we may the better understand this
system, let us take an example. Genoa has business relations with
London and Geneva. Goods have been bought and sold in all
these places. From all of them there are debts to be recovered.
To effect this object is it necessary to resort to the dangerous and
costly process of transporting money? The merchants soon dis-
covered the expedient of regulating their business relations by
means of letters of exchange payable at the same fair. They
stipulated for letters of exchange payable at the fairs of Bar, of
Provins, &c. Suppose that a Genoese was obliged to receive a
hundred livres from his London correspondent. The latter promised
to pay this sum at the fair of Bar, for instance, and remitted to the
Genoese the document in which he acknowledged that he owed this
sum and promised to pay at a fixed date at the fair of Bar. He
then chose in London a banker going to the fair of Bar, to whom
he gave an authority to pay the debt in his name when it fell due.
The Genoese on his side chose at Genoa a banker going to the same
fair. Thus the two bankers played the part of nuntii or missi of
these two parties. When they came to the fair the one was the
bearer of an order to pay, the other of an order to receive payment
of the debt
" But each of these bankers who came to the fair had many pay-
ments to make and to receive ; and the duty to make and the right
to receive these payments originated in obligations made in a large
number of places. If the bankers of Genoa and London were
obliged to pay and receive exactly the same sums from each place,
the settlement would be very easy, since all the debts would be
1 Le Droit des Marches et des Foires, 556, " C'est un usage tres general depuis le
xne siecle, de souscrire des effets de change payables en foire. Les foires de Cham-
pagne sont de bonne heure, selon le mot de Goldschmidt, le domicile de change de
toute V Europe. Nous possedons des lettres de change de 1190, 1248, 1251, etc., pay-
ables aux foires de Champagne."
3 Ibid. 3 Ibid 557-558.
VOL. VIII. — 9
130 THE LAW MERCHANT
extinguished by set-off. But it may well be, and this is the most
common case, that one of these places owed the other more than it
is entitled to receive. Genoa, for instance, may have an adverse
balance as against London. Therefore, if we were only considering
these two places, there would be a considerable debt still owing
which would not be extinguished by set-off.
" But these two places are not the only places represented at the
fairs. All the places of Western Europe are represented there.
Now if Genoa has an adverse balance as against London, it may
well have a favourable balance as against Ypres, Paris, or Geneva.
Genoa has, therefore, a balance of payments to receive from these
places. An unfavourable balance on the one side, a favourable
balance on the other, obviously admits of set of. Genoa can draw
on the bankers of Paris, Ypres, or Geneva to pay her London
creditors. The sum to be liquidated will be the difference left after
all these operations have been carried out. Thus . . . thanks to
the principle of set-off, thanks to the practice of making letters of
exchange payable at the same fair, the work of making payments
will be simplified and shortened. The amount to be paid in money
will generally be insignificant."
Now, it is clear that it is to these developments of the contract
of cambium, that we must look for the origins of the bills of ex-
change and the banks of our modern commercial life. We shall
see that the earliest bills of exchange were instruments devised to
obviate the risks of the physical transport of money ; and that the
earliest bankers were the mediaeval exchangers who dealt in money.1
Merchants who wished to transport money, in order to liquidate
their foreign debts, handed over the necessary sum to an exchanger,
and he drew a bill upon his correspondent or agent in the foreign
country. Conversely, merchants who were entitled to receive
money abroad, made an exchanger their agent to receive the
money due on these bills. To these exchangers, therefore, natur-
ally fell the business of adjusting accounts between different coun-
tries ; and it was through the use made by them of these bills that
they developed into bankers, to whom the merchants entrusted
money to be dealt with according to their instructions. Thus the
origins of bills of exchange and of banking are almost inseparably
connected. In fact, we shall see that it is to the commercial needs
which originated these bills of exchange that we must look for the
explanation of the rise and growth of banks and banking.2
It is clear from the recently published Calendar of the early
rolls of the Mayor's Court of the City of London 3 that the Italian
merchants in England were making use of this machinery. In
1 Below 131-132, 177. - Below 177-178. 3 Edited by A. N. Thomas.
ORIGINS AND DEVELOPMENT 131
1 300 there is a case in which Geoffrey Beble, chaplain, complained
that Antony, rector of Hurtts, while staying in his house, had stolen
£17. He alleged that Antony had taken the money to Brachius
Lumbard of the Society of the Pulci of Florence, and had asked
that it might be paid out to him by the Society in Paris. It
appeared that Brachius had received the money, and that he had
given Antony a letter addressed to the Society of Paris asking
them to pay it Brachius, when summoned, " admitted the receipt
of the money, and said that it had not been paid out in London
or Paris, but that he did not know whether it had been paid by
the Society elsewhere. As the said Antony was not in Court, and
as the Society in Paris had written to the other Societies not to
pay the money, and as it was not known whether any other
Society had already paid, Brachius was forbidden to pay the
money until further orders." l The letter written by Brachius to
the Society at Paris was clearly a bill of exchange, and the later
happenings clearly amounted to an attempt to stop the bill. In
1305 there is another case in which the same machinery of pay-
ment was adopted. Peter de Maners sued Vilanus Stolde and
the Society of the Peruzzi of Florence for 100 marks, which had
been entrusted to them to be paid at Andvers in Brabant a
week later, or failing that in London at Midlent. The receipt of
the money was admitted, but it was alleged that " they had sent
a letter to a partner, John Vyleyn, at Andvers, by John de Maners,
the plaintiffs brother, to pay the money, which they supposed
had been done ; but if the plaintiff would return the letter and
prove that payment had not been made, they would satisfy him." 2
Similarly in a case of 1 302 there is a reference to payment through
an agent at the fair of Turruk.a These instances, I think, make it
clear that this machinery of payment through bills of exchange
was well known at the beginning of the fourteenth century.
At this point we must return to the contract of cambium, and
examine in detail the manner in which the machinery for giving
effect to this variety of it, gave rise to our modern bills of
exchange.
(ii) The machinery devised for giving effect to the contract of
cambium.
The machinery devised for giving effect to this contract of
cambium was the bill of exchange. The earliest bills of exchange
are in the form of a letter addressed by B to C, asking C to pay
to a third person D a sum of money, which A has entrusted to B
for this purpose. This letter is handed by B to A, who sends it
on to D ; and D presents it for payment to C. We have an
1 Op. cit. 94. - Ibid 200-201. 3 Ibid 129.
132 THE LAW MERCHANT
example of these bills as early as 1339;1 they are referred to in
the Florentine statute of the Calimala of 1332 ; and the English
cases in the Mayor's court would seem to justify us in assigning
to them an even earlier date.'2 It is clear, therefore, that they
were known in Italy at the beginning of the fourteenth century.3
Whence did they originate?
On this point it cannot be said that there is yet any definite
agreement. But to my mind the most probable hypothesis is that
they originated in the method employed by the Italian merchants
who had entered into a contract to transport money. Such a
contract would be contained in an instrumentum ex causa camdu.*
The method employed to carry it out was by writing a " letter of
payment" to a correspondent living in the place where the pay-
ment was to be effected. In favour of this hypothesis it may be
remembered that the earliest specimens of bills of exchange come
from Italy ; that their wording, when they appear in England in
the sixteenth and early seventeenth centuries, is almost identical
with the wording of the Italian bills of the fourteenth century ;
and that the analogy of many other institutions and doctrines of
our modern commercial and maritime law would lead us to suppose
that it was in Italy that this, the most remarkable institution
of our commercial law, originated.
That this is the most probable hypothesis as to the origin of
the bill of exchange will be clear, if we look at some of the other
hypotheses which have been suggested. But, before dealing with
these hypotheses, we should do well to remember that in this, as
in other branches of law, the argument from analogy is dangerous.
It is quite clear that so soon as commerce begins in any degree to
develop, methods will be found of avoiding the risks attendant
upon the physical transport of money. These methods of solving
the same problem will naturally possess a superficial similarity.
But the existence of this similarity is very far from proving any
derivative relationship.
In the first place, it is clear that there is nothing in Roman
law which in any way resembles the bill of exchange. No doubt
the adstipulatio, the delegation and the novatio could be made to
1 Below 135 n. 2. 2 Above 131.
3Huvelin, Travaux recents, etc., 7 and n. 4, " Les lettres . . . sont appelees
lettere di pagamento (lettres de paiement). Theoriquement, la lettera di pagamento
peut servir a effectuer le paiement de toute obligation, quel qu'en soit le fait gdn6rateur
(p. ex. vente des marchandises, commande, etc.). Et le statut de Calimala de 1332
constate l'emploi de lettere di pagamento di mercantia, acomendigia etc. Mais, tres
g6n£ralement, dans la pratique, elle sert a effectuer le paiement d'une obligation n£e
d'un contrat de transport d'argent. Elle prend alors le nom de lettera di pagamento
di cambio, et, plus brievement, de lettera di cambio . . . On reconnait dans la lettera
di pagamento la premiere forme de la traite moderne" ; cp. Brissaud, op. cit. ii 1440-
1441.
4 For the relation of this instrumentum to the letter see below 136-137.
ORIGINS AND DEVELOPMENT 133
fulfil some of the functions fulfilled by the bill of exchange ; but
we cannot find in the classical texts any institution which resembles
it in form, or in mode of operation.1 No doubt reasoning based
upon such topics as adstipulatio, delegatio, and novatio, was
sometimes used by the civilians of the fourteenth and fifteenth
centuries to explain the legal position of the parties to a bill of
exchange. They naturally tried to explain, in the technical
language of their own system, the legal relations created by these
commercial instruments, just as in the sixteenth century the
English common lawyers tried to explain them in their technical
language. But, as we shall see, it was impossible to make all
their incidents fit precisely the technical conceptions of either
system. Under both systems it was necessary to modify these
technical conceptions in order to give them their full effect.
Without such a modification (which, as we have seen, the school
of the post-glossators was in general far more ready to make
than the school of the Renaissance jurists) neither the bill of ex-
change, nor certain other institutions and doctrines of our modern
commercial law, could have been evolved. As we have seen,- a
too rigid adherence to these technical conceptions destroyed the
negotiable characteristics which the mediaeval instruments to
bearer or to order had possessed.
In the second place, claims have been made for an Arabic
origin.3 It is certain that in the eighth century A.D., long before
anything like the bill of exchange appeared in Italy, something
very much like the modern bill of exchange was known. It could
pass from hand to hand by something very much like an indorse-
ment ; and, to use modern terms, the payee had a right of recourse
against the drawer in the event of non-payment by the acceptor.
The influence of Arabic conceptions on Western commerce,
especially in the reign of PVederic II. (1212-1255), is undoubted.4
The evidence of language alone is conclusive.5 But, as Professor
Huvelin has pointed out, the existence of this analogous Arabic
institution is not so conclusive as it might at first sight appear.
The Arabic bill is far more fully negotiable than the Italian bill
of the thirteenth century. It can pass indefinitely from hand to
hand by what corresponds to an indorsement ; but it was not till
1 Huvelin, Travaux recents, etc., 7. 2 Above 121-125.
'For a very full discussion and explanation of this theory (put forward by
Grasshoff, Das Wechselrecht der Araber) see Huvelin, Travaux recents, etc., 23-2S.
4 See ibid 27, 28 ; cp. Nys, Les Origines du droit international, 160, 163, 281, 282.
B " Au moyen age, le commerce arabe, tres actif et tres perfection^, est un element
fecondant pour le commerce d'Occident, sur lequel il marque son empreinte. Signe
caracteristique de cette influence, la langue du commerce occidental est pleine
d'emprunts a l'arabe, qui remontent a cette 6poque (Taraffuk = trafic ; awar = avarie ;
farda = fardeau ; machsin = magasin ; tarha = tare (poids) ; ta'rif = tarif ; divan =
douane ; simsar = sensalis, courtier)," Huvelin, op. cit. 24.
134 THE LAW MERCHANT
some centuries later that our modern bills of exchange acquired
this quality.1
In the third place, Dr. Freundt 2 has put forward the theory
that, among the northern nations, the bill of exchange may have
been evolved from the letters patent and letters close by which
rulers did much of their governmental business — financial or other-
wise ; 3 and Professor Jules Valery advocates a theory closely
analogous to that of Dr. Freundt.4 He too finds the origins of the
bill of exchange in documents used in public law,5 such as letters
patent or letters close or writs of liberate," dating from the thirteenth
century or earlier. In these documents the king or other ruler
orders an official, having control of his money, to pay a fixed sum
to a payee or his agent producing the document." Professor Valery
points out that the rulers of states, especially at the time of the
Crusades,8 often had occasion to remit large sums of money.9 He
thinks it likely that the laconic and imperative style of these state
documents suggested the form taken by the bill of exchange ; 10 and
that documents thus drawn up were distinguished by their style
from ordinary letters requesting the recipient to make a payment.11
But we must distinguish between these public documents.
Some are merely instructions to a royal official to pay a royal
debtor ; and, as Professor Huvelin has pointed out,12 the economic
function of the bill of exchange is very different from the economic
function of many letters patent and letters close executed with this
object. The primary function of the first was to operate as a
transport of money in the interest of the creditor. The primary
I Huvelin, Travaux recents, etc., 27. 2 Das Wechselrecht der Postglossatoren.
3 Huvelin, op. cit. g-11.
4 Une Traite de Philippe le Bel, Contribution a l'histoire de la lettre de change.
5 Op. cit. 5-7, 25-28, 35-45.
6 Ibid 17, 18 : " Depuis assez longtemps deja des auteurs qui se sont occupe"s de
l'histoire de la lettre de change ont signals l'existence de titres, extremement nom-
breux, connus sous le nom de liberate, par lesquels les rois d'Angleterre avaient
coutume d'ordonnancer les payements a faire avec les deniers de la Couronne."
7 The following is the document which Professor Valery takes as his text :
' ' Phillippus Dei gratia Francorum rex ballivo Caleti vel eius locum tenenti salutem.
Mandamus vobis quatinus Radulpho de St. Oein decenario aut eius mandate presentes
litteras defferenti undecim libras et decern solidos turonensium in quibus eidem
tenemur de residuo tarn vadiorum suorum in facto guerre nostre Vasconie anno
presenti acquisitionem quam restauri cujusdem equi, absque dilacione quacunque ad
instantem mediam quadragesimam de nostro integre persolvatis quam pecunie summam
in nostris computis volumus allocari et penes vos presentes litteras remanere. Actum
Parisius die lune ante Candelosam anno Domini M°CC° nonagesimo sexto."
8 In connection with the Crusades it is interesting to note that the Templars in the
thirteenth century acted as royal financial agents, and that they developed what was
essentially a deposit banking business, and an exchange business, see Bruce William-
son, History of the Temple chap ii ; if they had survived, the Templars, with their
various branches throughout Europe, might have developed a banking and exchange
business on the same lines as the great Italian financial houses.
9 Op. cit. 14. 10 Ibid 26-28.
II Valery, op. cit. 40. 12 Travaux regents, etc., 11.
ORIGINS AND DEVELOPMENT 135
function of the second (when used to effect the payment of a debt)
was often to effect a payment in a place most convenient to the
debtor. It is no doubt true, as Professor Valery has pointed out,
that the commercial dealings of the state were often extensive ;
and the forms and usages of the state machinery may have had
some influence on the forms and usages of the commercial world.
On the other hand, it is at least as likely that in many cases the
influence was reverse, and that the state used the established
mechanism of commerce. Professor Valery admits that private
letters, written in the ordinary course of commercial correspondence,
were used to do the same work as these public or quasi-public
documents ; * and we shall see that the forms of the earliest bills of
exchange in England are far more analogous to the former than
to the latter class of documents.2 No doubt at all periods the
necessities of the state have had a great influence upon the develop-
ment of commercial law; but, generally, those needs have been
supplied by adaptations of existing commercial customs, rather
than by borrowing from the machinery of the state an idea or a
form wholly new to the merchants. The history of the develop-
ment, both of transferable shares in joint stock companies, and of
negotiable instruments in England in the latter part of the seven-
teenth century, supplies an illustration of this truth.3 We shall see
that at that period both these shares and bills of debt and bills of
exchange were part of the ordinary mechanism of commerce in
England. But there is no doubt that their development was
assisted by the growth of the system of borrowing on the security
of the revenue, which, after the Revolution, gave rise to the Bank
of England and the National Debt These creditors of the state
owned shares in the stock which they had advanced to the govern-
ment, and they were empowered by statute to transfer these shares.4
1 " La redaction de ces lettres de change ne pr^sente aucune particularite ; leur
style ne differe en rien de celui des missives ordinaires ; on y trouve les memes
formules de politesse; frequemment elles sont relatives a plusieurs objets diff^rents.
Elles constituent done tout simplement une partie de la correspondance commerciale.
. . . Voici done une double serie de titres appartenant a la meme £poque et ayant le
meme objet puisqu'ils se ramenent tous a des delegations consenties par un creancier
au profit d'un de ses propres creanciers. Seulement les uns sont fournis par le droit
public, tandis que les autres rentrent uniquement dans le domaine du droit commercial,"
op. cit. 25, 26-27.
2 The following is an Italian bill of exchange of the year 1339, cited Valery, op.
cit 23 n. 2 : " Al nome di Dio, amen. Bartalo e compagni, Barna da Lucha e com-
pagni salute. Di Vignone, Pagherete per questa lettera a di xx di, novembre 1339 a
Landuccio Busdraghi e compagni da Lucha fiorini trecento dodici e tre quarti d' oro
per cambio di fiorini trecento d'oro, che questo di della fatta n'avemo da Tancredi
Bonaquinta e compagni, a raxione di iii e quarto per c. alloro vantaggio ; e ponete
a nostro conto e ragione. Fatta di v d'ottobre 1339. — Francesco Falconetti ci a
mandati a paghare per voi a gli Accianioli scudi ccxxx d'oro. Bartalo Casini e
compagni in Pisa." See below 152-153 for some specimens of the earliest bills of
exchange which appear in the English records.
3 Below 159-170, 211-212, 214, * Below 188, 211.
136 THE LAW MERCHANT
Obviously these transferable shares helped to familiarize the
wealthier classes of the community and the lawyers with the idea
of transferable choses in action ; while the Bank of England
notes, established in 1696 by the same statute as that which
established the National Debt and the Bank of England itself,1
familiarized them with choses in action which were soon recognized
as negotiable.2 But it could hardly be contended that the idea of
a joint stock divided into shares, or the idea of a negotiable
instrument, originated in the fiscal expedients which were then
adopted by the state. And something like this, I think, happened
in the Middle Ages. State needs no doubt helped the develop-
ment of the bill of exchange. The forms of public documents may
possibly have influenced its form. But I should be inclined to
take the view that the idea of the bill of exchange originated in
the customs of the Italian commercial cities ; 3 and there is no
doubt that its legal development took place under the influence of
the Italian commercial lawyers.4
I think, therefore, that the origin of the bill of exchange must
most probably be sought in the Italian letter of payment. At
first it was only the satellite, so to speak, of a formal cautio or
instrumentum ex causa cambii — the contract by which A contracted
with B to transport money for B to another place, in order that
that money might be paid over to C. This formal contract ex causa
cambii is simply one of many uses to which these cautiones or instru-
ments were put.5 This instrument is described by Scaccia as a
public instrument, whereby the person receiving money for exchange
promises to pay the agreed amount of the money to be exchanged
to another, who is named in the instrument by the creditor who has
advanced the money, that other being usually the correspondent
of the creditor ; and he further promises to send the public instru-
ment to the creditor ; and, if he does not fulfil his contract, he
promises to repay to the creditor, with interest, the sum received in
the place where he received it.6 But, for the purposes of exchange,
1 Below 174 n. 2, 188. 2 Below 170-173.
3 Cp. Val£ry, op. cit. 22. 4 Below 137 seqq.
5 " Lorsqu'un contrat quelconque, vente, pret, cambium etc. a £te" conclu, il arrive
souvent que Ton rgdige un instrument pour constater les obligations qu'il fait
naitre . . . Un pareil instrument, re"dige pour un cambium, ne differe pas de celui
qui serait redige" pour une vente ou pour un pret. Seule la causa du titre differe,"
Huvelin, travaux regents, etc., 5.
6 Scaccia, De Commerciis et Cambiis § 1, Quaest. v II, " Primus modus concipiendi
scripturam in contractu cambii est per instrumentum publicum ; cum scilicet accipiens
cambio . . . promittit pretium cambii conventum solvere . . . alicui certae personae, in
ipso instrumento a creditore nominatae, qua? solet esse correspondens ipsius creditoris,
qui dat pecuniam cambio, et ulterius promittit solutionis, quam faciat, transmittere
publicum et authenticum testimonium seu fidem, infra certum alium terminum, eidem
qui dedit cambio, in tali loco, alias, si defecerit in non solvendo, et in solutionis testi-
monium non transmittendo, promittit solvere in loco contractus eidem creditori una
cum interesse."
ORIGINS AND DEVELOPMENT 137
this formal instrument gradually dropped out, and, in the course of
the fourteenth century, its place was taken by the letter or bill by
means of which the contract of transport was actually fulfilled.1
Thus, by that date, the bill of exchange had, through this develop-
ment of mercantile practice, emerged as an independent contract
possessing some very peculiar features of its own. It therefore
became necessary for the lawyers to elucidate and to give technical
expression to the legal relations subsisting between the various
parties to the bill.
That we may understand the manner in which they approached
this pioblem, it will be perhaps as well to recall the part played
by the different parties to the bill.
(i) There is A, who wishes to remit money to a foreign country
to be paid over to D (the payee), (ii) There is B (the drawer),
probably an exchanger, to whom A pays over this money for the
purposes of transmission. B, thereupon, to carry out this contract
to transmit the money, writes a letter to C (the drawee), who lives
in this foreign country, asking him to pay this sum of money to D.
(iii) There is C (the drawee), who, on being requested by B to pay
this money which he (B) has received from A, admits his liability
to do so by accepting the bill, (iv) There is D (the payee), to
whom C (the acceptor) has been requested to make this payment.
Thus it was necessary to consider (a) the relations of the person
who has paid over the money, which he wishes to remit, to the
drawer who has received it ; (J?) the relations of the drawer and
the drawee ; (c) the relations of the acceptor and the payee ; (d)
the relations of the payee and the drawer.
(a) The relations of the person who has paid over the money,
which he wishes to remit, to the drawer who has received it. — It is
clear that the drawer, who receives money under these circumstances,
is bound by his contract to pay the money to the person designated
by him who has handed it over to him (the drawer) for this pur-
pose. It is in effect a constitutum ; and, if the person who has
handed the money to the drawer owes the money to the payee
(which is the most ordinary case), it will be a constitutum debiti
alieni. According to ordinary principles of Roman law, the
drawer is bound to the man who has handed him over the money
to pay it to the payee.2
1 Debray, op. cit. 43,44; Brissaud, op. cit. ii 1441 ; the result was, as Scaccia,
op. cit. § 2 Gloss. 7, 68 (cited Debray, loc. cit.), says, " Etsi ex formula litterarum
cambii nulla appareat promissio seu obligatio de solvendo illi, qui est appositus
solutioni, tamen subintelligitur quod haec promissio fuerit facta numeranti pecuniae
. . . nam si ex istis litteris non resultaret contractus cum promissione et obligatione,
accipiens cambio non posset adstringi ad solutionem."
2 Huvelin, Travaux re'cents, etc., 11-13 : " C'est, en effet, le systeme que de>agent
les postglossateurs. Balde, chez qui nous en trouvons l'expression la plus complete,
insiste sur cette idee que le fait de remettre au preneur une lettre contenant la
mention de valeur fournie vaut pour ce preneur promesse de payer."
138 THE LAW MERCHANT
(b) The relations of drawer and drawee. — Originally the
drawee was, in most cases, either the principal or the partner of
the drawer. He must pay because he is bound by the contract
of agency or partnership to obey the instructions of the drawer.1
But later this kind of relationship did not necessarily exist between
them. How, then, could his liability be explained? Professor
Huvelin thinks that it came to be based on the idea that the
drawer has put the drawee in funds for this purpose, that in sub-
stance there is a contract of commenda between them, which bound
the drawee to pay.2 If he could show that he had not been thus
put in funds he was not liable, even though he had accepted the
bill.3
(c) The relations of the acceptor and the payee. — By accepting
the bill 4 the drawee recognizes that he is bound to obey the in-
structions of the drawer. In the course of the fifteenth century
it was recognized that, unless he entered a protest immediately,
he would be held to have accepted ; 5 but in later law acceptance
became so much the rule that it was left to the payee to make
this protest in case of non-acceptance or non-payment.6 In earlier
days this acceptance amounted to a recognition of the contract of
agency or partnership existing between drawer and acceptor ; and,
in later days, to an admission that he had property of the drawer,
with which he must deal according to the drawer's instructions.7
But this does not give the payee any right to enforce that contract.
He is a stranger to the contract between drawer and acceptor.
How then can he enforce his rights ? To explain this we must
introduce ideas other than those based upon the Roman law of
1 Huvelin, op. cit. 14, " Jusqu'au xive siecle il en est ainsi, et, lorsqu'un tire" ne
paie pas, la raison qu'il allegue est toujours et uniquement qu'il n'est pas socius du
tireur."
2 Ibid 14, 15 : " Le tireur qui fournit provision au tire le constitue originairement
son commendatarius.'1''
3 Scaccia, op. cit. § 2, Gloss. 8. 1 : " An exceptio pecuniae non numerataa possit
opponi contra litteras cambii. Respondeo affirmative quod potest opponi " ; as
Brissaud says, op. cit. ii 1441, " Par 1 'acceptation, sans que le tireur soit lib£re\ le
tire" s'engage envers le porteur ; il le fait plutot au nom du tireur qu'en sien, ce qui
lui permet de se pr£valoir (jusque vers le xvie siecle) des exceptions que le tireur
pouvait opposer au preneur (par exemple, celui-ci ne lui avait pas fourni de valeurs) " ;
but we shall see that when Scaccia wrote the broad principle which he lays down was
limited by some very wide exceptions, below 143.
4 This acceptance could be made verbally, or per retentionem litter arum, or in
writing, Huvelin, op. cit. 21 ; and that acceptance could take these three forms as
late as the middle of the seventeenth century is clear from Marquardus, op. cit. ii.
12, 76.
5 Brissaud, op. cit. ii 1441 ; Huvelin, op. cit. 15, 16.
6 Scaccia, op. cit. § 7, Gloss. 2. 12 : " Quaero quid sit redire litteras cum protesta-
tione. Respondeo : redire litteras cum protestatione dicimus quando mandatarius
debitoris litterarum cambii non acceptat, seu non solvit litteras, et mandatarius
creditoris idcirco protestatur contra debitorem de interesse, damnis et expensis " ;
as early as 1448 there is an instance at Avignon of the payee making the protest,
see the case of Spinula v. Camby, Jenks, Essays, A. A.L.H. iii 57.
7 Huvelin, op. cit. 16, 17.
ORIGINS AND DEVELOPMENT 139
obligations. The drawer has received money — property — from the
person who wishes to transmit the money. This money the drawer
wishes to hand to the payee, and puts the drawee in funds for this
purpose. If the drawee, who has admitted this liability by accept-
ing, does not fulfil it, he is in effect keeping property which
belongs to the payee. The payee can sue the acceptor to recover
what is in effect his property.1
(d) The relations of the payee and the drawer. — From an early
period it was recognized that, if the acceptor did not pay, there
was a recourse by the payee against the drawer.2 But at first
sight it would seem difficult to justify this on principle. How
could a third party, the payee, take advantage of a failure by the
acceptor to fulfil his duty to the drawer? The letter by itself did
not prove that the drawer had received money from a third person
to pay over to the given payee.3 Logically this was so ; but
commercial convenience made it necessary to depart from strictly
logical principles. Jurists of the thirteenth and fourteenth cen-
turies, with an eye to the needs of the merchants, laid it down that
the intention of the parties must be regarded ; and, it was said,
that the intention of the parties was shown by the fact that this
letter was sent, not to the person who was required to make the
payment requested by it, but to the person who had given value.4
This, it was said, showed that the sender of the letter (the drawer)
had in effect promised to pay the man who had given value, and
that therefore he could sue on this promise if he were not paid by
the acceptor.5 But, it will be said, this gives no rights to the payee.
It only gives rights to the man who has furnished value to the
drawer. The answer is, that in some cases the man who gave the
value was simply the agent of the payee ; and that in other cases
1 Huvelin, op. cit. 17 : " En r^alite, le tireur se comporte vis-a-vis de la provision
comme s'il avait sur les especes qui la representent un droit de proprtete" et non
pas comme s'il en 6tait creancier. Le tire qui a recu provision apparait a plus
d'un ggard comme un detenteur d'une valeur d'autrui . . . L'idee de vente, qui est
l'id£e fondamentale du change manuel, persiste dans le change tir£. Seulement il
y a la une conception tres diff^rente de la conception romaine, puisqu'il s'agit
d'une vente qui n'est pas purement productive d'obligations, mais qui transfere un
droit de propriete sur des especes non encore individualisees " ; the right of the
payee to sue was still a question discussed when Scaccia wrote — some regarded him
as merely adjectus solutionis see op. cit. § 2, Gloss. 7, 66-S0; Scaccia favours his right
to sue and one of his grounds is exactly that taken by Prof. Huvelin, " Quia adiectus
solutioni litterarum cambii eo animo, ut illi iure dominii sit donatum, seu cessum,
vel alio nomine, et titulo in eo translatum ius, et actio cambii, potest agere eo iure,
et quo iura cambii sunt in eo translata," loc. cit. 71.
2 Scaccia, op. cit. § 2, Gloss. 5. 322 : " Respondeo, Debitorem qui litteras fecit non
esse liberatum . . . nisi ipsae litterae sint realiter solutae secundum eandem
mercatorum Genuensium consuetudinem, et quod faciens litteras cambii sit obli-
gatus restituere pecuniam cum apparaverit eius litteras vel non esse acceptas, vel
non esse completas ... Si cambium solvendum non acceptatur vel non solvatur,
teneatur creditor " ; cp. Marquardu?, De iure Mercatorum et Commerciorum ii 12,
53. 55-
3 Huvelin, Travaux recents, etc., 12. 4Ibid. 5 Ibid.
140 THE LAW MERCHANT
(where, e.g., the man who gave value was the debtor of the
payee) the lawyers agreed that this right of recourse must belong
to the dominus negotii — to the man, that is, for whose sake this
contract of cambium had been entered into.1
In this way the bill of exchange developed at the close of the
mediaeval period into a contract of a very special kind. But as
yet it possessed none of the characteristics of a negotiable instru-
ment. Thus (i) even if the payee had an independent right to
enforce the contract, that right was no more and no less assignable
by the payee than any ordinary contract.2 (ii) We have seen that
the rights of the payee depended upon the fact that value had been
given by the person who wished to remit the money to the drawer,
and that this value had been passed over to the drawee for the
benefit of the payee. It followed that if the drawer had never
received this value he could not have passed it to the drawee ; and
that the drawee, even if he had accepted, could plead this fact
as a defence to any action by the payee.3 (iii) Similarly the ac-
ceptor could urge any other defence against the payee which could
have been urged by the drawer.4 How then did the bill of ex-
change acquire its negotiable characteristics ?
(iii) The development of the negotiable character of the bill of
exchange.
We have seen that there are three main characteristics
of negotiability — assignability ; presumption of value received, or,
in English law, consideration ; and the acquisition of a good title by
a bona-fide holder for value, irrespective of any defects in or want
of title on the part of his assignor. We must therefore examine
this question under these three heads.
(i) The manner in which the bill of exchange became assign-
able is connected (a) with the application to the bill of exchange
of the clause directing payment to be made to a payee or to any
one to whom he might order payment to be made on his account ;
and (b) with the practice and effect of indorsement.
1 Scaccia, op. cit. § 2, Gloss. 7. 70 : " In [litteris] cambii quae vocant ex reditu
nundinarum, ut plurimum ii, quibus nominatim in litteris cambii fieri debet
solutio, sunt veri domini pecuniarum et cambii, quare dans tunc cambio est simplex
minister, et adiectus solutioni est dominus " ; as Huvelin says, op. cit. 13, " II
convient, nous disent Balde et Scaccia, d'appr^cier, d'apres la qualite" des personnes
et les circonstances, qui est le dominus negotii. Jusqu'a preuve contraire, c'est le
pr^sentant qui est repute" l'etre."
2 And this was so whether it was made payable to the payee or order, or to the
payee or bearer, or to the bearer simply, above 120, 124-125 ; cp. the case of Spinula
v. Camby, cited Jenks, Essays, A. A.L.H. iii 57-58 ; the plaintiff was non-suited as the
action should have been brought in the name of the assignor.
3 Above 138 and n. 3.
4 " L'acceptant pouvait lui (the payee) opposer toutes les exceptions que le tireur
aurait pu faire valoir lui-meme contre l'ex^cution du constitut (p. ex. exception non
numerate? pecunia). II en fut effectivement ainsi jusque vers le xvie siecle," Huvelin,
op. cit. 20.
ORIGINS AND DEVELOPMENT 141
(a) We have seen that an instrument made payable to a
creditor, or to any one to whom he might order it to be paid, pre-
vented the debtor from raising any objection to being asked to
pay to the agent of the creditor who produced the document.
But we have seen that the payee designated by this order must
be in a position to prove, either that the creditor had appointed
him his agent, or that he had ceded to him his right to receive
the debt. This burden of proof was gradually lightened by the
practice of indorsement, and by the legal effects which were attri-
buted to it
(J?) The word " indorse " means literally to place on the back
(sur dos) of. Thus the purchaser of land indorsed on the back of
the charter of feoffment the fact that the lord had made livery of
seisin to him. A receipt was indorsed on the back of the obliga-
tion by a creditor to whom a debtor had paid the sum due under
the obligation.1 In Italy, in the latter half of the sixteenth cen-
tury, the practice sprang up of indorsing upon bills of exchange,
and later upon some of the older instruments made payable to a
payee or order, the order that payment should be made to X, the
agent of the payee. The production of a bill with this order in-
dorsed upon it created a presumption that the payee had handed
it to X, the indorsee, and had authorized him to sue upon it. It
thus dispensed with the necessity of proving a special authority
given by the payee to X to act as his agent2 But the order so
indorsed merely operated as an authority to X, in whose favour
the order was given, to act as the payee's agent. The form of the
clause to order prevented, as Brunner has pointed out,3 any further
transmission. The debtor has only promised to pay the payee
or any person in whose favour the payee has given his order.
There is therefore no promise to pay the person in whose favour,
not the payee, but the indorsee has given his order. Such a
person is the agent, not of the payee, but of the payee's agent —
delegatus non potest delegare.
So far, therefore, the bill of exchange has only attained a very
limited degree of assignability. It can be indorsed and delivered
once, but that is all. The questions then arise: When did it
become completely assignable by means of repeated indorsements
and deliveries? What was the legal reasoning by which this
change was effected ? What was the legal position of the various
indorsees inter se ?
There is evidence that the Italian merchants were attempting
1 Brunner, Les litres au porteur francais au moyen age, N.R.H. x, 174, 175.
2 Brissaud, op. cit. ii 1439, 1440 : " L'endorsement! dispensa de produire une
procuration sp^ciale, puisqu'il constituait un vrai mandat £crit au dos du titre" ;
Debray, These de la clause a ordre, 42, 46, 47.
3 N.R.H. x 176-177 ; Debray, op. cit. 47.
142 THE LAW MERCHANT
to make bills of exchange completely assignable by repeated in-
dorsements as early as 1560. The practice was alluded to in a
law passed at Venice in 1593 ; and it was forbidden at Naples in
1607 and 1617.1 Neither the treatises of Scaccia (16 18) nor of
Rafael de Turri (1641) allude to the practiced But the treatise of
Marquardus 3 shows that it was recognized in northern Europe by
the middle of the seventeenth century ; and the treatise of
Ansuldus (1689) shows that it was generally recognized in Italy in
the latter part of the same century.4 In France it was recog-
nized before the middle of the same century ; and it was regulated
by the Ordonnance of 1673. 5
The legal reasoning by which this change was effected appears
to have turned upon a different construction which was placed
upon the effect of the order. So long as the person in whose
favour the order was given, was obliged to prove that he was the
agent of the payee by special act of procuration constituting him
agent, either in rem suam or in rem alienam, the representative
character of the indorsee was emphasized. But when this special
act of procuration was dispensed with, and the indorsement of the
order was accepted as sufficient, the representative character of
the indorsee became less prominent.6 It came to be allowed that
the indorsee, though a procurator, was a procurator, not in rem
alienam but in rem suam. In effect, therefore, he became the
actual transferee entitled to collect the debt on his own account.
It followed that he could in a similar way appoint another
procurator in rem suam, and so on indefinitely.7 Thus the as-
1 Debray, op. cit. 47. 2 Ibid.
3De Jure Mercatorum et Commerciorum, ii 15, 7-10.
4 De Commercio et Mercatura, Disc. II. 31 ; the case cited shows several indorse-
ments.
8 Debray, op. cit. 50, says of this rule, " Si elle ne naquit pas en France, elle y
prit vite racine, et plus facilement que dans d'autres pays. Tandis qu'a Venice, en
Allemagne, a Piedmont, a Naples, aux foires de Noue, la multiplicity des endossements
demeura longtemps interdite, l'ordonnance de 1673 ne songea meme pas a en contester
la validity."
6 Ibid 47, 48. When Straccha wrote (De Adiecto Pt. 4, 8, 9, Tractatus Juris,
vi Pt. I, 400b) a person who produced an instrument, which permitted payment
ei qui exhibuerit, was presumed to be agent, and admitted to sue absque cautione de
rato ; this perhaps marks the beginning of the process which, by insisting less strongly
on the representative character of the holder, began to give him the more independent
position assigned to him in later law ; thus Marquardus, op. cit. ii 15, 18, can say,
" Nos autem de delegatione per assignationem, transportationem, seu inductionem, ut
mercatores loquuntur, facta ; quo in passu delegans seu transcribens cambium delegato
acceptante ulla retractatione mandati aut alio quovis modo praediudicari non potest."
7 " Or pourquoi le procurator in rem suam ne pourrait-il transferer lui- meme le
droit dont il a 6t6 investi et par le meme mode ? II peut, cela n'est pas douteux,
constituer un tiers cessionnaire au moyen d'une procuratio ; mais puisque l'ordre ici
remplace la procuratio, l'insertion dans l'endossement de la clause a ordre ya produire
le meme effet que dans la lettre elle-meme; le tiers va se trouver constitu^, par un
second endossement, procurator in rem suam, sans qu'il soit besoin de procuration
sp£ciale pour ce second endossement pas plus que pour le premier," Debray,
op. cit. 48.
ORIGINS AND DEVELOPMENT 143
signability, formerly allowed to the older instruments made
payable to a creditor or his nominee, was restored. As M. Debray
has pointed out, the attainment of this result, at the close of the
seventeenth century, was due, partly to a larger appreciation of
the needs of the world of commerce, partly to the decline of the
influence of the school of the Renaissance jurists.1
The legal position of the various indorsees inter se was natur-
ally dictated by the legal reasoning which made several indorse-
ments possible. The principal must indemnify his agent for all
expenses to which the agent has been put If, therefore, X, a
payee, in consideration of a sum of money, makes Y his procurator
in rem suam by indorsing and delivering to him a bill, and Y
cannot get paid by the acceptor, X must indemnify him ; and if
Y indorses to Z, the same principle will apply as between Y
and Z.2
(ii) The presumption that the acceptor of a bill had received
value for it was gradually admitted. We have seen that Scaccia
laid it down that the acceptor could plead the exceptio pecunice non
numerates ; 3 but he accompanies this admission with many excep-
tions and limitations. Thus he admits that if the letter contained
the clause " for value received," the defence could not be pleaded.4
As this was, and is, the general form of bills of exchange, it was
not difficult to arrive at the rule laid down by the French lawyers
that " l'acceptation suppose la provision," 5 and by our modern
Bills of Exchange Act that " every party whose signature appears
on a bill is prima facie deemed to have become a party thereto for
value." «
(iii) It was not difficult to enlarge this presumption. If con-
sideration is presumed, why not presume that other necessary
1 Op. cit. 50, " II n'existait plus de jurisconsultes comme Dumoulin ou Charondas
dont l'esprit d'analyse put decomposer les elements de la clause a ordre et en faire une
construction juridique en disaccord avec les besoins de la pratique " ; cp. Huvelin,
Travaux recents, etc., 16, 17, " Or Ton n'a pas assez remarque" combien Pemploi de la
terminologie et des conceptions romaines s'applique mal en nos matieres, combien il
fausse les resultats auxquels on aboutit, et combien l'intervention des postglossateurs
et des jurisconsultes posterieurs eleves a l'ecole de Justinien a rendu plus difficile la
doctrine de notre institution " ; for this school see vol. iv. 225-228.
2 Ansaldus, op. cit. Disc. II. 17 " lam enim diximus et probavimus quod girata
seu cessio non sit contractus mercati sed mandati " ; ibid 30 [" Girata litterae cambii]
aequipollere pecuniae numeratae, sed dum modo subsequatur solutio, alias datur regressus
adversus trahentem seu scribentem."
3 Above 138 n. 3.
4 Op. cit. § 2 Gloss. 8, 5, 6 " Limita primo eandem regulam, ut non procedat,
quando campsarius, id est debitor, confessus esset in litteris cambii numerationem
pecuniae. . . . Declara, explicando uberius hanc limitationem, ut in civitate Genue ex
communi mercatorum observantia campsarius dicatur confessus numerationem pecuniae
in litteris cambii, quando in litteris sunt opposita ilia verba, per la valuta havauta di
contanti."
5 Brissaud, op. cit. ii 1441 ; Huvelin, Travaux recents, etc., 20.
*45 and 46 Victoria c 61, s. 30, 1.
144 THE LAW MERCHANT
elements of the validity of the bill are present? It would seem
that this presumption was made in France in the seventeenth
century ; and it followed that defences good against a payee were
not necessarily good against an indorsee.1 But could this pre-
sumption omnia rite acta be rebutted? It seems to have been
settled in the latter part of the seventeenth century that it could
not, if the person entitled under the bill took in good faith ; and
good faith was always presumed.2 This conclusion seems to have
been arrived at by basing the acceptor's liability to the payee on
quite a different ground from that taken by the older law. It was
thought that, by accepting, he personally promised to pay to the
payee or anyone who appeared as indorsee. His contract was
therefore with the indorsee who appeared with the bill.3 This
liability could not be affected by any equities existing as against
any one else, because to the contract between the acceptor and the
ultimate indorsee any one else was a stranger.4
Thus the bill of exchange gained, in the middle of the seven-
teenth century, many of the negotiable characteristics which the
older instruments payable to order or bearer had lost in the
sixteenth century. It was not difficult, in those countries in which
the bearer of these instruments still retained an independent right
of action, and later in all countries in which his independent posi-
tion had come to be recognized, to make these bills also payable
to bearer. Under the influence of a school of lawyers less
enslaved to the classical texts than the Renaissance jurists, and
more alive to the interests of commerce,5 the bill of exchange was
permitted to supply the want caused by the disappearance of the
negotiable character of the older instruments. And thus, though
much younger than these instruments, though originally mere
letters without any legal significance, they have become the type and
1 Debray, op. cit. 57, and authorities there cited ; cp. Brissaud, op. cit. ii
1441-1442. ■
2 See Brunner, op. cit. 143-144.
3Ansaldus. op. cit. Disc. I. 10, "Tunc per eandem acceptationem censetur
acceptans sese fecisse debitorem ex causa propria, vel tamquam fideiussorem scribentis,
ut dicunt in ratione decidendi Authoritates mox recensitae " ; ibid Disc. IV. 3 " Qui
huiusmodi litteras acceptando nulla sese valent exceptione tueri, sed compelluntur
solvere, ac si per solemnem stipulationem sese soluturos prsefixo tempore promisissent
et obligassent."
4 Ibid Disc. II. 37-39 " Recepta propositio, quod exceptio, quae obstat cedenti
vel giranti non obstat cessionario vel giratario, de qua in terminis mandatarii
acceptantis mandatum de solvendo alicui tertio, quod non possit solutionem denegare
giratario, non solum si non sit debitor, sed etiam si sit creditor girantis . . . De eo,
qui cum fecisset cedulam, seu, ut dicitur, Pagaro, quod non possit iste recusare solu-
tionem giratario, quantumvis fuisset creditor illius, qui receperat, et respective
giraverat idem Pagaro, dum modo giratarius foveat causam onerosam, et non repre-
sentet tanquam simpliciter adiectus personam girantis " ; cp. ibid Disc. LXXII 5
" Exceptio, quae competeret contra excommunicatum cedentem, obiici non valeat
cessionario, veluti vitium mere personale."
5 Above 143 and n. 1.
ORIGINS AND DEVELOPMENT 145
model of the negotiable instruments known to our modern law ;
and, as Brissaud has pointed out, they have in consequence come
to perform a new function in the modern world of commerce.
They have become modes of payment and instalments of credit —
a species of currency, in fact, among merchants. The value which
they represent is incorporated in them ; and the ingenious device of
modern commercial practice has thus curiously revived the formal
carta of the early mediaeval period.1
How the negotiable characteristics of these instruments can be
reconciled with legal principle is a matter upon which there has
been much speculation.2 Such speculation is outside the sphere
of legal history ; but I think that the history of their growth
would seem to suggest that these characteristics cannot be ex-
plained by reference to the principles solely applicable either to
the law of property or to the law of contract. It suggests rather
that they are a judicious mixture of those parts of the principles
underlying both these bodies of law, which are the most favourable
to safe, easy, and rapid circulation. If we look at the law of
property we see that there is no difficulty in assigning property,
provided that the assignor has a good title. But " nemo dat quod
non habet. " If we look at the law of contract we see that there
is no difficulty about the binding force of a contract to convey
another person's property. The promissor is obviously bound
personally if he chooses to make such a contract. But difficulties
begin when we attempt to assign the benefit of a contract The
negotiable instrument avoids both the proprietary and the con-
tractual difficulty by a judicious mixture of principles taken from
both these branches of law. It borrows from the law of property
the easy method of assignment by means of an indorsement and
delivery, or a delivery merely of the instrument It borrows from
the law of contract the principle that the person primarily liable is
personally bound by his contract to pay the indorsee or bearer
producing the bill ; and that, therefore, no defence, which he
might have had to claims by other persons, and no question of
title to the bill, can be any answer to an indorsee or bearer
1 Op. cit. ii 1442 : " Elle ne servit d'abord qu'a eviter un transport d'argent : on
en fait un moyen de payement et un instrument de credit, une sorte de monnaie entre
commercants ; la valeur qu'elle represente s'incorpore a elle et la pratique savante des
temps modernes revient ainsi par un detour inattendu a la carta formaliste d'epoque
barbare."
2 For some account of this discussion see Huvelin, Travaux regents, etc., 17-21 ;
he favours the idea that the bill of exchange is primarily a rente d'esjeces, but, as he
admits, writers of the seventeenth century regarded it also as a cession de creance ; on
the other hand, the German law regards the thing ceded as a dette abstracte which the
acceptor is personally bound to pay to the holder. As we can see from the foregoing
discussion, both ideas have played their part in fashioning the modern law ; for what
we may call the proprietary idea see above 142-143 ; for what we may call the con-
tractual idea see above 143-144.
VOL. VIII. — 10
146 THE LAW MERCHANT
producing the bill, who has acquired it in good faith and for
value. In addition, it borrows from mercantile custom the prin-
ciple that, normally, good faith and value will be presumed.
By the end of the seventeenth century continental lawyers had
substantially come to these conclusions. We shall now see that
their development in England closely followed their development
on the Continent.
Introduction into England and development by the Common Law
The negotiable instrument came to England from the Continent ;
and its adventures in England present some analogies to its
adventures in the countries from whence it came. Therefore,
although its history in England is in some respects unique, neither
that history nor the law resulting therefrom, can be understood
without the help of the light thrown upon them by continental
analogies.
There are some indications that instruments payable to a creditor
or his nominee, and perhaps instruments payable to a creditor or
bearer, were known in mediaeval England ; ! and possibly these
instruments possessed certain negotiable characteristics. But cases
turning upon them did not come before the common-law courts ;
and there is reason to think that, if they had done so, these negoti-
able characteristics would have been as strange to the common law
as they were to the civil law.2 No doubt the bill of exchange
was well enough known to the mercantile world ; and the cases
from the Mayor's Court in London, which have been already cited,
show that it was well enough known to the English merchants.3
But it is not till the sixteenth century that there are any indications
that its existence had become known to English lawyers. In the
course of the following century it was received into English law,
and recognized as possessing the same negotiable characteristics
that it had acquired abroad. It was therefore in connexion with
the bill of exchange that the common law first became acquainted
with negotiability.
During the seventeenth century some lawyers were inclined to
follow mercantile usage, and to attribute this quality of negotia-
bility to certain other bills or notes, containing promises to pay
money to a creditor or order or to a creditor or bearer. But in the
last years of that century the courts, under the influence of Holt,
C.J., decided that negotiability was the peculiar property of the
bill of exchange. This led to such serious inconvenience that, at
1 Vol. i 543; vol. v 114; above 116, 130-131.
2 Below 147. 3 Above. 116, 130-131.
THE ENGLISH DEVELOPMENT 147
the end of this period, the Legislature declared that these promissory
notes were and always had been negotiable.
This summary of the early history of negotiable instruments in
England indicates the main lines of development. I shall relate
that history under the following heads : (i) the older instruments
payable to a creditor or his nominee, or to a creditor or bearer ;
(2) the bill of exchange ; and (3) the promissory note.
(1) The older instruments payable to a creditor or his nominee
or to a creditor or bearer.
We have seen that there are a few slight indications that the
courts of the mediaeval English fairs knew of these older instru-
ments.1 But, in the printed collections of these cases, there is only
one case in which such an instrument is made payable to bearer ;
and in that case it was the party to whom it was made payable,
and not the bearer, who sued upon it2 In other cases these
instruments were made payable to the certo at tomato or nuncio
producing them.3 Similarly, we get in Madox's collection a
certain number of instruments in which there is a promise to pay
to a creditor or to his "certain attorney";4 and in two of these
precedents the money is to be paid to the certain attorney
"producing the instrument"5 The inference would seem to be
that the assignable instruments, which we find on the Continent,
were unknown to or ignored by the mediaeval common law. No
doubt, as the power to appoint an attorney came to be generally
permitted, the creditor could enforce his right through his attorney
duly appointed — probably whether this fact were mentioned in
the instrument or not.6 But, from the fact that the common law
never recognized the assignability of any chose in action, we may
infer that it was only the creditor himself or his duly appointed
attorney who could enforce them." Therefore if such instruments
had been known to the mediaeval common lawyers, they would
probably have been treated by them much in the same way as they
were treated by the civilians abroad.8
It is probable, however, that these instruments were well enough
known to those few English merchants who were engaged in
foreign trade. At any rate, the records of the court of Admiralty
show us that, from the beginning of the sixteenth century, they
1 Vol. i 543 ; vol. v 114 ; above 116.
2 Select Pleas in Manorial Courts (S.S.) 152. 3 Above 116.
*Formulare Anglicanum, nos. 641, 642, 645, 647, 648, 649, 651.
5 Ibid nos. 643 and 653 ; in the latter tie creditor is Robert Rede, Justice of the
bench, and the payment is to be made " Roberto aut suo certo attornato hoc scriptum
ostendenti, haeredibus executoribus suis " ; it is dated March 8, 1501 ; and the money
is stated to have been lent '» pro mercandisis in Stapula Westmonasterii emptis."
6 Vol. ii 316-317. " Vol. vii. 533, 534-537. s Above 121-125.
148 THE LAW MERCHANT
were an ordinary part of the machinery of commerce. Thus in
1533 we find the following document :x "Be it known to all men
that I Thomas Thorne haberdasher of London have taken up by
exchange of Thomas Fuller merchaunt of the staple of Calais the
sum of lxH sterling, the which sum of three skore pounds sterling
to be payd to the said Thomas Fuller or to the brynger of thys byll in
manner and forme foloynge ... to the whiche payments well and
trewly to be payd to the said Thomas Fuller or to the brynger hereof
... I the said Thomas Thorne bynd me myne ayres executors and
assignes and all my goods." The bill is signed and sealed by the
maker. In 1536 we have a similar bill drawn in a set of three,
and promising to pay to the creditor or his assigns. It runs as
follows : 2 "Be yt knowne unto all men by this my second byll
not beyng payd my fyrst nor thyrd I William Browne merchaunt
of Tynbe . . . knowlage that I owe unto you Thomas Gale haber-
dasher of London xH xs sterling the which tene pounds and tene
shillings starling I promys and me bynd to pay unto the sayd
Thomas Galle or to his assignes." In 1 5 3 8 3 we have a combination
of these clauses. In a document under seal, John Stubbarde,
citizen and fishmonger of London, and Peter Kyrseeman, merchant
of Bruges, bind themselves to pay £1 3 to John Harryson de Roos,
mariner of Sluys, for a certain ship which they had bought of him ;
and this sum is to be paid to "the said John or to his certain
attorney his heirs executors or assigns or to the presenter or bearer
of this present writing." There are several other similar documents
appearing in the same records,4 all of which, it is fairly clear,
correspond to the instruments payable to a creditor or his nominee
or to a creditor or bearer which were in use on the Continent.
The question therefore arises — What effect was given to them by
mercantile practice and by English law ?
On both these points Malynes' treatise gives us some informa-
tion ; and that information probably presents both the practice and
the law of the greater part of the sixteenth and of the earlier part
of the seventeenth centuries.
Malynes tells us5 that the "most usual buying and selling of
commodities beyond the seas, in the course of traffick, is by Bills
of Debt or obligations called Bills Obligatory, which one merchant
giveth unto another for commodities bought or sold, which is
altogether used by the Merchants Adventurers at Amsterdam,
Middleborough, Hamborough, and other places." He gives us the
following specimens of the usual form of these bills:6 "I, A.B.
1 Select Pleas of the Admiralty (S.S.) i 41.
2 Ibid 55. 3 Ibid 62, 196.
4 Ibid 72 (1538-1539) ; ii 68 (1538) — called a bill of exchange; 70(1549); ibid
7c, 71 (1554)— called a bill of exchange ; 71 (1553) ; 72 (1557) ; 73 (1557)-
5 Lex Mercatoria, 71. 6 Op. cit. 74.
THE ENGLISH DEVELOPMENT 149
merchant of Amsterdam do acknowledge by these presents to be
truely indebted to the honest CD. English merchant dwelling at
Middleborough, in the sum of five hundred pounds currant money
for merchanize, which is for commodities received of him to my
contentment, which summ of five hundred pounds as aforesaid I do
promise to pay unto the said CD. {or the bringer hereof) within six
months next after the date of these presents : In witness whereof
I have subscribed the same at Amsterdam the 10 of July, 1622,
Stilo novo, A.B. '
It is reasonably clear that this is one of the old instruments to
bearer, adapted to modern commercial conditions, which had long
been known on the Continent. We have seen that, before the date
when Malynes wrote, they had lost those negotiable qualities which
they had possessed in earlier law.1 But on the Continent the
merchants had invented a cumbersome device by means of which
they could be made assignable The creditor and payee of such a
bill stipulated with his debtor, the maker, that he (the debtor)
would make the bill payable to any person nominated by himself.
The maker thereupon drew the bill, leaving the name of the payee
blank. The original creditor then handed this bill to a creditor of
his own to present to the maker thereof. But this assignee might,
by a similar method, make use of it to pay a creditor of his ; and
so the bill might pass through half a dozen different hands before
it was finally presented to the maker by the man who wished to
have his name inserted as payee.2 Or, Malynes tells us, the bill
might be made payable to the original payee or bearer ; " and so all
the parties are bearers thereof, unto whom the same is set over by
a tradition of it only."3 It should be observed, however, that all
depended on the solvency of the maker. The names of the several
transferees did not appear on the bill, and therefore they had no
recourse against each other.4 It was not till the clause to order
and the practice of indorsement had been applied to these bills that
this security was gained.5 But it would seem that, when Malynes
wrote, this device had not yet been applied to these bills. The
only bills with which he was acquainted were bills to bearer. In
spite, however, of this defect, it is clear that these bills of debt
were, among the merchants, regarded as a species of mercantile
currency. The parties by themselves or their brokers had (like
1 Above 124-125. 2 Lex Mercatoria, 71.
3 Ibid. " This," he says, " is called a rescounter in payment, used among mer-
chants beyond the seas, and seemeth strange unto all men that are ignorant of this
custom."
* Ibid 73— a case cited to show that the practice of getting the name of the
creditor's nominee inserted in the bill " is not without some danger " to the nominee,
in case the debtor turn out to be insolvent.
5 Below 155-156.
150 THE LAW MERCHANT
our modern bill brokers)1 means of finding out the commercial
reputation of the maker of any bill, which an intending purchaser
proposed to give in payment ; and the holder of such bills could
sell these bills and get ready money for them. These bills are, as
he says, "as money paid by assignation."2
The advantages of this mercantile custom are eloquently set
forth by Malynes3 — "very great matters are compassed in the
trade of Merchandize, the commodities are sooner vented in all
places, the custom and impositions of Princes do increase, the
poor and mechanical people are set on work, men are better
assured in their payments, the counterfeiting of bills and differences
are prevented ; the more commodities there are sold, the less ready
money is transported, and life is infused into traffkk and trade for
the general good." But he is forced to admit that this mercantile
custom was wholly unknown to and legally impossible in the
common law. Being choses in action they could not be assigned.4
If they were drawn up, as they usually were, in the form of a
contract under seal, they could not be made payable to bearer, or
altered into another man's name ; and letters of attorney given by
the payee to an assignee to sue in his (the payee's) name were
always revocable.5 Many lawyers and merchants, he tells us, had
advocated the establishment of this custom in England by Act of
Parliament ; 6 and he makes the further suggestion that transfers
should be indorsed on the bill, and that there should be (as at
Lisbon and Rouen) a register kept of all these bills.7 But these
1 Bagehot, Lombard Street, 285, 286.
2" This custom is much practised by the Merchants Adventurers beyond the seas
at Middleborough, Atrsterdam, Antwerp, Hamborough and other places where they
do trade, in manner following as we have noted : — A merchant having many of these
bills, which he hath received for his clothes . . . will resort unto . . . another
merchant, commonly accompanied with a mediator or broker, to buy a good round
quantity of silk wares . . . and having agreed upon the price of the said commodity . . .
he makcth the seller acquainted with what payment ... he will give him in bills . . .
Hereupon all such bills as are of known persons, are soon accepted of, and of the
unknown persons, either himself that is the seller or the broker, will enquire of them
sufficiently, and then likewise accept their bills in payment"; enquiry was then
usually made of the debtor whether he will meet the bills (which were usually made
payable to bearer) and the debtor assents. The receiver may either wait till the bills
fall due and get the money, or " buy other commodities therewith " ; " nay more, if
he will have ready money for these bills, he may sell them to other merchants that are
moneyed men . . . which is commodious for young merchants having small stocks,
as also for all men upon all occasions ; for it is properly as money paid by assignation,"
Lex Mercatoria, 72-73.
3 Ibid 73. 4 Ibid 71. 5 Ibid 73. B Ibid 71.
7 " If there were a register kept of the passing and transferring of these bills from
man to man, and by an endorsement thereof also upon the bill, it might be done with
ease, and the bearer of it should be acknowledged thereby to be a lawful Attorney in
law ; and by these means the undecent plea of Non est factum would be cut off. And
to prevent fraudulent dealing, if any bills should be lost, notice might be given
instantly to the Register (which at Lixborn and Roan is called a Prothonotary) . . .
and the bills for the most part do remain in the office at the disposition of the last
assign or assigns," ibid 73, 74 ; the keeping of a register of bills of exchange in order
to prevent the secret export of money was advocated in 1621 and 1638, S.P. Dom.
1619-1623, 255, exxi 20 ; 1638-1639, 257, ccccviii 45.
THE ENGLISH DEVELOPMENT 151
suggestions bore no fruit. "Hitherto things are not rightly
understood, as it is to be wished it were, whereby other nations
have still an advantage." !
In England, as abroad, it was not till the modern idea of
negotiability had come into the common law in the train of the
bill of exchange, that these bills obligatory developed into negoti-
able instruments, and became the promissory notes of our modern
law. To the advent of the bill of exchange in this country we
must now turn.
(2) The bill of exchange.
The bill of exchange, and the law and practice relating thereto,
were known to English merchants long before they were fully
received into the common law.2 When, in the early part of the
seventeenth century, the common law courts began to recognize
the validity of these instruments, they were already a developed
institution.3 It was inevitable therefore that the common law
should receive, along with them, the law which had grown up
around them on the Continent This reception took place under
cover of the recognition of mercantile custom ; but it was no
wholesale or slavish reception. No doubt, both our system of
case law, and the insularity of the common lawyers, helped to pre-
vent a reception of this kind. Foreign writers are very rarely
cited in the reports ; 4 and foreign doctrine was both modified,
when modifications were necessary to suit the different technical
conceptions of English law, and added to, when new cases produced
new problems for solution. This process was in full operation
during the latter part of the seventeenth century. It was naturally
far less rapid than it would have been if foreign doctrine had been
received in a more wholesale manner ; and therefore at the end
of this century English law was less detailed, and perhaps less
advanced, than the law of many continental countries. But the
process had fairly started, and good progress had been made.
The history of the bill of exchange therefore falls under two
well defined heads : (i) the bill of exchange in mercantile practice ;
1 Lex Mercatoria, 74 ; it may however be noted that a bill to make bills of debt
transferable by indorsement was before the House of Lords in 1669, but it dropped
with the close of the session, ibid MSS. Com. 8th Rep. App. 137 ; and that in
February 1672-1673 an Act for assigning bills and bonds was ordered to be prepared
by the House of Lords, which got as far as its first reading in January 1673-1674,
Journals of the House of Lords xii 53S, 623 ; Hist MSS. Comm. oth Rep. App. Pt.
ii 40 no. 151 ; a similar proposal had been made in 1653, vol. vi 418.
2 Above 130-131. 3 Above 136-145.
* In Carter v. Downish (1687) 1 Shower at p. 128, there is a reference in argu-
ment to "all the book cases on foreign bills of exchange"; and another general
reference to the civil law in the argument in Claxton v. Swift (1685) 2 Shower at
p. 501 ; even general references such as these are very rare.
152 THE LAW MERCHANT
and (ii) the recognition and development of the bill of exchange in
English law.
(i) The bill of exchange in mercantile practice.
Though, as we have seen,1 documents which were in substance
bills of exchange had made their appearance in the Mayor's Court
of London at the very beginning of the thirteenth century, they
do not make their appearance in the central courts till much later.
There is a possible reference to a document, which is something
like a bill of exchange, in a case heard by the court of Chancery
between i486 and 1500.2 But the earliest specimens of bills of
exchange are to be found in the records of the court of Admiralty.
It is clear from their form that they are exactly similar to the
bills of exchange known on the Continent. The earliest is a
Latin document of the year 1540 translated from the Italian,8 and
there are others of 1553, 4 1 5 54,5 I562,6and 1 563 7 in English.
If we compare the specimens of 1540, 1562, and 1563 with the
specimen given by Malynes, we shall see that in England they
were drawn in the same stereotyped form as in other parts of
Europe.8
The following is the form which Malynes9 gives of a bill of
exchange from London to Amsterdam : —
1 Above 130-131.
2 Proceedings in Chancery (R.C.) i cxx-cxxii ; the plaintiff, Sebastian Giglis,
merchant of Venice, alleges that at the request of the defendant, Robert Welby, priest,
he wrote to one Reale, a merchant, a letter asking Reale to pay to Welby £20. Reale
did so, taking a document with sureties signed by Welby for repayment. He was
unable to get payment at common law because the document was not sealed, and
Welby waged his law. Therefore Reale sued Giglis who was obliged to pay. On
these grounds the Chancellor ordered Welby to pay the money to Giglis ; this letter,
if not actually a bill of exchange, is certainly reminiscent of the mercantile practice
which gave rise to them.
3 It runs as follows: " Jhesus 1540, 26 die Julii in London," cxviii li. xviii s.
monete Flandrie currentis.
" Ad tempus solitum Anglice at usans solvetis pro hac prima presenti billa cambii
D. Barnardo Calvalcanti libras centum et octodecim et solidos octodecim grossorum
in moneta currenti pro valore recepto a Guidone Cavalcanti et ponetis in computo
V . . . orum hie Subscripcio literarum cambii Meliadux Spinola.
" Superscripcio literarum huiusmodi D. Adriano de Brancho iuniori in Antuerpia.
" (In the margin) Tenor literarum cambii ex Italico idiomate in Latinum trans-
latarum," Select Pleas of the Admiralty (S.S.) ii 6g.
4 Ibid 70. 5 Ibid 71. 6 Ibid 73. 7 Ibid.
8 The following is the bill of 1562 : " Laus deo. Andwarpe le 4 of September
1562 £50 o. o.
"At Usans and halfe paye by this my fyrste byll of exchainge my second not
beinge paid to Myhell Cruche or the bringer hereof the some ffyeftey poundes sterlinge
corant mony for marchandyse and ys for the valewe receyved here of John Turner
at the daye make good payment and put yt to your accompte by me Richard
Stainffeld.
" Eccepted by me William Lewtie.
" (Endorsed) To Mr. Lewteye servant to Richard Stainffyld dd in London pa,"
D Lex Mercatoria, 269, 270,
THE ENGLISH DEVELOPMENT 153
"Laus Deo. Adi 24 August 1622 in London — 500 lb. at
34s. 6d.
"At usance1 pay by this my first bill of exchange to A.B. the
sum of five hundred pounds sterling at thirty-four shillings and six
pence Flemish for every pound sterling currant money in merchan-
dize for the value hereof received by me of CD. and put it to
account as per advice, A. Dio. etc. G.M."
Then, "on the backside is indorsed, To my loving friend,
Master W. C. merchant in Amsterdam, Pa." 2
Malynes says3 that the bill must always be in this form —
"You may not say in the bill it may please you to pay or I pray
you to pay, although it were to your master; for the bill of his
high nature doth carry with it a command . . . neither is there
any witness unto it nor any seal, but a small piece of paper of
some two fingers broad : and the letter of advice doth declare for
whose account, or to what intent or purpose the said money is
taken up."4
It is clear from this specimen that we have the same four
parties to the bill as on the Continent.5 (i) There is C. D. who
has paid over money to G. M. ; (ii) there is the drawer G. M. ;
(iii) there is the drawee W. C. ; and (iv) there is the payee A B.
It is also clear that the bill has not yet become a negotiable
instrument. In the specimen Malynes gives we do not find the
expressions "order" or "bearer." As we have seen, it was not
till after Malynes wrote that the development of the negotiable
character of the bill of exchange took place in continental states.6
But the need for an instrument which admitted of some form of
transfer was obvious; and the merchants met it by a device not
unlike that which they employed in the case of bills obligatory.
" Peter delivereth five hundred pounds to John, who is to give the
bill of exchange for it ; Peter taketh up five hundred pounds of
William, and may give him the said bill of John for it ; William
taketh up five hundred pounds of Nicolas, and may deliver John
and Peter's bill for it ; Nicolas taketh up five hundred pounds of
Francis, and doth give him the bill of John, making mention of
Peter and William. Here are four takers-up of money, and but
1 The term usance means the time at which the bill was payable, if not payable
at sight This time varied according to the custom of different places. Double or
treble usance means double or treble the customary time, and half usance half the
customary time, Malynes, op. cit. 268, 269 ; Marius, Practical Advice, 18.
2 I.e. The Italian Pagate. 3 Op. cit. 270 ; cp. Marius, op. cit. 1.
4 "If he which doth underwrite the bill [i.e. the acceptor] is to make himself
Debitour, then he [the drawer] writeth in the bill, And put it to my Account ; but if
he which ought to pay it, and to whom it is directed, is Debitour unto the drawer,
then he writes, And put it to your Account : Also sometimes it is expressed in the bill
thus, And put it to the Account of such an one," ibid 7.
8 Above 137. 6 Above 140-145.
154 THE LAW MERCHANT
effectually one deliverer of money, which is Francis : for albeit
that Peter was the first deliverer of the five hundred pounds, he
became a taker again of the said money, receiving the same of
William ; so that gradatim John is the first taker-up of the said
five hundred pounds, Peter is the second taker-up, William is the
third taker-up, and Nicolas is the fourth taker-up of the said five
hundred pounds of Francis. To this Francis is the bill of ex-
change given, payable to his friend, factor or servant in the place
for which the money was taken up. But the said bill is made by
John, the first taker-up of the said money, declaring, that the value
of it was received of Peter, for William and for Nicolas, upon the
account of Francis, which is the last deliverer of the money ; which
bill being paid, all the parties in this exchange are satisfied and
paid : which is done with great facility." l
This method of assigning a bill of exchange had one very
great advantage over that used in the case of bills obligatory. All
the parties' names appeared on the bill, and they could therefore
all be made liable on it. "As for example, Francis, the party
who took this bill, as being deliverer of it (the money) at last,
must go a retrograde course herein, if John who made the bill,
and was the first taker-up, do not pay the same : Francis then
seeketh Nicolas, Nicolas seeketh William, William seeketh Peter,
and Peter seeketh John, the first taker-up of the money of him.
Suppose that John is broken, then he goeth to Peter ; if Peter is
broken, then to William; if William is broken, then to Nicolas;
if Nicolas is broken, then all is lost. So that all of them are
answerable to this bill as above said."2
But this was a cumbersome process. The merchants, in their
efforts to find more convenient methods, were accustomed either to
send letters of credit,3 or bills with the names left blank to be filled
up by their foreign agent,4 or to make the bill payable to the
payee " or the bringer thereof." As to the effect of these words,
when Malynes wrote, I must say a few words.
Malynes expressly cautions merchants not to insert these
1 Malynes, op. cit. 271. 2 Ibid 274.
3 " A merchant doth send his friend or servant ... to buy some commodities or
take up money for some purpose, and doth deliver unto him an open letter, directed
to another merchant, requiring him that if his friend . . . the bearer of that letter
have occasion to buy commodities or take up moneys . . . that he will . . . procure
him the same . . . and he will provide him the money, or pay him by exchange,"
ibid 76.
4 " There is also a custom that a master to his servant or one friend to another
will send bills of exchange with the names in blank from one country unto another,
as from Hamburgh to Embden, or from Antwerp to Amsterdam, and from thence
to Dansic ; and at Amsterdam the names are put in to whom to be paid, and of whom
received," ibid 272 ; a similar plan was pursued in the case of the bill obligatory,
ibid 77.
THE ENGLISH DEVELOPMENT 155
words.1 But that they were generally inserted is clear from some
of the specimens of bills in the Admiralty records,2 and from the
early seventeenth-century precedents of pleading.3 We have seen
that abroad their insertion did not at this period give the bearer
a right to sue ; 4 and we shall see that, when bills of exchange
became common in the English courts, the same rule was adopted.
But it would appear that, if the bill contained these words, a pay-
ment by the acceptor to the bearer discharged the acceptor.5
Malynes' book was published in 1622.° In 165 1 Marius, a
notary public, published a small tract giving practical advice upon
bills of exchange." An enlarged edition, published in 1670, was
said by the author to embody twenty-four years' experience in his
profession. But it would appear from the preface that the new
edition did not embody any very striking changes in the law, but
rather consisted of a number of additions to the information given. s
If this be so, it is clear that between 1622 and 1651 very great
advances had been made towards making the bill of exchange a
negotiable instrument And, having regard to the state of the law
on the Continent, this is not surprising. It was during this period
that the practice of making bills payable to order, and of trans-
ferring them by indorsement, was becoming common ; and it is
clear from the French legislation that it was becoming more and
more common to make both bills and other instruments payable to
bearer.9 All the specimens of bills which Marius gives are made
payable to A or assigns or to A or order, and the assignment or
1 " Neither may you make a bill of exchange payable to the bearer or the bringer
thereof (as you make your bills obligatory beyond the seas)," Malynes, op. cit, 270.
■ The bills of 1562 and 1563, Select Pleas of the Admiralty (S.S.) ii 73, above
152, have this clause.
3 Brownlow, Declarations (ed. 1659) 266, 267 — the date in the pleading is 1605 ;
Vidian, Exact Pleader (ed. 16S4) 66, 67 — the date in the pleading is 1620 ; in 1622
West, Symboleography § 660, gives a bill payable to R.P. or the bringer thereof;
on the other hand the pleadings in Rastell f. 10a, and the pleading in Heme's
Pleader 136-137, which are all from the last half of the sixteenth century, do not con-
tain this clause; similarly the clause to A or assigns, though not mentioned by
Malynes, was used at this time; below 156 n. 1.
* Above 124-125.
5 This was clearly so when Marius wrote, and probably so when Malynes wrote,
though he nowhere expressly states this; Marius, Practical Advice 13, says, " A bill
which shall be payable to Robert W. or the bearer hereof may chance to miscarry or
come to a wrong man's hands, and he may go and receive the money upon such a bill
. . . And he that paid it will produce the bill itself for his warrant to pay it to whom-
soever shall bring it" ; cp. Hodges v. Steward (1691) 1 Salk. 125, where a similar
rule is laid down.
6 For Malynes and his book see vol. v 131-134.
7 My citations are from the ed. of 1684 which is contained in the folio ed. of
Malynes' Lex Mercatoria.
8 " I have now . . . not only comprised what was formerly handled, and some-
thing enlarged upon the same for the better understanding thereof ... I have in a
manner gone through the whole body of Exchange."
9 Above 125-126, 142.
156 THE LAW MERCHANT
order is indorsed on the back.1 Moreover, it is clear that the
assignee or indorsee might himself assign or indorse over.2 If the
bill was indorsed in blank the holder might either insert his own
name as indorsee, or, on getting payment, write a receipt for the
money.3 That bills were sometimes also made payable to bearer
is clear from Marius's warning of the dangers of the practice.4 On
the other hand, a bill might be payable to A simply. In that case
it admitted of no assignment.5
On many other points Marius follows closely the rules of law
observed on the Continent. Thus the rules as to acceptance for
honour ; 6 the irrevocability of acceptance ; 7 protest in case of non-
acceptance, undue acceptance, or non-payment ; 8 days of grace ; 9
the efficacy of a verbal acceptance ; 10 liability on a lost bill ; n the
liability of an indorser to his own and, perhaps, to subsequent
indorsees 12 — all follow closely continental rules of law. On the
question whether a bill should be presented for acceptance as soon
as received, or whether the holder should wait till it falls due, he
strongly advocates the English custom that it should be presented
as soon as possible, in order that the other parties to the bill might
not be prejudiced.13 No doubt on this M and upon other points (e.g.
1 It may, however, be noted that, though the clause to order or to assigns does not
appear in the specimens of bills which Malynes gives, we get the clause to assigns in a
bill of 1554, Select pleas of the Admiralty (8.S.) ii 71, and also in a pleading dated
1627, Vidian, Exact Pleader, 68.
2 Marius, op. cit. 9 — for the forms of indorsement ; at p. 11 he tells us that on
outland bills (for these see below 158) three or four assignments are often written.
3 Marius, op. cit. 30 ; cp. Lambert v. Pack (1700) 1 Salk. at p. 128, for a similar
ruling by Holt, C.J., at nisi prius ; the real name of the case is Lambert v. Oakes, see
note to 1 Salk. 126 pi. 6, which case is reported 1 Ld. Raym. 443.
4 Above 155 n. 5.
6 " If the bill be made payable positively to such a man, and not to such a man
or his assigns or order, then an assignment on the bill will not serve the turn, but
the money in the strictness of the letter must be immediately paid to such a man in
person, and he must be known to be the same man mentioned in the bill of exchange.
. . . And if the bill is made payable positively to such a man as hath been said, such
a man's name written on the backside of the bill in blank, is no sufficient warrant
for another man to come (as in his name) to receive the money, but the man himself to
whom the bill is payable must appear in person," Marius, op. cit. 34 ; this was the
common-law rule, see Hill v. Lewis, 1 Salk. at p. 133, per Holt, C.J. ; but after the
statute of Anne (3, 4 Anne c. 9) a note payable to A simply was decided to be a
promissory note within the statute, see Burchell v. Slocock (1728) 2 Ld. Raym. 1545 ;
quare did this make such notes negotiable ? It would seem that it did, below
*73 n. 5 ; in England the Bills of Exchange Act, 45, 46 Victoria c. 61 §§ 3.1, 8.4,
89.1, has made the rule as to notes applicable to bills; in the U.S.A. the opposite
course has been pursued, Street, Foundations of Legal Liability ii 387.
6 Marius, op. cit. 21, 31. 7 Ibid 20.
8 Ibid 13, 17, 21, 24, 28, 29. ,J Ibid 15, 23, 24. lu Ibid 16.
11 Ibid 19, 20 ; cp. below 157 n. 3.
12 >i where there are any assignments on bills negotiated, always the party tint
receives the value is directly bound to him of whom he hath received it, and the
acceptor to the last assigned," ibid 27.
13 Ibid 12.
14 Whitehead v. Walker (1842) 9 M. and W. 506 at p. 515 per Parke, B. ; for the
present law see 45, 46 Victoria c. 61 § 39,
THE ENGLISH DEVELOPMENT 157
as to the possibility of a verbal acceptance,1 as to the validity of a
gratuitous promise to accept,2 and as to the rights of the parties on
a lost bill) 3 English law was ultimately settled to be the contrary
of the rules which he laid dowa But when he wrote, English law
on this topic was, as we shall see, but scanty. Probably he had
an accurate knowledge of such points of law as had been actually
decided.4 At any rate, it is certain that the large majority of his
rules upon points of form, practice, and procedure, have been
adopted, and are at the present day part of English law.5
It is clear therefore that, when Marius wrote, a bill of exchange
made payable to order had, in mercantile practice, acquired one of
the most important elements of negotiability — a capacity to be
transferred indefinitely by indorsement and delivery. On the
other hand, a bill of exchange made payable to bearer was probably
still in the same position as it was in when Malynes wrote. But
Marius leaves us uncertain as to how far these bills possessed the
other two elements of negotiability — the capacity of a bona fide
holder for value to get a better title than his transferor, and the
presumption of consideration. Thus he says nothing at all on the
question whether a holder of a bill in good faith, who has acquired
it from one who had no title or a defective title, can sue upon it.
But it would appear from Malynes that mercantile opinion was in
favour of the view that an acceptor was always prima facie liable
to pay ; and that the facts (i) that the drawer had become insolvent
since the acceptance ; and (ii) that the drawer had not received
value from the payee— were no valid defences to an action by the
holder.6 On the other hand, Marius would seem to be of opinion
that if the payee had not given value, and the drawer had satisfied
1 Marius 16 ; for the subsequent development of the law see Hindhaugh v. Blakey
(1878) 3 C.P.D. at pp. 139-141 ; that case decided that the bare signature was not
enough ; but this was overruled by 41, 42 Victoria c. 13 ; repealed and re-enacted by
the Bills of Exchange Act, 45, 46 Victoria c. 61 § 17 (2) (a).
2 Marius 16 ; Johnson v. Collings (1800) 1 East 98 ; Street, op. cit. 399-401.
3 Marius 19, 20 ; Hansard v. Robinson (1827) 7 B. and C. 90 ; Street, op. cit.
375-376-
4 Thus, as Street points out, op. cit. ii 376, he knows that the proper form of
action against the acceptor is not assumpsit, but an action on the case based upon the
custom.
5 See e.g. Tassell v. Lee, 1 Ld. Raym. 743 — approval by Holt, C.J., of the
mercantile customs of protest and days of grace.
6 Lex Mercatoria 274 — the case was as follows: — A merchant at Antwerp drew
on a merchant in London for £800 to pay a creditor of his in Antwerp. The London
merchant accepted these bills ; and then the drawer became insolvent. The acceptor
then stated that he would not pay the bills because the insolvent drawer had not
received value of the payee — though in fact the bills had acknowledged the receipt
of value. The answer given to this was that the acceptor must pay because " for
other matters they had nothing to do therewith." The acceptor then died and no
decision was reached ; but, says Malynes, "the opinion of other merchants and my
own is, that the acceptor of the bill was to pay them, and his heirs and executors are
liable thereto, unless there were found an apparent combination and practice in it
between the two merchants of Antwerp, as was by many suspected."
158 THE LAW MERCHANT
the person who had given value, neither the payee nor subsequent
indorsees could sue the drawer ; for the payee's right to sue was
based, as it was abroad, on the fact that he was either the deliverer
of the money to the drawer, or the principal or agent of such
deliverer, or a creditor of the drawer by reason of some precedent
debt.1 But it would appear that the acceptor remained liable to
the drawer, and perhaps to subsequent indorsees.2 It is clear that
much was still uncertain. Of the three main features of negotia-
bility the bill of exchange was only just beginning to acquire one
— the feature of ready transferability. But though its negotiable
character was as yet in germ, it had began to develop in two other
directions.
In the first place, it had ceased to be used only in connection
with foreign trade. It could be used equally well in connection
with internal trade. If used in connection with foreign trade, it
was called an outland bill ; if used in connection with internal
trade it was called an inland bill.3 In the second place, though
four parties were still normally requisite to the making of a bill,4
a bill could be made as between three and sometimes as between
only two parties.5
1 Marius, op. cit. 35 — " If a bill of exchange be made payable to one man, for the
value received of another man, and the party on whom the bill is drawn hath
accepted the bill, but . . . faileth in the payment, and hereupon protest is made, and
by vertue of that protest the party which delivered the value doth recover satisfaction
of the drawer ; I say, in this case the drawer is freely discharged against the party or
parties to whom the said bill was made payable, either immediately in the bill, or
mediately by assignment or assignments were they never so many on the bill."
2 " Neither can he to whom the bill is first made payable (if but an assign of the
deliverer) prosecute the acceptor (after the drawer hath given satisfaction to the
party which delivered the value) "... but, " the acceptor is not totally discharged.
... In reference to the party that delivered the value first, and the party to whom
the bill was payable (supposing himself to be but an assign of the deliverer) the
acceptor doth but confirm what the drawer hath done, and the drawer having made
satisfaction to the deliverer, the acceptor is likewise discharged against the deliverer,
and against the party to whom the bill was first payable (if he be but an assign) ; but
the acceptor, by vertue of his acceptance, makes himself debitor, and is still liable to
the drawer, or to the account for which he accepted the bill, until satisfaction be
given," ibid.
3 Ibid 2 — but Marius thinks it necessary to state that these inland bills are
"as effectual and binding" as outland bills; he cites a book of John Trenchant
on arithmetic, printed at Lyons in 1608, for the older view that properly Exchange
should only be recognized as between towns "in subjection unto divers lords," who
do not allow the transport of money, or because of the risk of loss in transport ; in
some of the earlier pleadings only outland bills seem to be contemplated as valid by
the custom, see e.g. Liber Placitandi (1674) 41 — a precedent dated 1636 ; the bill of
exchange mentioned in Acts of the Privy Council (1613-1614) 578 is an outland bill.
4 Marius, op. cit. 2 ; above 153.
5 " First the drawer, and secondly the party on whom it is drawn ; the drawer he
makes a bill of exchange payable to himself or order for the value in himself, and
subscribes the bill, and directs it to the party that oweth him money, and is to pay it
by exchange, by which bill (when the party on whom it is drawn hath accepted it) he
becometh debtour to the drawer, and he before the bill falls due, doth negotiate the
parcel with another man, and so draws in the money at the place where he liveth,"
ibid ; cp. Buller v. Crips (1702) 6 Mod. at p. 30 per Holt, C.J.
THE ENGLISH DEVELOPMENT 159
These two developments show us that in England, as abroad,
the process is begun which will make the bill of exchange a form
of paper currency.1 But as yet it is only begun ; and we shall see
that some of these developments tended to make English lawyers,
whose acquaintance with these mercantile instruments was as yet
slight, confuse the bill of exchange with those bills obligatory or
bills of debt, to which the merchants were endeavouring to give
somewhat the same transferability as the bill of exchange had
acquired. Of this, however, I cannot speak till I have examined
the process by which the bill of exchange was received into Eng-
lish law, and its negotiable characteristics developed by the courts
of common law.
(ii) The recognition and development of the bill of exchange in
English law.
It was the development of the action of assumpsit which gave
to English lawyers a form of action well fitted to enforce many
various kinds of mercantile contracts.2 In the latter part of the
sixteenth century it occurred to some lawyers that it might be used
to enforce the rights of the parties to a bill of exchange. The first
edition of Rastell's Entries, which was published in 1564, contains
a pleading in which this attempt was made;3 and the second
edition, published in 1670, contains two more precedents of the
years 1595 and 1596.4 In Heme's book on pleading there is
another precedent, taken from a court roll of the year 1586, in
which a similar attempt was crowned with success ; 3 and in
Martin v. Boure6 (1602) — the earliest reported case on a bill of
exchange — assumpsit was again adapted to enforce the rights of
some of the parties, and again with success.
But these authorities show us that the statement, in the terms
of assumpsit, of the rights of the parties to a bill of exchange, was
as difficult for the common lawyers as the statement of these rights,
in the terms of the Roman law of obligatio, was for the civilians.7
The precedent in Rastell's first edition sets out that one A had
delivered money to B (the drawer) ; that in return for this money
B had promised that one John of G. (the drawee) would pay a
certain sum to Reginald S. (the payee), who was the factor of A ;
and if John of G. did not pay, that then B would do so ; it then
avers that the drawee had not paid the money to the payee,
1 Above 145. 2 Vol. iii 428 seqq.
3At f. io», cited Street, Foundations of Legal Liability ii 341 n. 1, and Cranch,
Promissory Notes, Essays, A.A.L.H. iii 76-77 ; for this book see vol. v 384, vol. vi 6S3.
4 Rastell, Entries ff. 338a-33ga.
B Heme's Pleader (ed. 1657) 136-137, the reference given is Trin. 13 Eliza. Rot.
mmxxi ; for this book see vol. v 385.
«Cro. Jac. 6. 7 Above 137-140.
160 THE LAW MERCHANT
and that, if he had done so, the money would have come to the
profit of A ; and that B (the drawer) has refused to fulfil his contract
by paying it. It is fairly clear that this is an action against a
drawer by a deliverer of the money, who was in substance the
principal of the payee.1 As we have seen, the payee's right of
action was explained in a similar way by continental jurists.2 The
pleadings in Rastell's later edition, and in Heme, are adapted to
actions by a payee against an acceptor and a drawer respectively.
All these later precedents are more explicit than Rastell's earliest
precedent, in that the instrument is termed a " bill of exchange," and
reference is made to the custom of the merchants. But they all
state the cause of action in a somewhat similar manner. Thus the
precedent in Heme's book alleges that W (the deliverer of the
money and the payee) paid money in England to H (the drawer) ;
that H in consideration thereof promised to pay to W at Hamburg
a certain sum in two months time ; that in fulfilment of this con-
tract H gave to W " his bill of exchange made according to the
use of merchants," whereby he directed his factor R (the drawee)
to pay the money ; that R promised to pay the money (i.e. he ac-
cepted the bill) ; and that in breach of his promise he had neglected
to do so. The facts in the case of Martin v. Boure are rather more
complicated, and the pleadings as summarized in the report are
somewhat obscure. But it would seem that the action was brought
by the drawer against the acceptor for a failure on the part of the
acceptor to pay, in consequence of which failure he (the drawer)
had been obliged to pay to the payee.3
It was shortly after the decision in this case that the pleaders
adopted another and a much more satisfactory device for stating
the rights of the parties. We have seen that, at the beginning of
the seventeenth century, it was coming to be generally admitted
that a general mercantile custom was a part of the common law.4
It followed that in these actions it would be sufficient to state the
facts, and allege that the rights and duties of the various parties to
the bill arose merely by virtue of this custom. This course was
followed in Oaste v. Taylor'* in 1612, and in all subsequent cases.
In many of them the custom relied upon is stated at considerable
length.6 At the end of the century a step further was taken in
the direction of simplifying the pleadings. It was said that these
1 Above 137. - Above 139-140.
3 See Street, op. cit. ii 347. 4 Vol. v 145.
5 Cro. Jac. 306 ; as Street says, op. cit. ii 348-349, " upon reference to pleadings
in that case the reader will see what lengthy recitals could be pared off upon accept-
ance of the idea of duty arising from a custom of merchants."
6 See the recitals in Brownlow, Declarations (ed. 1659) 266-267 ; Vidian, the Exact
Pleader 66, 67, 70 ; Cramlington v. Evans (1691) 2 Vent. 298, 300 ; cp. Barnaby v.
Rigalt (1633) Cro. Car. 301-302.
THE ENGLISH DEVELOPMENT 161
mercantile customs being part of the common law it was unneces-
sary to plead them specially.1
These changes in methods of pleading effected, as Mr. Street
has said,2 a great simplification in the statement of cases turning
on these bills. They also had, as changes of pleading very often
have, a considerable effect upon the development of the law. Under
cover of these convenient phrases about the custom of the mer-
chants, it was easy to introduce into the common law both the
legal principles familiar to continental lawyers, and the commercial
practices familiar both to English and to foreign merchants. The
common law entered into the fruit of the labours of many genera-
tions of continental lawyers and merchants, when it thus took over
the bill of exchange at the stage of development which it had
reached in the middle of the seventeenth century.
The manner in which the judges incorporated the law as to bills
of exchange with the common law can be read in the reports of the
seventeenth century — more especially in the reports of the last years
of that century, during Holt's tenure of the office of chief justice
of the King's Bench. From these reports we can gather that the
common law was beginning to possess a body of doctrine upon the
rights of the parties to bills of exchange; that the negotiable
character of these bills was beginning to emerge with some clear-
ness ; and that the administration of the law relating to them by
the common law courts, was beginning to differentiate the English
law as to bills of exchange from that of the Continent.
(f) The rights of the parties.
Let us recall the rights of the four normal parties to the bill of
exchange, and see how they were envisaged by the common law.3
(a) The relations of the person who has paid over the money, which
he wishes to remit, to the drawer who has received it. It would
seem from the books of precedents of the latter part of the six-
teenth and of the seventeenth century, that his rights in England
were based upon substantially the same ground as that upon
which they were based abroad. The drawer, who has received
money from the remitter, must fulfil his contract by paying it over to
the person on whose behalf he has received it4 (J?) The relations
1 Williams v. Williams (1694) Carth. 269, 270 : " 'tis needless to set forth the
custom specially in the declaration, for 'tis sufficient to say that such a person secun-
dum usum et consuetudinem mercatorum drew the bill ; therefore all the matter in
the declaration concerning the special custom was merely surplusage, and the declara-
tion good without it " ; Bromwich v. Lloyd (1698) 2 Lut. 1585 ; cp. vol. v 145-146.
3 Op. cit, ii 348, 349.
3 See above 137-140 for the continental law.
* Rastell, Entries 338b ; Vidian, op. cit, 66-67 ; Woodward v. Rowe (1666) 2 Keb.
106 — " By the common law a man may resort to him that received the money if he to
whom the bill was directed refuse " ; Mogadara v. Holt (1692) Holt 114 — " The drawer
is chargeable by the value received," per Holt, C.J.
VOL. VIII.— II
162 THE LAW MERCHANT
of drawer and drawee. The books would seem to show that
their relations were based, either upon the fact that the drawee was
the agent of the drawer,1 or that he is the debtor of the drawer.2
(c) The relations of acceptor and payee. The cases make it quite
clear that the courts adopted the principle that an acceptance was
equivalent to a promise to pay, upon which, by the custom of the
merchants, an action lay.3 But it was clear, in some cases at least,
that the consideration for this promise did not move from the payee.
Thus if A gives money to B to transmit to C, and B draws a bill
on X in favour of C which X accepts, there is no consideration
moving from C to X. It follows that there is no privity of contract
between them. It was therefore held that the payee could not sue
in debt or indebitatus assumpsit, but must make use of an action
on the case based on the custom.4 In other words, the common
law recognized the liability, recognized that it was not contractual,
and therefore, without further analysis allowed an action on the case
to enforce a custom of which it approved, (d) The relations of the
pavee and drawer. Here again the courts followed mercantile
custom and continental law, by basing the payee's right of recourse
against the drawer, in the event of non-acceptance or of non-pay-
ment by the acceptor, upon the existence of some sort of agency
between the payee and the person who had given value to the
drawer. This relation of agency was often set out in the earlier
pleadings.5 In 1666 the Court stated that it would always be
presumed.6 But a relationship which will always be presumed is
generally becoming fictitious. By the end of this period the
drawer's liability is coming to be based upon a different ground.
It is said that the act of drawing a bill implies a warranty to the
payee that it will be paid.7 The use of a term, which is reminis-
1 Rastell, Entries 338a ; Heme, Pleader 136 ; but the cause of action is sometimes
stated more generally. Thus in a precedent, which is dated 1636, it is stated that
according to mercantile custom (which as usual is set out at some length) if one mer-
chant (A) draws on another (B), and B refuses to pay, A becomes liable ; and A on
this ground claims to hold B liable, Liber Placitandi (1674) 41-42.
2 See the facts as found by inquisition in Cramlington v. Evans (1691) 2 Vent, at
p. 309.
3 (1613) Oaste v. Taylor, Cro. Jac. 306 ; Barnaby v. Rigalt (1635) Cro. Car. 301-302.
4 Brown v. London (1670) 1 Vent. 152; 1 Mod. 285, and note to the report in
Modern ; Rainsford, C.J., said, " This is the very same with Milton's Case . . . where
it was adjudged that an indebitatus assumpsit would not lie . . . we all agreed that
a bill of exchange accepted, &c, was indeed a good ground for a special action upon
the case; but that it did not make a debt " ; cp. Hodges v. steward (1692) 1 Salk. 125.
5 Rastell, Entries ff. 10a, 339a ; cp. Street, op. cit. ii 352
6 Woodward v. Rowe (1666) 2 Keb. 133 — An action against the drawer, and,
" Judgment pro plaintiff (the payee) per totam curiam, and they will intend that he of
whom the value is said to be received by the defendant was the plaintiff's servant."
7 Starke v. Cheeseman (1700) 1 Ld. Raym. 538 — Holt, C.J., said, " He who draws
a bill warrants the payment of it, and if he does not, it is a deceit, and one may have
an action upon it " ; the report goes on to state that the plaintiff afterwards got judg-
ment because "the drawing of a bill was an actual promise"; cp. Claxton v. Swift
THE ENGLISH DEVELOPMENT 163
cent of the sale of goods, is perhaps a sign that it is coming to be
recognized that the bill operates as a conveyance as well as con-
ferring contractual rights.1 But as yet this idea is new, and the
courts have not grasped it firmly. Here, as in other cases, the
courts were generally satisfied with stating that, by the custom of
the merchants, the drawer is liable to the payee in the event of
non-acceptance or of non-payment by the acceptor, and with giv-
ing effect to the custom. We must wait till the following period
for the more extensive use of the idea of warranty to explain the
liabilities inter se of the various parties to a bill.2
I have not yet described all the possible parties to a bill of
exchange. There are also the rights of indorsers and indorsees,
and of the bearer of a bill made payable to X or bearer. But
their position I can best deal with under the next head.
(it) The negotiable character of the bill of exchange.
We have seen that the quality of negotiability includes three
main peculiarities — (a) the mode of transfer ; (b) the fact that the
title of the holder is unaffected by defects in or the absence of title
on the part of his transferor ; and (c) the presumption of considera-
tion.3 The reports show us that, by the end of the century, all
these peculiarities were beginning to be recognized.
(a) It was recognized that if a bill was payable to X or order,
or to X or his assigns, the bill could be transferred by indorsement
and delivery ; 4 and further, that the indorsee could in like manner
transfer his rights.5 On the other hand, a bill which was payable
to X simply could not be so transferred.6 The rights of the
indorsees depended upon the principle that each indorsement
amounted in substance to the drawing of a new bill.7 The
(1687) Comb. 32-33, the indorser's liability is explained by reference to the law as to
warranty — " no case in law resembles this, but that of a warranty " ; cp. Anon. (1694)
Holt 115.
1 Above 142-143, 145 ; we see the same idea in an anonymous nisi prius case of
1699 reported 1 Salk. 126 ; it was ruled that trover would lie against the finder of
a lost bank bill, but not against his assignee, " by reason of the course of trade which
creates a property in the assignee or bearer."
2 See Street, op. cit. ii 411-415 ; cp. 45, 46 Victoria c. 61 §§ 54-56.
3 Above 113-114.
* " When the bill is payable to J.S. or order there an express power is given to the
party to assign, and the indorsee may maintain an action," Hodges v. Steward (1692)
1 Salk. 125.
8 " As to the appointment, this will not make an order at common law, because
there are two indorsements; and if I give my servant an authority to receive, he
cannot authorize another ; otherwise if but one ; then payment to the first indorsee
would be a payment to the person, therefore you here depend upon the law of
merchants, which at present I think we ought to take notice of," per Ventris, J., Carter
v. Downish (1686) at p. 130 ; cp. above 141-143 for the growth of this principle on the
Continent.
•Above 156.
7 Williams v. Field (1694) 3 Salk. 68— " Every indorsement is a new bill and
implies a warranty by the indorser that the money shall be paid": Harry v, Perrit
(1711) 1 Salk. 133. '
164 THE LAW MERCHANT
indorsee's right against his indorser therefore depended upon the
same principle as the right of the payee against the drawer.1 The
indorser by indorsing warrants that the indorsee shall be paid.
From this principle two consequences flowed. In the first place,
the last indorsee could sue any of the indorsers, as well as the
drawer;2 and, after some hesitation, it was held that each indorser
could be made primarily liable on the bill, and not merely liable
only in the event of the drawer failing to pay.3 In the second place,
although a bill made payable to A simply did not admit of transfer,
yet if A indorsed it to B, and B to C, C could sue B or A upon
their indorsements.4
It was only if a bill was payable to A or order or to A or assigns
that it was transferable. It was held, after a little hesitation, that
a bill payable to A or bearer was not so transferable.5 It was
treated as a bill payable to A simply. It is true that if the bill
were made payable to bearer, a payment to the bearer would dis-
charge the acceptor ; 6 but the bearer could not sue on such a bill
in his own name. He could only sue in the name of the person to
whom the bill was payable.7 It is probable that the judges, when
they laid down this rule, were influenced by the prevailing conti-
nental practice. We have seen that it was not till 1721 that the
bearer was given a right of action in France ; 8 and it was not till
1764 that it was clearly and finally laid down by the English
courts, in the case of Grant v. Vaughan? that the bearer of a bill of
exchange, made payable to A or bearer, had an independent right
of action. This development was assisted by the fact that, long
before that date, the Legislature had allowed the bearer of a
promissory note, made payable to bearer, to sue in his own name.10
The older cases do not, as we shall see, distinguish very clearly
between notes and bills.11 It was thus possible to apply the law
1 Above 162-163. 2 Williams v. Field (1694) 3 Salk. 68.
3 Holt, C.J., ruled in Lambert v. Pack (1700) 1 Salk. 127, that a demand on the
drawer must be proved before the indorser could be sued ; this was dissented from
in Harry v. Perrit (171 1) 1 Salk. 133, and overruled in Bomley v. Frazier (1722) 1 Str.
441, on the ground that the delay so caused would impede the circulation of these
bills ; cp. Haylyn v. Adamson (1758) 2 Burr, at pp. 675, 676.
4 Hill v. Lewis (1709) 1 Salk at p. 133 — " The indorsement of a bill which has
not the words, or to his order, is good, or of the same effect betwixt the indorser and
the indorsee, to make the indorser chargeable to the indorsee."
s Hinton's case (1682) 2 Shower 236, the bearer of a bill of exchange made payable
to J.S. or bearer sued, and Pemberton, C.J., ruled "that he must entitle himself to
it on a valuable consideration ... for if he come to be bearer by casualty or knavery
he shall not have the benefit of it " ; it was held in Hodges v. Steward (1692) 1
Salk. 125 that a bill so drawn was not assignable; the reason given in Nicholson v.
Sedgwick (1698) 1 Ld. Raym. at p. 181 was that " if the bearer be allowed to bring
the action in his own name, it may be very inconvenient ; for then anyone, who finds
the note by accident, may bring the action."
6 Hodges v. Steward (1692) 1 Salk. 125.
7 Nicholson v. Sedgwick (1698) 1 Ld. Raym. at p. 181.
•Above 125-126. 93 Burr. 1516.
10 Below 173. u Below 171.
THE ENGLISH DEVELOPMENT 165
as to notes to bills ; and give to bills to bearer the same advant-
ages that bills to order had previously enjoyed ' It followed that,
in the case of a bill to order indorsed in blank, the holder could
sue as the bearer.1 He was no longer obliged (as he was in this
period) either to fill up the blank and sue in his own name, or
leave the blank not filled up and sue in the name of the indorser.2
(£) It was during this period that the right of the bona fide
holder for value to recover on a bill, notwithstanding a defect in or
even an absence of title on the part of his transferor, was gradually
gaining recognition. This feature of negotiability — the most im-
portant and the most characteristic of all its features — was not yet
clearly defined. It was not yet clearly defined mainly because the
rights of the bearer as such were not yet clearly recognized. We
have seen that it rests ultimately upon the view that the acceptor,
or other party liable upon the bill, has contracted to pay any one
who is the bearer in the case of an instrument payable to bearer, or
any bearer in whose favour an order has been indorsed on the bill
in the case of an instrument payable to order.3 It is in the case
of a bearer instrument that this most clearly appears, because the
bearer cannot, as Mr. Street puts it,4 be treated "as an attorney or
representative, or as taking by mere assignment an estate that had
been vested in another." He must be treated "as taking his title
directly from the grantor " ; and the grantor must be treated as
contracting directly with him. This view is clearly expressed in
one of the cases of the late seventeenth century, in which the courts
had adopted the view (maintained by the court of Chancery 5 but
afterwards dissented from by the courts of common law 6) that the
bearer of a note payable to bearer could sue: — "Traditio facit
chartam loqui: and by the delivery he expounds the person before
meant ; as when a merchant promises to pay to " the bearer " of the
note, any one that brings the note shall be paid." " It was not till
the independent rights of the bearer were recognized by the cases
decided in the latter half of the eighteenth century, that the rights
1 Peacock v. Rhodes (1781) 2 Dougl. at p. 636: "I see no difference between a
note indorsed blank, and one payable to bearer," per Lord Mansfield.
a Clark v. Pigot (1699) * Salk- 126 — the plaintiff having a bill payable to himself
or order indorsed it in blank and sent it to J.S. The money not having been paid, he
sued the acceptor. Holt, C.J., said, " J.S. had it in his power to act either as servant
or assignee : if he had filled up the blank space making the bill payable to him, that
would have witnessed his election to have received it as indorsee; but that being
omitted, his intention is presumed to act only as servant to Clark."
3 Above 144. * Foundations of Legal Liability ii 370-371.
'Crawley v. Crowther (1702) Freeman, Cases in Chy. 258.
6 Above 164 a. 5.
7 Shelden v. Hentley (1681) 2 Show, at p. 161 ; cp. Crawley v. Crowther (1702)
Freeman, Cases in Chy. 258 where it is said that, " If a bill be payable to A or bearer,
it is like so much money paid to whomsoever the note is given, that let what accounts
or conditions soever be between the party who gives the note and A to whom it is
given, yet it shall never affect the bearer, but he shall have his whole money."
166 THE LAW MERCHANT
of the bona fide holder of a bill of exchange were so clearly-
recognized and explained.1
But even at this period, when it was only a bill payable to A or
order or to A or assigns that was fully transferable, this element of
negotiability was beginning to emerge. It was being reached by
two different routes. In the first place, it was said that if A accepts
a bill payable to B or order, it is a contract by A to pay either B or
any assignee in whose favour B makes his order.2 That being so,
the mere fact that A might have had some defence to an action on
the bill if B had sued him, will not allow A to set up that defence
if he is being sued by B's assignee. Thus in Hussey v. Jacob 3 it
was said by Holt, C.J., that a bill of exchange, given to X or order
for a gaming debt, and void under the statute of 16 Charles II. c. 7,
could be sued on by X's assignee, at any rate if it had been accepted
after the assignment.4 In the second place, this view of the superior
rights of the assignee was assisted by the theory that each indorser
of a bill of exchange in effect draws a new bill.5 It follows that he
is liable to his indorsee irrespective of any weakness in his own
position. Thus it was laid down in Hill v. Lewis? that, if a bill
was drawn without words of negotiability, the drawer was not
liable to an indorsee of the holder, but that the indorser was liable
to the indorsee. Moreover, even if the bill had been forged, the
indorser was liable.7 In both cases the indorser was liable on the
new bill which he had drawn.
These cases go the length of deciding that the holder of a bill is
not liable to be met by the defences which would be valid against his
transferor. In other words, the bill is assignable free from equities.
But suppose that the bill has been stolen, and that the holder has
acquired through the thief — could not the acceptor refuse to pay,
on the ground that the holder was not an assign at all ? On the
principles recognized at this period it would seem that he ought
to have been able to refuse. Yet it was ruled by Holt in an
anonymous nisi prius case that, if a bank bill payable to A or bearer
(i.e. a non-negotiable bill) was lost, and was found by X, who in-
dorsed it to C, A could sue X in trover, but not C, "by reason of
the course of trade which creates a property in the assignee or
1 As for instance in Peacock v. Rhodes (1781) 2 Dougl. at p. 636.
2 " When a bill is payable to J.S. or order, there an express power is given to the
party to assign, and the indorsee may maintain an action," Hodges v. Steward (1692)
1 Salk. 125.
3 (1697) 1 Comyns 4.
4 " If such a note was given to the winner or order, and the winner indorsed it to
a stranger for a just debt, and the person upon whom the bill was drawn accepts
it in the hands of the stranger, the acceptor would be liable," ibid at p. 6, per Holt,
C.J.
8 Above 163. * (1709) 1 Salk. 132.
7 Lambert v. Pack (1700) 1 Salk. 127.
THE ENGLISH DEVELOPMENT 167
bearer."1 In other words, Holt again falls back on the custom
of the merchants, without giving any explanation of the rule laid
down. In fact, as I have said, no really satisfactory explanation
could be given till the negotiability of bearer bills was recognized.
(c) In a bill of exchange drawn in the usual form the drawer
always states that he has received value. Malynes tells us that
the receipt of value was necessary to the validity of bills obliga-
tory ; 2 and the forms of bills of exchange show that this is also
true of bills of exchange. But, from an early date, the statement
on the face of the bill that value had been received, seems to have
been regarded as creating a presumption in favour of the exist-
ence of a consideration ; 3 and it was held in 17 14 that this pre-
sumption would arise whether or no the words "value received"
were present4 Such consideration, whether proved or presumed
to exist, will give the holder the right to sue the acceptor or any
of the other parties liable on the bill. But it is now settled that
if it can be shown that no consideration was ever given as between
any of the parties, no action can be brought on the bilL It is not
true therefore to say that no consideration is necessary for the
validity of a bill of exchange ; but it is true to say that there are
two points in which the doctrine of consideration is applied to bills
of exchange in a manner different from that in which it is applied
to other contracts. In the first place, the burden of disproving the
presumption that consideration has been given is on the defendant ;
and, in the second place, if consideration has once been given
for the drawing of the bill or in the course of its negotiation,
the presumption that consideration has been given is irrebuttable.5
It follows that there is no need for consideration to move from
the holder who is suing ; and this exception from the ordinary
rule was, as we have seen, technically justified by giving the
holder, not an action of assumpsit, to succeed in which he would
be obliged to prove a consideration moving from himself, but an
action on the case.6
These results were not ascertained till after this period. As
we have seen, the courts were inclined to explain the rights of
1 (1699) 1 Salk. 126 ; above pp. 164, 165-166.
2 Lex Mercatoria, 74, "the civil law and the law merchant do require that the
bill shall declare for what the debt groweth, either for merchandize or for money, or
any other lawful consideration " ; the form of words '* current money for merchandize,"
which were sometimes found, were inserted to get the benefit of the higher rate of
interest which was allowed for money *' in the course of traffic," ibid 74-75.
s " If the drawer mention it 'for value received,'' then he is chargeable at common
law," Cramlington v. Evans (1685) 1 Shower 5 per Holt, C.J.
4Joscelinev. Lassere (1714) Fortescue 281; cp. Hatch v. Trayes (1840) n Ad.
& EL 702 ; Street, op. cit. ii 382, 383, 391, 392.
* Ibid 389.
6 Brown v. London, above 162 n. 4 ; Hodges v. Steward (1692) 1 Salk. 125, and
note.
168 THE LAW MERCHANT
the parties by reference to the custom of the merchants, and very
rarely attempted to explain the principles upon which that custom
was based.1 It was clear that the doctrine of consideration could
not be applied to these bills in the same manner as it was applied
to ordinary simple contracts. For instance, an acceptor was liable
to an original payee or an indorsee, though no consideration had
moved from such payee or indorsee to the acceptor. Holt, there-
fore, and many of the other judges, came to the conclusion that
the bill of exchange was in the nature of a contract under seal.
Just as the seal made the agreement valid though no consideration
was present, so the custom of the merchants made the acceptor,
drawer, or indorser liable.2 All through this period this was
the prevailing theory. But it was contrary to the continental
view of the law ; 3 contrary to the view taken by the merchants ; i
and inconsistent with the ordinary forms of bills of exchange.5
The modern view was first laid down in connection with promissory
notes. We shall see that the negotiability of these notes was re-
cognized by a statute of 1704.6 In 1721 two of the judges ap-
plied to these notes the doctrine that the bill was in the nature of
a contract under seal ; but the other two judges and the lord
Chancellor held that the note was only a simple contract ; " and
notwithstanding the statute says that the money shall be due
and payable by virtue of the note, that only makes the note itself
evidence of a consideration . . . though the note itself be evi-
dence of a consideration, yet it is not conclusive evidence, but
turns the proof on the defendant to show that there was no con-
sideration given." 7 This view was accepted by the courts of
common law in relation to notes ; 8 and, though Lord Mansfield
decided in favour of the opposite view in Pillans v. Van Mierop?
the decision of the House of Lords in Rann v. Hughes™ made it
clear that a bill of exchange could not, merely because it was a
written contract, be in the same position as a contract under seal.11
It followed that the principle applicable to notes was applicable
to it.
1 Thus in Cramlington v. Evans (1685) 1 Shower 5, Holt, C.J., said that if there is
no mention of " value received," "then you must come upon the custom of the mer-
chants only" ; cp. Woolvil v. Young (1698) 5 Mod. 367.
2 Thus in Clerke v. Martin (1702) 2 Ld. Raym. at p. 758, Holt, C.J., said that to
allow the negotiability of promissory notes " amounted to the setting up of a new
sort of specialty " ; and he took the same view in Cutting v. Williams (1702) 7 Mod.
at p. 155 ; cp. Street, op. cit. ii 383.
3 Above 143. 4 Above 157; Marius, Advice 1.
5 Above 152-153. 6 Below 173.
7 Brown v. Marsh (1721) Gilb. Eq. Cases 154.
8 Jefferies v. Austin (1725) 1 Stra. 674.
9 (1765) 3 Burr. 1663 at p. 1669.
10 (1797) 7 T.R. 350 note; above 30.
11 See Street, op. cit. ii 3S8-389.
THE ENGLISH DEVELOPMENT 169
(tit) Some peculiarities in the English law as to bills of ex-
change.
By the end of the seventeenth century the law as to bills of
exchange was administered by the common law courts, and had
become part of the common law. It was not administered in
special mercantile tribunals, as was generally the case on the Con-
tinent1 This had two important and permanent effects on the
law. In the first place, the rule that the bill of exchange was
only valid as between merchants was obsolete by the end of the
seventeenth century. In the case of Bromwich v. Lloyd'1 Treby,
C.J., summed up the result of the cases as follows : " Bills of ex-
change at first were extended only to merchant strangers trading
with English merchants, and afterwards to inland bills between
merchants trading with one another here in England, and then to
all traders and business men, and lastly to all persons whether
traders or not." The first stage is represented in the work of
Malynes, the second in the Tract of Marius, and the third is the
result of the cases decided in the last quarter of the seventeenth
century. In the second place, as the bill of exchange ceased to
be used exclusively by traders, it came to perform a function other
than that of enabling a person to pay a debt in a distant place.
The rule still prevailing in France that " the place where a bill is
drawn must be so far distant from the place where it is payable
that there may be a possible rate of exchange between the two," 3
was disappearing as early as 1697.4 The result has been that "in
England bills have developed into a perfectly flexible paper cur-
rency. In France a bill represents a trade transaction ; in England
it is merely an instrument of credit. English law gives full play
to the system of accommodation paper ; French law endeavours
to stamp it out." 5 We have seen that even in France it is re-
cognized as performing some of the functions of a paper currency ; 6
but in England this function has been much more completely
worked out, largely because these bills have not been confined to
their original purpose of providing a method of avoiding the
dangers of a physical transport of money.7 This difference was
not fully apparent at the end of this period. Although a bill was
coming to be regarded as a species of currency, it was quite clearly
1 Vol. v 148-154. a (l697) 2 Lut. 1585.
'Chalmers, Bills of Exchange (7th ed.). Introd. lxii.
* The facts of Hussy v. Jacob, 1 Comyns 4, make this clear.
5 Chalmers, op. cit. lxi-lxii.
6 Above 145 ; cp. Chalmers, op. cit lxi. note.
7 As early as 1720 this aspect of the bill of exchange was recognized in the case
of Bom ley v. Frazier, 1 Stra. 441; the court there said, "the design of the law of
merchants in distinguishing these from all other contracts, by making them assign-
able, was for the convenience of commerce, that they might pass from hand to hand
in the way of trade, in the same manner as if they were specie."
170 THE LAW MERCHANT
settled that it was not an absolute payment, unless the creditor
chose to take it as such. It operated as a payment only if it was
met at maturity;1 and this is still the law.2 But the root of the
difference between the English and the continental developments
was present ; and if we look back at the law from the point of
view of the present day we can clearly see its beginnings.
Similarly the principles which underlie the various elements
which go to make up the idea of negotiability had not been as yet
clearly worked out. These various elements were in many cases
justified by a reference to the custom of the merchants without
being explained. But the underlying principles were often very
near to the mind of the judges, and only awaited a clear statement.
We shall now see that the task of making this statement in the
following century, was materially helped by the somewhat peculiar
history of the recognition of the negotiable character of the pro-
missory note.
(3) The promissory note?
In England, as abroad, the development of the negotiable
character of the bill of exchange reacted upon the legal position
of the note, or bill obligatory, payable to bearer.4 We have seen
that the common law, in the sixteenth and early part of the
seventeenth centuries, did not recognize the assignability which
these instruments possessed according to the customs prevailing
amongst the merchants.5 But in the latter part of the seventeenth
century many of these mercantile customs had become part of the
common law.6 The assignability of bills of exchange payable to
order was fully recognized ; 7 and many of the other rules relating
to them were so contrary to the ordinary principles of the common
law, that they could only be justified by a reference to mercantile
custom. Could not mercantile custom do for these notes what it
had done for the bill of exchange ?
Cases decided in the latter part of the seventeenth century
show that the lawyers were inclined to answer this question in the
1 Ward v. Evans (1702) 2 Ld. Raym. 928, this was ruled as to notes ; Holt, C.J.
said, " I am of opinion and always was (notwithstanding the noise and cry that it is
the use of Lombard Street, as if the contrary opinion would blow up Lombard Street)
that the acceptance of such a note is not actual payment . . . when such a note is
given in payment, it is always intended to be taken under this condition, to be pay-
ment if the money be paid thereon in convenient time"; in Hill v. Lewis (1709)
Holt, C.J., seems to lay down the same rule as to bills of exchange, though the case
concerned notes.
2 Street, op. cit. ii 389-391 ; of course it is otherwise if the instrument is accepted
in full discharge, Vernon v. Boverie (1683) 2 Shower 296.
3 On this topic see generally Cranch, Promissory Notes before and after Lord
Holt, Essays A.A.L.H. iii 72-94; Street, op. cit. ii 363-372, 383-392.
4 Above 125-126. 8 Above 150-151.
"Above 160-161. 7 Above 163-164.
THE ENGLISH DEVELOPMENT 171
affirmative.1 Indeed it is clear, as Lord Mansfield once com-
plained,2 that they did not distinguish between the inland bill and
the promissory note. Both are often called bills of exchange in
the pleadings 3 and in the reports ; 4 and the bill introduced into the
House of Lords to make bills of debt transferable, appears to have
taken the view that inland bills of exchange were governed by
the same rules as bills of debt, since it proposed to make them
transferable like foreign bills of exchange.5 In one important
respect, indeed, they closely resembled one another, and differed
from the outland bill. Upon neither was a protest necessary as
a condition of recovery against the drawer, till an Act passed in
1698 required a protest in the event of the non-payment of an
inland bill of exchange.6 In fact, it was not till Holt's campaign
against promissory notes, and the passing of the statute of 1704,
that the distinction was clearly drawn.7 This being so, we are not
surprised to find that the development of the law relating to pro-
missory notes is very closely connected with the development of the
law relating to bills of exchange. Thus a note payable to X or
order was treated as assignable by indorsement and delivery, while
a note payable to X or bearer was, after some hesitation,8 treated
like a bill to bearer, as not assignable.9
1 Shelden v. Hentley (1680) 2 Shower, 161 — a bearer allowed to sue on a note
under seal promising to pay the bearer who delivered the note ; Williams v. Williams
(1692) Carth. 269 ; S.C. 3 Salk. 68 sub nomine William v. Field ; Hawkins v. Cardy
(1699) Carth. 466, 1 Ld. Raym. 360 ; in the latter report the document is errone-
ously called a bill of exchange ; for an account of all these cases see Cranch, op. cit.
83-87.
2 Grant v. Vaughan (1764) 3 Burr, at p. 1525 — " Upon looking into the reports of
the cases on this head, in the times of King William the Third and Queen Anne, it
is difficult to discover by them, when the question arises upon a bill and when upon
a note : for the reporters do not express themselves with sufficient precision, but use
the words ■ note ' and ' bill ' promiscuously."
3 See e.g. Brownlow, Declarations (3rd ed.) 266-267 — " Whereas also there is,
and from the time of the contrary whereof the memory of man is not extant there
hath been such a custome within the kingdome of the Lord the king now of Eng-
land betweene English merchants or forrainers and their factors or servants, used
and approved, that if any merchant or merchants aforesaid, or their factors or ser-
vants, being in parts beyond sea, without the aforesaid kingdom of England, should
deliver to any person, in the same parts beyond sea being, any sum of moneyes to
be paid by any person in the same kingdome of England being by bill or note of
exchange thereof made, [and such person] should so accept and subscribe, from the
whole time aforesaid, [he] was chargeable and hath been accustomed to be charge-
able to pay the said sum of money to such person as by the same bill or note of
Exchange should be limited and expressed to be paid."
4 Hawkins v. Cardy (1699) 1 Ld. Raym. 360 ; Cranch, op. cit. 87 ; Street, op. cit.
H369.
5 Above 151 n. 1 ; Hist. MSS. Com. 8th Rep. 137.
6 Brough v. Parkins (1704) 2 Ld. Raym. 992 ; 9, 10 William III. c. 17 ; the statute
was defective in that it did not provide for a protest in case of non-acceptance ; this
was remedied by 3, 4 Anne, c. g, § 4.
7 Below 172-173. 8 Shelden v. Hentley (16S1) 2 Shower, 161.
9 Horton v. Coggs (1692) 3 Lev. 299 — "After a verdict for the plaintiff it was
moved in arrest of judgment, that this custom to pay to the bearer was too general ;
for perhaps the goldsmith before notice by the bearer had paid it to Barlow himself
172 THE LAW MERCHANT
During the later years of the seventeenth century cases turning
upon these notes came with increasing frequency before the courts.
This was no doubt due to the growth of depositing money with the
goldsmiths, who at this period were beginning to do the business of
bankers.1 They issued these notes promising to pay the sum de-
posited, sometimes to a payee or bearer, sometimes to a payee or
order. In 1704 Holt, C.J. said that the merchants agreed that
they had been in use for some thirty years ; and that he remembered
when actions upon them first began to be brought.2 But we have
seen that in mercantile practice similar notes were much older.3
However, there is a sense in which Holt's statement is true ; their
use by the goldsmiths, and their appearance in courts of common
law, were not much older.4
Down to the year 1700 the history of these notes had been
uneventful. They were very generally confused with inland bills
of exchange ; and it seemed as if they would silently assume the
same negotiable character as these bills.5 But in that year, in the
case of Clerke v. Martin* Holt, C.J. decided that a note payable
to X or order was not a bill of exchange, and was therefore not ne-
gotiable. He said, " that this note could not be a bill of exchange,
that the maintaining of these actions upon such notes were innova-
tions upon rules of the common law ; and that it amounted to the
setting up a new sort of specialty, unknown to the common law,
and invented in Lombard Street, which attempted in these matters
of bills of exchange to give laws to Westminster Hall. That the
continuing to declare upon these notes upon the custom of merchants
(which at the Bar was said to be the truth of the case). And of that opinion after
divers motions were Pollexfen, Powell, and Rokesby . . . though upon the trial of
the cause before Pollexfen at the Guildhall he then held the action well lay, this
matter having been objected at the said trial " ; Nicholson v. Sedgwick (1698) 1 Ld.
Raym. 180 ; but, according to the report of Nicholson v. Sedgwick, in 3 Salk. 67, it
was admitted that a note payable to order was negotiable ; and the same decision was
come to in Carter v. Palmer (1701) 12 Mod. 380, Holt doubting ; but it would seem
from Crawley v. Crowther (1702) 2 Freeman, Cases in Chy., at p. 258, that the com-
mon law view as to a bearer instrument was not followed in the court of Chancery ;
see above 164 n. 5, 165.
1 Below 185-186.
2 Buller v. Crips, 6 Mod. 29, 30 — " At another day, Holt, C.J. declared that . . . two
of the most famous merchants in London . . . had told him, it was very frequent with
them to make such notes, and that they looked upon them as bills of exchange, and
that they had been used for a matter of thirty years, and that not only notes but bonds
for money were transferred frequently, and indorsed as bills 0/ exchange."
3 Above 147-150.
4 Dudley North was away from England between 1661 and 1680; his brother tells
us, Lives of the Norths, ii 174, that, " He found divers usages in London very different
from what had been practised in his time there ... as first touching their running
cash, which, by almost all sorts of merchants, was slid into goldsmiths' hands ; and
they themselves paid and received only by bills ; as if all their dealings were in banco.
He counted this a foolish lazy method, and obnoxious to great accidents ; and he never
could bring himself wholly to comply with it."
5 See the cases cited above 171 nn. 1 and 4. 62 Ld. Raym. 757.
THE ENGLISH DEVELOPMENT 173
proceeded from obstinacy and opinionativeness, since he had always
expressed his opinion against them, and since there was so easy a
method, as to declare upon a general indebitatus assumpsit for
money lent" This case, as Holt himself admitted, caused a con-
siderable outcry in the mercantile world.1 But the decision was
upheld in three subsequent cases ; 2 and the merchants were obliged
to get an Act passed to reverse them.3
The Act in substance provides that all notes in writing, made
and signed by any person, whereby he promises to pay to any other
person or his order or to any person or bearer, shall be assignable
and indorsable over in the same manner and with the same legal
effect as if they were inland bills of exchange4 This was inter-
preted to mean that all such notes, whether payable to A simply, or
to A or order, to A or bearer, were made negotiable.5
Holt's treatment of these promissory notes, and the reversal of
his views by statute, raise two interesting questions. Firstly, was
there any justification for his views ? and secondly, what has been
the effect of the statute upon the law as to negotiable instruments ?
(i) Distinguished lawyers of the eighteenth and nineteenth
centuries,6 and legal historians of our own days,7 have generally
maintained that Holt's views were merely wrong-headed ; that
they were historically false, and wholly opposed to the current of
authority in his own time There is much to be said for this
view. Firstly, from an early period notes payable to bearer were
recognized abroad, and possibly in England, as assignable by
mercantile custom. They were certainly known to the English
merchants from the sixteenth century onwards.8 Secondly, there
are one or two decisions which recognized the existing mercantile
custom, and treated these notes as being on precisely the same
1 Buller v. Crips (1704) 6 Mod. at p. 30.
2 Potter v. Pearson, 2 Ld. Raym. 759 ; Buller v. Crips, 6 Mod. 29 ; Cutting v.
Williams, 7 Mod. 155 ; though it was not followed in the Chancery, above 171 n. 9.
'3, 4 Anne c. 9; the bill was presented 27 Jan., 1703, Commons' Journals xiv.
312 ; it was committed Feb. 12. ibid 335, and reached its third reading Feb. 2, 1704,
ibid 508 ; in the Lords it was appointed to be read a second time Feb. 8, 1704, and
Holt, C.J., was ordered to attend, Lords' Journals xvi. 653 ; probably he was respon-
sible for the additions made by the Lords, which in substance correspond to §§ 5, 7,
and 9 of the Act ; these amendments were agreed to by the Lords on Feb. 15, ibid
664 ; the Commons accepted them and made further amendments on Feb. 22, Commons'
Journals xiv 546, 674, which the Lords agreed to on the 26th, ibid 676.
'Burchell v. Slocock (1728) 2 Ld. Raym. 1545; but see Wain v. Bailey (1839)
10 Ad. and E. 616 where it was held that a plaintiff could recover on a lost note payable
to himself simply ; it has been assumed that this means that such notes were not
negotiable see Thairlwall v. G.N.R. [1910] 2 K.B. at p. 519 ; but this seems contrary to
the Act of Anne and the decision of Burchell v. Slocock ; but the point now has only an
academic interest owing to the provisions of the Bills of Exchange Act, 1882, above
156 n. 5.
• Grant v. Vaughan (1764) 1 W. Black at p. 487, per Ld. Mansfield, C.J. ; Good-
win v. Robarts (1875) L.R. 10 Ex. at p. 349, per Cockburn, C.J.
7 Cranch, op. cit 89-93 J Street, op. cit ii. 386. 8 Above 116, 147-150.
174 THE LAW MERCHANT
footing as inland bills of exchange.1 Thirdly, there is certainly
one case in which Holt himself recognized the negotiability of bank
bills.2 At the same time it is generally admitted that it is chiefly
to Holt's decisions that we must look for the beginnings of the
modern law as to negotiable instruments.3 Why then should a
man who was quite alive to the importance of commercial law,
who by his decisions did much to settle the principles of many
branches of that law, have gone out of his way to give decisions
which were both bad in law, and injurious to the interests of the
merchants ?
It seems to me that Holt's decisions rested upon two chief
grounds. In the first place, he had perceived, what most of his
brother lawyers had not perceived, that there was a difference
between an inland bill of exchange and a promissory note.4 It
may be that the statute of 1698, which required a protest in case
of the non-payment by the acceptor of an inland bill of exchange,
had made the difference clearer.5 But, whether this be so or not,
it is clear that Holt considered that assignability was the peculiar
property of the bill of exchange annexed to it by law ; that these
notes were not bills of exchange ; and that this was a mere attempt
on the part of the "goldsmiths in Lombard Street ... to make
a law to bind all those that did deal with them." 6 He pointed
out that the same object could be substantially effected by a bill
of exchange drawn between two persons. In Buller v. Crips he
said : 7 " Indeed I agree a bill of exchange may be made between
two persons without a third ; and if there be such a necessity of
dealing that way, why do not dealers use that way which is legal ?
. . . as, if A has money to lodge in B's hands, and would have a
negotiable note for it, it is only saying thus : ' Mr. B. pay me, or
1 Above 171.
2 (1698) Anon. 1 Salk. 126 ; S.C. 1 Ld. Raym. 738 ; I think it probable that the
bank notes or bills in this case were either notes drawn payable to order in the form of
bills of exchange, which Holt admitted to be negotiable ; or possibly they were bank
of England bills ; 5, 6 William and Mary, c. 20, § 28, had provided for the issue of
Bills by the Bank which could be assigned indefinitely by indorsement and delivery,
and Holt would no doubt have regarded these bills as being in the same position
as bills of exchange ; it was the ordinary notes or bills of the goldsmiths, which
merely acknowledged the receipt of money and promised to pay it, which were hit by
his decisions ; see Buller v. Crips (1704) 6 Mod. 29.
3 " Though radically reactionary in dealing with promissory notes, in other respects
he displayed much learning and judgment in deciding rights arising out of commercial
transactions, and the law of bills is greatly indebted to him," Street, op. cit. ii 378 ; cp.
Smith's Mercantile Law (tith ed.), Introd. lxxxii, n. ; and see vol. vi 519-522.
4 Compare his views as to the restricted competency of Indebitatus Assumpsit,
which arose from his perception of the difference between contract and quasi-contract,
above 90-91.
8 Above 171 ; that Holt was a good deal interested in this branch of the law can
be seen from the amendments made by the House of Lords to the Act of 3, 4, Anne,
c. 9, which were probably suggested by him ; above 173 n. 3.
6 Buller v. Crips (1704) 6 Mod. 29. 7 6 Mod. at p. 30.
THE ENGLISH DEVELOPMENT 175
order, so much money value to yourself ; and signing this, and B
accepting it : or he may take the common note and say thus : ' for
value received pay me (or indorsee) so much ' ; and good." The
outcry of the merchants he considered to be mere " opinionative-
ness " seeing that they could do what they wanted by a slight
variation in the form of their instruments.1 In the second place,
Holt considered that a bill of exchange was a specialty ; 2 that no
set of men could give to what was a simple contract the character-
istics of a specialty ; and that the attempt to do so, if acquiesced
in, would mean that " Lombard Street would give the laws to
Westminster Hall." 3 The merchants had, as we have seen, told
him that not only notes but "bonds for money" were treated by
them as bills of exchange ; 4 and there is some evidence that they
considered that a policy of insurance, when indorsed and transferred,
"thereby became as good as a bill of exchange is."5 His view,
therefore, was that ignorant laymen, without any real justification,
were attempting to upset the true legal principle, which he had
discovered, that the promissory note was a contract of a very
different nature from the bill of exchange. They were persisting
in their view, although they could have effected all their purposes
by means of a bill of exchange Such opposition aroused both his
personal and his professional pride, and fully accounts for the
temper which he displayed on this occasion.
We have seen that Holt's view that the bill of exchange was
a specialty (though held by many common lawyers) was eventu-
ally adjudged to be erroneous.6 But it seems to me that there
was a good deal to be said in favour of the other ground upon
which he rested his decision. There is no doubt that a promis-
sory note is an instrument of a different nature from a bill of
exchange. These promissory notes were of comparatively recent
introduction into the common law. It is true that they had been
long familiar to the merchants. But it would seem that they had
only come into extensive use within the last thirty years ; ' and
they had assumed their negotiable characteristics in the common
law courts under cover of a false analogy to the inland bill of
exchange. It followed that, when the falsity of that analogy
had been demonstrated, their supposed negotiable character dis-
appeared.
There was technical force in this argument — especially in the
seventeenth century. Its fallacy lay in the assumption that even
the most correct technical reasoning could stop the development
1 Clerke v. Martin (1702) 1 Ld. Raym. at p. 758. 2 Above 168.
3 Clerke v. Martin (1702) 1 Ld. Raym. at p. 758. 4 Above 172 n. 2.
5 See Davenant v. Midy (1695-1696) House of Lords, MSS. (N.S.) ii 196 no. 1009.
"Above 168. 7 Above 172.
176 THE LAW MERCHANT
of the new machinery rendered necessary by the new needs of an
expanding trade. On the contrary, it was clear from the history
of the bill of exchange that the law must adapt its technical rules
to that machinery. But, once that adaptation had been made,
Holt considered that the law had gone far enough. One form of
negotiable instrument should suffice. Even in the nineteenth
century substantially similar views have been held by dis-
tinguished judges.1 At the beginning of the eighteenth century
the Legislature was obliged to intervene to correct this error : in
the nineteenth and twentieth centuries the courts themselves have
recognized its fallacy, and corrected it.2
(2) I have already indicated the broad result of the statute —
Holt's judgments were reversed, and promissory notes were made
negotiable. This episode taught the courts that they could not
wholly ignore approved mercantile custom ; that they must adapt
their rules to such customs ; that in fact there were cases in which
" Lombard Street must be allowed to give laws to Westminster
Hall." And the eighteenth century was to show that the courts
had learned that lesson. It was a salutary and a necessary
lesson ; and, if it had not been learned, it is difficult to see how a
non-mercantile set of tribunals could have made commercial law
for the greatest commercial nation of modern times. Further, it
had a beneficial result on the development of the law of negoti-
able instruments. Notes to bearer were declared to be negotiable
by the statute ; and the case of Grant v. Vaughan 3 shows that
the courts were assisted in coming to the conclusion that a bill to
bearer was negotiable, by a chain of reasoning (historically some-
what fallacious) based upon this statute. We have seen that it
was not till the independent rights of the bearer were recognized,
that the most essential of all the elements of negotiability — the
absolute title of the bona fide holder for value — could clearly
emerge.4
It is not till the following period that this and other principles
underlying the law as to negotiable instruments were clearly
ascertained. In this period a good start had been made ; but it
was only a start. The united efforts of several generations both
of merchants and lawyers were needed before the common law
attained an adequate body of doctrine upon this, and upon many
other branches of commercial law.
1 Crouch v. Credit Foncier (1873) L.R. 8 Q.B. at p. 386, /><;>• Blackburn, J.
2 Goodwin v. Robarts (1875) L.R. 10 Ex. 337 ; Bechuanaland Exploration Co.
v. London Trading Bank [1898] 2 Q.B. 658; Edelstein v. Schuler [1902] 2 K.B.
144.
s(i764) 3 Burr. 1516 ; see especially the judgment of Wilmot, J., at pp. 1527-
1528.
4 Above 165-166.
BANKING 177
We must now turn to the history of the closely allied topic of
Banking.
§ 3. Banking
It was at one time thought that the earliest bank known to
modern history was the bank of Venice, and that it was founded
about the year 1170 to finance a state debt But this opinion
has been definitely disproved by the researches of Lattes and
Ferrara.1 They show that it was the catnpsores, or money-
changers, who were the earliest bankers ; and that the same set
of economic causes which gave rise to the bill of exchange, gave
rise also to the institution of banking.2
We have seen that money was entrusted to these catnpsores for
purposes of transmission, and that, by means of the machinery of
the bill of exchange, both the risks of transport 3 and the risk of
receiving in payment defective or counterfeit coins were avoided.4
It was not long before their business extended itself in different
directions. On the one hand, a merchant who had begun by en-
trusting a particular sum to a money-changer for purposes of
transmission in a particular transaction, found it convenient to
keep with him a sum on which he could draw whenever he needed
to transmit money ; and others, besides merchants, found it con-
venient to deposit money with such a person for safe custody.
On the other hand, the money-changer was only too glad to get
this money into his hands, and was willing to pay something to
get it. He could lend it at remunerative rates to needy princes
or to merchants. Thus the Italian money-changers gradually
replaced the Jews as the financiers of Europe.5 The Caorsini,
for instance, were the Pope's collectors ; and they made large
profits by lending the sums in their hands to needy borrowers.6
The English kings were large borrowers from various Italian
houses;" and Edward III., by his refusal to repay the money
*For an account of their work see C. F. Dunbar, Economic Essays 143 seqq.
* Above 128-130. 3 Ibid.
*" The notion of its being a prime business of a bank to give good coin has
passed out of men's memories ; but wherever it is felt there is no want of business
more keen and urgent," Bagehot, Lombard Street, 81. The establishment of some
state banks, eg. Venice and Amsterdam, was caused primarily by the fact that this
business was not satisfactorily done by the private bankers, below 180-181.
s The Italian bankers in England and their loans to Edward I. and Edward II.,
Historical Essays (edited by T. F. Tout and J. Tait), 137-167; see ibid pp. 143-153
for instances of loans to Edward I. on the security of the customs.
' Mat. Par., Chron. Mai. (R.S.) iii. 331-332, s.a. 1235 " Eodemque anno, episco-
pus Londoniensis Rogerus . . . cum intellexisset hos Caursinos usuras sine erube-
scentia palam frequentare vitamque spurcissimam deducere, viros religiosos varus
iniuriis fatigare, pecuniamque argumentose coacervare, et multos iuga eorum coactos
subire, commotus est et iratus " ; he excommunicated them, but they had no difficulty
in getting protection from their employer the Pope,
7 Above n. 5.
VOL. VIII.— 12
178 THE LAW MERCHANT
which he had thus borrowed, ruined the Peruzzi and the Bardi of
Florence.1
This development had taken place in Venice, and probably
also in the other commercial cities in Italy, by the first half of the
fourteenth century. " It is tolerably clear," says Dunbar,2 "that
private banking in Venice began as an adjunct of the business of
the catnpsores or dealers in foreign moneys. In a city having a
great and varied trade with many countries, these dealers neces-
sarily held an important place. ... As early as 1270 it was
deemed necessary to require them to give security to the govern-
ment as the condition of carrying on their business, but it is not
shown that they were then receiving deposits. In an Act of
September 24, 1318, however, entitled ' Bancherii scriptae dent
plegiarias consulibus,' the receipt of deposits by the campsores is
recognized as an existing practice, and provision is made for
better security for the benefit of the depositors. Whether the
title of this Act is contemporary or not, its text shows that some-
where between 1270 and 13 18 the money-changers of Venice
were becoming bankers, by a method similar to that by which the
same class of men at Amsterdam a couple of centuries later, and
later still the London goldsmiths, became bankers. More than
once in the next half century, provision was made for some public
oversight of the campsores, and in the Acts the term bancherius
and bancus* became frequent in what seems to be a technical
sense."
Early in the fourteenth century, therefore, banks were being
used to exchange, to remit, and to deposit money ; and the bankers
were driving a thriving trade by investing the money which thus
came into their hands. It is clear that their operations tended
to encourage and develop trade. Not only did they obviate the
risks of transport, or payment in bad coin, and of the custody of
a large amount of precious metals : they also helped mercantile
operations in two other very important ways. (1) In the con-
duct of trade they immensely facilitated the adjustment of accounts.
1 A History of Banking in all Nations iii 217.
2 Economic Essays, 145-146.
3 As to the derivation of the word see Oxford Eng. Diet, sub voc. Bank. It is
there pointed out that it comes from banco or banco. = a bench ; this term was
applied to a tradesman's counter or money-changer's table; hence it came to mean a
money shop or bank, and in this sense passed from Italy to other countries. In
Italy the word Monte was sometimes used in the sense of bank ; and some have
thought that "bank " is a German rendering of Monte ; but that is a mistake, as the
German bank always = bench, and not a mound or heap; the fact is that " in the
development of banking the banco of the money-changer and monte or joint stock
capital were combined, and the term ' bank ' applied in England to both " ; we find
" bank " used in its modern sense in England at the end of the fifteenth and the
beginning of the sixteenth century.
BANKING 179
As the Venetian senator Contarini said in 1 584,1 "Buyer and
seller are satisfied in a moment while the pen moves over the
page : whereas a day would not be enough to complete the con-
tract for a great mass of merchandize by counting a great number of
coins." We have seen that at the great fairs the bankers adjusted
the accounts of the chief trading centres of Europe.*2 In the
sixteenth century it was at the fairs of Lyons, the Spanish fairs,
and the fairs of Genoa, that this system was gradually perfected ;
and it was this adjustment of accounts which was the most
important function of these fairs.3 (2) By lending the funds at
their disposal, the bankers could finance profitable undertakings.1
And in time they found that they could use for this purpose not
only the money actually deposited with them, but also their
credit. A promise by a banker of good repute to pay on demand
was as good as money and was taken as money. Thus in 1584
Contarini said that a banker could accommodate his friends,
without payment of money, merely by writing a brief entry of
credit ; and that he could " satisfy his own desires for fine
furniture or jewels by merely writing two lines in his books." 5
Thus, to use modern terms, the Italian banks had become not
only banks of deposit, but also banks of issue.
A direct result of this function was the growth of the political
importance of the bank. The state soon found that its business
was one of the undertakings which a bank would finance in return
for privileges which it could give.6 A loan to the state and a
state bank, in many different places and at many different times,
have been related as cause and effect The bank, established and
guaranteed by the state, could perform a function somewhat
analogous to that attributed to the Jew in mediaeval England — it
could, like a sponge, suck up the money of the subject, and be
induced to squeeze it into the Exchequer by the payment of
interest and other privileges. It was soon seen that this applica-
tion of the institution of banking to political uses was capable of
extension to religious or charitable uses. The idea of forming a
fund to finance the state gave rise to the idea of forming a similar
1 Cited by Dunbar, Economic Essays 148. a Above 129-130.
3Huvelin, Le Droit des Marches et des Foires, 502-574 ; Professor Huvelin tells
us that after about the year 1570 this business was chiefly done at the fairs of Genoa
— " Davanzati nous apprend que dans ces foires il ne s'effectuait pas de transactions
sur des marchandises. II y venait seulement cinquante ou soixante banquiers, chacun
avec un petit carnet, pour regulariser les affaires de change de presque toute
PEurope."
* Dunbar, Economic Essays 149, says : " Trade with the Levant, the western
trade, corn, exchange, the accommodation of friends, the purchase of land and houses
— these were the typical classes of a banker's investments in that age."
s Ibid 149-150.
* Thus Ferrara calculated that at Venice between 1457 and 1507 the banks had
lent sums amounting to 5,000,000 lire to the state, ibid 148-149.
180 THE LAW MERCHANT
fund — a mons pietalis — to finance the poor, and to deliver them
from the clutches of the usurer.
It is clear, therefore, that in Italy in the sixteenth century
banks had come to play a very important part in the economic
life of the state. Their utility to the state itself and to all classes
of persons in the state was obvious. But both their importance
and their utility made some measure of state control necessary,
both in the interests of its subjects and of the state itself. The
history of banking at Venice shows that it was very necessary to
legislate in the interests of the bank's customers. Thus it was
found necessary to prohibit the bankers from making certain kinds
of investment,1 to appoint inspectors of banks,2 to prescribe the
times at which bankers must attend to make payments to their
customers,3 to make it an offence to refuse to pay cash on demand.4
But these measures were not very successful. In I 584 it was said
that of the 103 banks which had started business in Venice, 96
had come to a bad end.5 The remedy was found in creating a
State Bank of Venice in 1587 to receive cash deposits.6 With
these deposits there was to be no trading. They were retained in
specie by the bank ; and the expenses of the bank were met by a
duty on imports. All merchants were practically compelled to
keep an account at the bank, by the provision of a law, passed in
1 593, that all bills of exchange drawn at or upon Venice must be
paid by a transfer in bank.7 The accounts of the bank were kept
in bank money, which was 20 per cent, more valuable than the
current coin.8 This bank money, as Adam Smith explained in
reference to the similar bank of Amsterdam, was always more
highly prized, because it " represented money exactly according
to the standard of the mint," because it was secure from fire,
robbery, and other accidents, and because it was easily transfer-
able.9 Thus the bank of Venice provided for the transmission of
1 Dunbar, Economic Essays 148. 2 Ibid 152. 3 Ibid 147.
4 Ibid 150, 151; for regulations at Genoa in the fifteenth century see Leges
Genvenses, Mon. Hist. Pat. xviii, Cols. 544, 545, 656-658.
5 Dunbar, Economic Essays 146.
6 A public bank was set up in 1584, the immediate cause being the failure of the
house of Pisani and Tiepolo for 500,000 ducats ; but the Act was repealed, and the
bank was not revived till 1587, ibid 152, 153.
7 Ibid 153-155 ; thus, as Dunbar says, ibid 145, the bank was founded to take
over, under the guarantee of public authority, some of the functions which for over
270 years had been performed by the private bankers.
8 Ibid 161-162.
9 The classical account of the working of banks of this kind is to be found in
Adam Smith's account of the bank of Amsterdam, Wealth of Nations, Bk. iv, chap,
iii. He says : " The bank received both foreign coin, and the light and worn coin
of the country, at its real intrinsic value in the good standard money of the country,
deducting only so much as was necessary for defraying the expense of the coinage,
and the other necessary expense of management. For the value which remained
after this small deduction was made, it gave a credit in its books. This credit was
BANKING 181
money, for the maintenance of a supply of good money, and for its
safe custody. But it did nothing else. It took over certain
functions only of the older private banks. The bank of Amsterdam
was a bank of a similar character, and it was called into existence
by similar causes — the difficulty of regulating the private bankers,1
and of maintaining a standard medium of exchange.2 Similar
banks were established for similar reasons at Middleburg, Rotter-
dam,3 Frankfort, and Hamburg.4
In the interests of its subjects, therefore, the state had found
itself obliged to take over the control of the bank. But the state
itself was sometimes even more directly interested in its proper
management. It might be itself a debtor to the bank, which had
for a consideration lent it money, or taken over an existing debt.5
Thus the bank of St. George at Genoa took over the state debt,
and the state as security ceded its governmental powers over some
of its territory.6 The bank thus developed from a mere commercial
association into a political power, in a manner which reminds us
of the development of our own East India Company. Similarly,
a second bank was established at Venice in 1619, which took over
the state's liabilities to its creditors, and was in return authorized
to do banking business of a kind similar to that of the earlier bank
of Venice, with which it amalgamated in 1637."
Thus, at the end of the sixteenth century, the most important
banks in Europe were state or public banks. The maladministra-
tion of the private banks, and the greater security offered by these
public banks, had, so Marquardus tells us, almost driven the
private banks out of the field.8 The private bankers, whose
called bank money, which, as it represented money exactly according to the standard
of the mint, was always of the same real value and intrinsically worth more than
current money."
1 A History of Banking in all Nations iv 193-195, ic,6-ig8.
2 There was no national currency- ; a decree of the Earl of Leicester, 1586,
mentions 130 different kinds of silver coins and 370 kinds of gold in circulation ; a
manual for changers issued on the basis of that decree fixed the prices for more than
500 kinds of gold and 370 kinds of silver coins, ibid 192 ; for the fidelity with which
the bnnk of Amsterdam kept its deposits intact, see below 188 n. 7.
3 A History of Banking in all Nations iv 201.
4 Marquardus, De lure Mercatorum et Commerciorum ii 12-14.
'Above 179; see a History of Banking in all Nations iii 214 for some account
of the loans of the Florentine bankers to the state.
6 Ibid 154-155. 7 Dunbar, Economc Essays 156-158.
8 Marquardus, op. cit. ii 12, 18-20 ; he says the private banks " Paulatim deficere
coeperunt. Cui malo administratores eorum subvenire laborantes permiserunt aliis,
maxime fideiussoiibus, quibus quodammodo obstricti erant, txsolvere in banco
pecunias, quas in eo non deposuerant. Inde factum, ut ruinam invenirent, unde
celebritatem sperabant ; iis, scilicet, qui pecunias acceperant, decoquentibus, et
nemine amplius apud eos deponere volente. Hinc frequentissimaj decoctiones
bancheriorum Genuae, Neapoli, Messanae, Florentiae, etc., acciderunt . . . Unde
factum, ut usus privatorum bancorum fere in desuetudinem abiret . . . Viget tamen
adhuc publica banca, magna cum negociatorum utilitate."
182 THE LAW MERCHANT
business was done at the great fairs, were almost the only ones
who had survived.1
At this period a bank, and the deposit business of a bank,
could be described in terms which a modern lawyer might use.
"By banking," says Marquardus,2 "is signified a certain kind of
dealing in money, approved by the state, according to which
money is deposited with bankers for the benefit of the depositor,
so that the ownership of the money passes to them, and so that
the creditors (i.e. depositors) get security, and the debtors (i.e. the
bankers) get advantage. This condition is however implied, that
the depositor may whenever he pleases demand the money de-
posited ; and this condition must always be understood to apply
to all such deposits." The mutual advantage of a bank to
customer and banker is explained to consist in the fact that the
depositor is relieved of the anxiety of seeing to the safe custody
of the money, while the banker can make a profit out of the money
so paid to him ; 3 and the universal prevalence of the custom
among merchants in Italy and Germany of effecting payments by
means of entries in bankers' books is attested.4
Malynes described the public bank and its working as he
knew it on the Continent ; 5 and his account is probably the first
literary statement in English of a phenomenon familiar enough in
mercantile practice. He begins by defining a bank in much the
same way as Marquardus — it is "a collection of all the ready
money of some kingdom, commonwealth, or province, as also of a
particular city or town, into the hands of some persons licensed
and established thereunto by publick authority." c The bankers
1 Marquardus, op. cit. ii 12, ig : " Exceptis iis quae ... in feriis ex necessitate
retinentur " ; " competit autem hodie in feriis nomen bancheriorum illis mercatoribus,
qui non tantum suas pecunias in cambiorum negociationibus occupatas habent ; sed
qui etiam, finitis feriis bilanciam exhibent, secundum regulas et leges feriarum."
2 Ibid 12, 13 : " Et denotatur per bancum certum negociationis genus in pecuniis
consistens, publica auctoritate approbatum, quo pecuniae apud Bancherios ... in
securitatem Creditorum et utilitatem Debitorum numeranti deponuntur ita ut
dominium ad hos transeat . . . Hac tamen tacita conditione, ut quilibet deponens
ad libitum nummos depositos recipere possit. Quod absolute omni deposito inest."
3 Ibid 12, 16, 17 the advantages are: "ut deponentes custodia et periculo
subleventur ; depositarii, vero, qui pecunias illas maximam partem non patiuntur
esse vacuas, ... ex usu earum quas vel in merces vel in cambia imponunt, lucrum
sentiant."
4 " Consuetudo tamen et stylus mercantilis in Italia et Germania viget, ut quae-
libet promissio, facta in Banco, cedat loco solutionis ; quod eo magis procedit, quando
in libris illius, qui erat creditor, facta est mentio de tali promissione Bancherii,
referendo ilium in numerum debitorum, et talem promissionem scribendo loco solu-
tionis receptae a Creditore et factae a Debitore," ibid ii 14. 3.
8 Lex Mercatoria Bk. i chap. xx.
6 Cp. the definition of S. Lamb, Seasonable Observations humbly offered to his
Highness the Lord Protector (1659), Somers' Tracts vi at p. 457 — " A bank is a
certain number of men of estates and credit joined together in a joint stock, being, as
it were, the general cash keepers or treasurers of that place where they are settled,
letting out imaginary money at interest at 2 and J or 3L per cent, to tradesmen, or
BANKING 183
have their factors in all the great trading centres of Europe, and
keep account with every man whose money they have received.
By means of entries in the bankers' books, large sums of money
can easily be paid and received. They pay out money on demand,
and remit it to foreign countries for their customers by means of
bills of exchange. The money in their hands is employed in
many ways — in "dealing with great princes and potentates that
have need of money for the maintenance of their wars," in ingros-
sing commodities and in fixing rates of exchange for different
places. These rates were sometimes excessive, " wherefore the
city of Amsterdam (to countermine them) have in the year 1608
also erected a very great bank, for which the said city hath
undertaken to answer, whereby they are always stored with
money, as appeareth, that the same is plentifully to be had at
interest, at six and seven in the hundred by the year, and some at
five and under." We shall see that this possibility of getting
cheap money through a bank guaranteed by the state was one
of the reasons for the foundation of the Bank of England.1
It is not surprising to find that in England, from the latter part
of the sixteenth century, the advantages of establishing a public
bank, of the kind familiar on the Continent, was pressed upon the
Government. A proposal to establish banks "for the relief of
common necessity " was introduced into an abortive bill on the
subject of usury in 1 571.2 In or about 1 576 one Stephan Parrotte
proposed to establish a public bank;3 and in 1 581 Christopher
Hagenbuck and his partners, who were probably Italians, had put
before the Queen and Council a project for the establishment of
such a bank.'4 In 1622 Sir Robert Heath made a similar proposal;5
and in 16276 we hear of a suggestion for the "formation of a
national bank, or treasure permanent to be lent out at 5 per cent,
to enable merchants to traffic, gentlemen yeomen and husbandmen
to till their grounds, and artificers to work and trade " — the capital
stock to be raised by taxation. In 1636 Philip Burlamachi
proposed the establishment of a bank through which the payment
of all large sums should be made;7 and in 1641 Sir Balthasar
Gerbier suggested the establishment of banks which should
others . . ., and making payment thereof by assignation, and passing each man's
account from one to another with much facility and ease, and saving much trouble in
receiving and paying of money, besides many suits in law, and other losses and incon-
veniences, which do much hinder trade."
1 Below 189. 2 Tawney, Wilson on Usury 125, 159.
3 Tawney and Power, Tudor Economic Documents iii 370-377.
4S.P. Dom. 1581-1590, 31, cl. 73; the petition is in Italian; Bacon, in 1612,
mentions projects to establish a Bank of Exchange which should be able to lend
money to traders, Letters and Life (Ed. Spedding) iv 325.
SS.P. Dom. 1619-1623, 386, cxxx 28-32.
6 Ibid 1627-1628, 493-494, lxxxix 17.
7 Ibid 1636-1637, 73, cccxxix 34.
184 THE LAW MERCHANT
combine pawnbroking with banking business.1 In 1 66 1 Sir Gerbier
D'Ouvilly described the advantages of establishing a "Bank of
Exchange," 2 which was to have its own " bank money, " and power
to lend on real estate. In 1 673-1 674 one Thomas Newcome wrote
a pamphlet advocating the establishment of banks of credit, at
which all payments by and to the crown should be made. Those
receiving money in this way were to be able to assign the amount
credited to them by the bank ; and for debts payable by the king,
bills of credit should be issued, which the crown should receive in
payment of debts due to it, and should "pass under the name of
check or bank money." 3 The advantages of such an undertaking
were very clearly pointed out in a paper written by S. Lamb, a mer-
chant, in 1659, and entitled " Seasonable Observations." 4 In many
economic matters the Dutch were pointed to as an example at this
period ; and Lamb begins by showing how much their trade had
benefited by their public banks.5 He then pointed out that such
a bank in England would increase trade, as it would enable money
to be borrowed by industrious merchants at reasonable rates ; and
that this would tend to keep good men from failing.6 It would
guard against the risks of the transport of money, and the risks of
being paid in bad or depreciated money.7 It would provide an
easy method of paying debts by the simple process of entry in the
bank's books.8 He therefore proposed that such a bank should be
established, and that a society of merchants, to be chosen from the
various companies of merchants, should be appointed to manage it.9
Any one who wished was to be at liberty to deposit his money
there, and to have it again on demand.10 The bank was to have
the power of issuing paper money ; and all bills of exchange were
to be received and paid there.11 The expenses of management
were to be defrayed from the profits, and any surplus was to go in
augmentation of the bank's capital. There was to be a branch
to do a pawnbroking business on reasonable terms.12 In 1676 a
" Bank of Credit," which should lend money to merchants, was
proposed, and actually founded ; but it failed.13
'S.P. Dom. 1640-1641, 527, cccclxxviii 96.
2 Ibid 1661-1662, 78, xl 131; J. R. Scott, Joint Stock Companies i 274; and
for another project in 1665 see ibid i 281 ; cp. Petly, Political Arithmatick, Economic
Writings (Ed. Hull) i 265.
3S.P. Dom. 1673-1675, 186. 4Somers' Tracts vi 446-465.
5 Ranke, History of England in the Seventeenth Century (Eng. Tr.) v 77, says
that "the Dutch had been heard to say that, so long as England did not set up a
bank . . . Dutch commerce would keep ahead of English."
6Somers' Tracts vi 456; see S.P. Dom. 1665-1666, 184, cxliii 114 for alpamphlet
describing the advantages of creating an office of credit for the benefit of traders.
7 Somers' Tracts vi 457. 8 Ibid.
9 Ibid 459 ; the companies named are the East India, Turkey, Merchant
Adventurers, East Country, Muscovy, Greenland, and Guinea.
10 Ibid. ll Ibid. « Ibid 460.
13 J. R. Scott, Joint Stock Companies iii 202; and see S.P. Dom. 1676-1677, 72;
in 1676 an office for the discount of bills had been started, Scott, op. cit. i 293 ; and
BANKING 185
But, though no public bank was established, the exigencies of
trade, and the convenience of a bank as a place for the safe custody
of money, led to the growth of a system of private banking. This
business was not a definitely organized and a separate business in
Elizabeth's reign.1 It was not then definitely connected with the
goldsmiths,2 but rather with the scriveners3 and the clothing and
woollen trades.4 But it was eventually monopolized by the gold-
smiths. The nature of their trade compelled them to deal in the
precious metals ; and early in the seventeenth century they seem
to have begun the business of exchanging money.5 An attempt
was made to stop them from exercising the business of exchange in
1 627,' but it was ineffectual. Without ceasing to exercise either
of these two branches of their business,7 they added to it, possibly
before the middle of the seventeenth century,8 the business of receiv-
ing money for safe custody, and receiving the rents of gentlemen's
estates.9 On this money they allowed interest,10 and made large
fortunes by lending it to the government or to private persons.11
in the same year Yaranton proposed a bank " in each important trading centre based
on land security and dependent on a register of titles," Scott, op. cit. i. 293.
1 Tawney, Wilson on Usury 88 says, " it is not possible in the England of
Elizabeth ... to point to half a dozen members of a single craft as par excellence the
' bankers ' " — rather the business of money-lending was carried on by various traders
as subsidiary to their proper businesses ; as he roints out, even in the eighteenth century
county bankers combined banking with other kinds of business, ibid 91.
^"The country gentleman who fifty years later would have drawn on his
goldsmith, when he wants a loan of ,£200 in the sixteenth century writes to his draper,
and that though he is in touch with a goldsmith who has already made him advances,"
ibid 94-95, citing Hist. MSS. Com. MSS. of Lord Middleton 157.
3 21 James I. c. 19 § 2 subsect. 3 enumerates among persons who can be made
bankrupt those that " use the trade or profession of a scrivener, receiving other
men's monies or estates into his trust or custody"; and this is borne out by the
facts in Herbert v. Lowns (1627- 1628) 1 Ch. Rep. 22; for a good account of this side
of the scriveners' trade see Tawney, op. cit. 96-101.
4 In Scotland, famous banks are connected with the linen and corn trade,
Cunningham, History of Industry and Commerce ii 455.
5 In The Mystery of the New Fashioned Goldsmiths these are treated as their
legitimate occupations : " In my time their whole employment was to make and sell
plate, to buy forreign Coynes and Gold and Silver imported to melt and cull them, and
cause some to be coyned at the Mint, and with the rest to furnish the Refiners,
Platemakers, and Merchants, as they found the price of gold and silver to vary, and
as the Merchants had occasion for Forreign Coynes."
6 Tudor and Stuart Proclamations i no 15 12 ; for the history of the attempt of the
Government to control exchange business see Tawney, op. cit. 137-154.
7Pepys, Diary (ed. Wheatley) vi 323 (exchanging money); v 193 — "Thence
home, in my way had the opportunity I longed for, of seeing and saluting Mrs. Stokes
my little goldsmith's wife in Paternoster Row, and there bespoke some thing, a silver
chafing dish for warming plates " ; The Grasshopper in Lombard Street 124.
8 The case of Mayor of London v. Bennet (1630-1631) 1 Ch. Rep. 44-45, in which
the plaintiff got an injunction against actions to recover money from the City, which
the City had lent to James I. and Charles I., points to the existence of persons who
had money deposited with them which they were able to lend at interest; cp. J. R.
Scott, Joint Stock Companies i 238-239.
9 Mystery of the New Fashioned Goldsmiths; Pepys, Diary v 397 — he withdrew
£1000 from Stokes.
10 Ibid 253 (March 31, 1666) ; The Grasshopper in Lombard Street 132.
"Evelyn reports (June 11, 1696) that " Duncomb, not long since a mean gold-
smith, having made a purchase of the late Duke of Buckingham's estate at neere
186 THE LAW MERCHANT
This banking business became well established in the mercantile
world soon after the Restoration ; and the king, instead of dealing
as before with the city of London or with individual merchants for
a loan,1 applied to these goldsmiths or bankers.2 It gradually
became the custom for private persons to deposit their cash with
them ; and no doubt the way in which the bankers met their
liabilities, during the run upon them occasioned by the disastrous
Dutch war of 1667, helped to make the practice still more usual.3
Indeed, it possessed such obvious advantages that not even the
closing of the Exchequer in 1672 seriously affected it. The only
effect which it had was to impress, both upon the goldsmiths and
their customers, the idea that the less they had to do with the
government the better it was for them.4 "The public did not
trust their money with them unless they were certain that they
had nothing to do with the government." 5
The reason why no public bank was established till the last
years of the seventeenth century were thus chiefly political. A
public bank was suspected on political grounds by the government
itself, by the merchants, and by the public. It was suspected by
the government because it was thought with some reason that it
might, by the control of finance, get too much power in the state.
It was admitted, indeed, that banks answered well enough in a
republican state, like Holland or Venice ; but it was thought that
they were wholly incompatible with a monarchical form of govern-
ment.6 It was suspected by the merchants and the public because
^90,000 and reputed to have neere as much in cash," cited Grasshopper in Lombard
Street 121.
1 For instances of this practice see S.P. Dom. 1639, 276, ccccxxiii no. 20; ibid
1640, 31-32, 41, 142, 155 ; Sharpe, London and the Kingdom ii 127, 147, 152, 165.
a Clarendon, Continuation of Life (ed. 1843), 1166, 1167; for the king's depen-
dence in the early part of his reign on Alderman Backwell, see Pepys, Diary v 6-7.
3 Ibid Sept. 27, 1667 (cited Grasshopper in Lombard Street 126) : " Did mightily
wonder at the growth of the credit of bankers. . . . Upon this we had much
discourse, and I observed therein, to the honour of this Citty, that I have not heard
of one citizen of London broke in all this war, this plague, or this fire, and this
coming up of the enemy among us."
4 Before this date the merchants were shy of government business ; in 1661 Th.
Clutterbuck, writing to the Navy Commissioners, says " he has tried to negotiate the
exchange business desired with the English merchants there, but they wish not to have
to do with public monies, where if punctuality is not observed, no constraint can be
used," S.P. Dom. 1661-1662, 46, xxxix 102 ; ibid 58, xl 22.
s,Ranke, History of England in the Seventeenth Century (Eng. Tr.) v 77 ; cp.
Evelyn's Diary, Feb. 12, 1672.
6 This argument was produced by the Tories in 1694, see Macaulay, Hist, of
Eng. c. xx ; and it was an old one, see Cunningham, op. cit. ii 411 n. 2 ; as
Cunningham says, ibid 412, " The Bank of England proved itself to be compatible
with monarchy, only because the monarchy was now greatly limited by the provisions
of the constitution " ; even in Charles II. 's reign, the power which a bank might gain
was beginning to be seen ; the Court was extravagant, and the amount of the revenue
fell seriously short of the amounts expected, and so, as Shaw says, Beginnings of the
National Debt, 401-402, " The city of London and a small coterie of London Bankers
held the government of Charles in the hollow of their hands " ; cp. J. R. Scott, Joint
Stock Companies i 274-275.
BANKING 187
it was clear that any security which the state might give to such
a bank, was far less valuable under a monarchical form of govern-
ment, because it was at the mercy of the monarch's caprice.1
Charles J. in 1640 had seized the merchants' money which had
been deposited in the Tower for safe custody ;2 and Charles II. in
1672 closed the Exchequer, and suspended payment of his debts to
the bankers.3 The position was stated very clearly by Pepys in
a conversation which he reports with Sir Richard Ford.4 "The
unsafe condition of a bank under a Monarch, and the little safety
to a Monarch to have any ; or Corporation alone (as London in
answer to Amsterdam) to have so great a wealth or credit, it is,
that which makes it hard to have a Bank here. And as to the
former, he did tell us how it sticks in the memory of most merchants
how the late King [Charles L] (when by the war between Holland
and France and Spayne all the bullion of Spayne was brought
hither, one third of it to be coyned ; and indeed it was found
advantageous to the merchant to coyne most of it), was persuaded
in a strait by my lord Cottington to seize upon the money in the
Tower, which, though in a few days the merchants concerned did
prevail to get it released, yet the thing will never be forgot."
A public bank was also opposed on economic grounds. Some
merchants, one of whom was Malynes, did not wish to see such
a bank established, because they thought that it would engross
too much of the money of the state, and that the bank would use
it to further its own private interests.5 This view was brought
out very clearly in a tract of 1676 entitled "The Mystery of the
New Fashioned Goldsmiths or Bankers."6 In that tract the
goldsmiths or bankers are accused of buying up and sending good
money out of the kingdom, and of lending money at excessive
1 Lamb, Seasonable Observations (Somers' Tracts vi 461-462), meets the objection
that " in a monarchical government the supreme governor may seize or borrow the
money in bank," by suggesting that a hw be passed to make this impossible.
2 See S.P. Dom. 1640, 543-544, cccclxi 104.
3 For an account of these events see Macleod, The Theory and Practice of Bank-
ing i 433-442 ; as to the meaning of Charles II. *s closing of the Exchequer see W.A.
Shaw, The Beginnings of the National Debt 391 ; for petitions of various creditors of
the goldsmiths, who had been injured by the suspension of payments, see Hist. MSS.
Com. 9th Rep. App. pt. ii 121 no. 613 ; and for the measure of relief given see ibid no.
628 ; it would seem that in 1677 the interest promised by the king to the goldsmiths
was in arrear, S.P. Dom. 1676-1677, 537.
4 Diary v 404-405 (Aug. 17, 1666).
5 Lex Mercatoria, Bk. iii c. ix : " Some men of judgment have found my writing
to be invective . . . against bankers, wherein they are not mistaken ; for the use of
banks (unless they be countermined by other banks) are not to be suffered in any well
ordered commonwealth, as time will manifest more and more. The French king
Lewis the ninth, and Phillip the Faire did with great cause confiscate the bankers'
goods . . . Phillip de Valoys did the like, and indicted them as cozeners of the
commonwealth ; for it is found that in a short time, with 24 thousand sterling, they
had accumulated and gotten above two millions four hundred thousand pounds.7'
6 Printed in facsimile by J. B. Martin in The Grasshopper in Lombard Street
287-292.
188 THE LAW MERCHANT
rates of interest to necessitous persons and to the government.
" These and a hundred other practices they have used and do still
continue, in contempt of Law and Justice, whereof they are so
conscious to themselves, that most of them do once a year (at
least) sue out their general pardon, to avoid the penalty of those
wholsom laws made to prevent such frauds, oppressions, contempt
of government, and mischiefs to the publick as they are dayly
guilty of."
It was not until after the Revolution that a public bank,
similar to the public banks of the Continent, was established in
this country. In 1694 the Bank of England was established.1
It was originally, as Bagehot says, a "Whig finance company."2
The Ways and Means Act of 1694 3 provided that the subscribers
to a loan of £1,200,000 to the government should be incorpo-
rated under the title of the Governor and Company of the Bank
of England.4 The bank was to have the power of dealing in
bullion and bills, of issuing assignable notes, and of lending on
merchandise.5 But it could not trade with its own securities, or
buy or sell goods, wares, or merchandise.6 The bank, therefore,
did not follow the models of the banks of Venice or Amsterdam.
Those banks, at least in the first centuries of their existence,
actually kept in specie all the money deposited with them. Their
notes represented actual money in their possession.7 The Bank
of England, on the other hand, followed the system of banking
developed by the goldsmiths. 'It purported to give in its bills
the equivalent of what it had received, but it never pretended to
take the deposit for any other purpose than that of trading with
it. It never professed to make its issues square exactly with its
coin and bullion, though of course it made its liabilities square
with its assets, plus the capital of its shareholders, and in time,
plus the reserve also, i.e. its accumulated and undivided profits.
1 See generally Macaulay, History of England c. xx ; Thorold Rogers, The First
Nine Years of the Bank of England ; J. R. Scott, Joint Stock Companies iii 199-
242.
2 Lombard Street, 94. 3 5 William and Mary c. 20. * §§ 19 and 20.
6§§ 28, 29 ; as to these notes see above 174 n. 2 ; below 190-191.
6 § 27 ; the capital of the bank was enlarged and further privileges were conferred
on it by 8, 9 William III. c. 20.
7 Adam Smith, Wealth of Nations, Bk. iv c. iii : " The bank of Amsterdam pro-
fesses to lend out no part of what is deposited with it, but, for every guilder for which
it gives credit in its books, to keep in its repositories the value of a guilder, either in
money or bullion. ... In 1672, when the French king was at Utrecht, the bank of
Amsterdam paid so readily, as left no doubt of the fidelity with which it had observed
its engagements. Some of the pieces which were then brought from its repositories
appear to have been scorched with the fire which happened in the town house soon
after the bank was established " ; but, " when Holland was overrun by the French in
the early years of the great continental war, the whole of the treasure was gone. It
had been lent, in defiance of the fundamental law of the Bank's constitution, to the
Dutch East India Company," Thorold Rogers, First Nine Years of the Bank of Eng-
land 8.
BANKING 189
At first these profits were derived from the dividends it received
from Government, and from the gains it made out of the notes
which it put into circulation, in exchange for, or in addition to,
the cash which it took. It coined, in short, its own credit into
paper money." '
The services which the bank did the government in the early
days of its existence are matters of general history. It financed
the Whig government handsomely ; 2 and the time came when it
had its reward. Its position as the bank of the government gave
it a wholly unique status, not only in the nation, but also in the
civilized world.3 Its services to the commerce and industry of the
nation were no less conspicuous. Dr. Cunningham4 has pointed
out that the bank has conferred on the nation exactly those
benefits which Lamb had promised in 1659.5 It developed de-
posit banking. It therefore led to the increase of available
capital, and lowered the rate at which capital could be borrowed.
" From this time onwards it became a usual thing for careful men
to trade upon borrowed capital, since they found they could
habitually obtain the loan of it on easy terms. During the latter
part of the seventeenth century, England was hampered in every
way, both as to internal development, and commerce, and coloni-
zation by lack of capital ; and the banking system which was
inaugurated in 1696 had an enormous influence in remedying
these evils." 6
During the latter part of the seventeenth century, the growth
of banking begins to be reflected in the reports by one or two
cases, which put a legal interpretation upon some parts of the
machinery by which the bankers did their business. These few
cases, and the statutes which established and regulated the Bank
of England, are the beginning of the English law of banks and
banking.
The reports show us that the business of banking will
eventually add a new species to the two classes of negotiable
instruments then known to mercantile law. To the bill of
1 Thorold Rogers, op. cit. g.
2 Ranke, op. cit. v. 80 n. 1, cites a contemporary pamphlet which said truly that
" the Bank of England not only acts as an ordinary bank, but it must be viewed as a
great engine of State " ; as he says, " It was noticed directly how much a very general
and wider spread participation in the loans served to strengthen the order of things
brought in by the Revolution"; Macaulay hardly exaggerates when he says that
" the weight of the bank, which was constantly in the scale of the Whigs, almost
counterbalanced the weight of the Church, which was as constantly in the scale of the
Tories " ; cp. J. R. Scott, Joint Stock Companies iii 203-204, 209-210.
3 Bagehot, Lombard Street 97 ; Ranke, op. cit v. 79, describes it as an institu-
tion " which was destined to become at length the very heart of the business of
London, of England, perhaps of the world."
4 Op. cit. ii 442-446. 6 Above 184.
6 Cunningham, op. cit ii 446 ; the date 1696 is taken because it was not till after
the crisis of the new coinage had been passed that the Bank of England was firmly
established.
190 THE LAW MERCHANT
exchange will be added the instrument by which a person orders a
banker to pay — the cheque of modern law. To the promissory
note will be added the instrument in which the banker promises
to pay — the bank bill or bank note. With regard to these
instruments, three questions had already risen : (i) how far were
they negotiable ; (ii) how far would their acceptance operate to
discharge a debt ; and (iii) what was the obligation of the banker
who had given such a note to a customer ?
(i) There is no doubt that, from the first, the order given by
a customer to the banker to pay was regarded as a bill of exchange,
and therefore negotiable ; x and at the present day the Bills of
Exchange Act defines the cheque, by which this is now effected,
as "a bill of exchange drawn on a banker payable on demand.' 2
Cheques being treated as bills of exchange, non-payment by the
banker gave a right of recourse against the drawer, unless he had
accepted it in full discharge of the debt.3 Side by side, therefore
with the bill of exchange, we get a similar instrument which will
eventually become the modern cheque. On the other hand, the
bank bill or bank note, by means of which the depositor proved,
his right to the sum deposited with the banker, was in substance a
promissory note. This deposit note, bank bill, or bank note was
originally given for the whole sum deposited, and if any of it was
paid off, the amount so paid off was marked on the original note.4
• ' By an improvement on the original system, the receipt for the
gross deposit might be sub-divided ; it was only one step further
... to give, instead of a single promise to pay the entire sum, a
series of promises to pay a number of smaller sums making up the
total of his customer's deposit."5 These notes given by a banker
1 A reproduction of the oldest known cheque, taken from The Times of Jan. 5,
1915, will be found in the L.Q.R. xxxiv 25. For other early specimens see The
Grasshopper in Lombard Street 129 ; the following is one :
" Bolton 4th March 1684.
" At sight hereof pay unto Charles Duncombe Esq. or order the sum of four
hundred pounds, and place it to the accompt of
" Your assured friend,
" WINCHESTER.
"To Captain Francis Child, Near Temple Barre."
2 45, 46 Victoria c. 61 § 73. For the evolution of the word " cheque " see
Oxford English Dictionary, sub voc. Cheque; it was originally applied to the counter-
foil attached to bills or other similar instruments to check forgery or alteration ; it was
then applied to any bill which had such a counterfoil — they were called cheque bills
or cheque notes ; thus in 1717 the Court of the Bank of England ordered all who kept
accounts at the bank by drawn notes to use cheques ; it is not till the late eighteenth
century that the word is used in its modern sense. For an early use of the word,
which is possibly connected with this original meaning of the word cheque, see
above 184 and n. 3.
8 Above 162-163, 170 ; cp. Ward v. Evans (1709) 2 Ld. Raym. 928 ; S.C. 1 Eq.
Cas. Ab. 376.
4 The Grasshopper in Lombard Street 127 ; see Cooksey v. Boverie (1693) 2
Shower, K.B. 296-297 for an illustration of this practice ; and compare the modern
letter Of credit.
6 The Grasshopper in Lombard Street 127.
BANKING 191
might represent not only an actual deposit, but a sum which the
banker had agreed to lend to a borrower. Because they were in
substance promissory notes, they were treated by Holt as not
negotiable ; 1 and only became negotiable by the Act of 1 704.2
It is true that there is one case in which apparently Holt treated
them as negotiable ; 3 and, as we have seen, we must explain that
case, either by supposing that the notes in that case were drawn
as bills, or that they were Bank of England notes, which were
considered to have been made negotiable by the Act of 1694.
However that may be, there is no doubt that their negotiable
character was finally fixed in 1704.
(ii) Neither a cheque nor a note operated as payment until it
was honoured,4 unless it was accepted in full discharge of the debt
That it was so accepted was somewhat easily proved ; 5 and it
might be presumed if persons to whom it was delivered delayed to
demand payment.6 But such delivery was not in itself payment ;
and if a servant or agent were directed to obtain payment, he was
not thereby authorized to take a note of this kind." It is only as
a result of legislation 8 that Bank of England notes are legal tender
(except as against the bank), and therefore operate as absolute
payment It is true that, in the latter part of the seventeenth
century, the merchants said that it was their custom to treat the
receipt of these notes as absolute payment9 But Holt decided, and,
except in so far as it has been modified by the Legislature, it is still
the law that payment by cheque or bank note is not absolute
payment,10 unless it can be inferred that the parties have agreed to
take it as such payment.11
1 Above 172. J 3, 4 Anne c. 9 ; above 173.
8 Above 174 n. 2.
4 "When such a note is given in payment, it is always intended to be taken
under this condition, to be payment if the money be paid thereon in convenient time,"
Ward v. Evans (1704) 2 Ld. Raym. at p. 950 per Holt, C.J. ; later it was held that
if bank notes were offered and no objection was made, these would be a good tender,
i.e. the presumption was in favour of payment, Wright v. Reed (1790) 3 T.R. 554;
the fact that they could be objected to shows that they were not regarded as cash.
8 Vernon v. Boverie (1683), Cooksey v. Boverie (1693) 2 Shower K.B. 296-297.
6 Ward v. Evans (1704) 2 Ld. Raym. at p. 930 per Holt, C.J. : " If the party who
takes the note keep it by him for several days without demanding it, and the person
who ought to pay it becomes insolvent," it would operate as payment
7 Ward v. Evans (1704) 2 Ld. Raym. at p. 330.
8 3 and 4 William IV. c. 98 § 6 ; Wright v. Reed (1790) 3 T.R. 554 per Buller, J.
9 " The notes of goldsmiths (whether they be payable to order or to bearer) are
always accounted among merchants as ready cash, and not as bills of exchange,"
Tassell and Lee v. Lewis (1696) 1 Ld. Raym. at p. 744.
10 Ward v. Evans (1704) 2 Ld. Raym. at p. 330 ; cp. Hopkins v. Geary (1702)
referred to in Tassell and Lee v. Lewis 1 Ld. Raym. at p. 744 ; as Mr. Street says,
the usage to consider these notes as absolute payment " may have been at the point of
maturing into a custom, but Ward v. Evans settled the law the other way," Principles
of Legal Liability ii 391 ; Holt's decision would seem to have been in substantial
accord with the continental practice as stated by Marquardus, above 182 n. 4 ; though
possibly the presumption of payment was stronger on the Continent, and therefore
more like the law contended for by the merchants in Tassell and Lee v. Lewis, see
last note. u Above 170 n. 2.
192 THE LAW MERCHANT
(iii) On the other hand, if a banker gave a note to his customer
promising to pay, the mere fact that he had given it in return for a
note upon another person which he could not collect, did not dis-
charge him.1 It would seem that in such a case he could not safely
give such a note till he had actually collected the money.
In this period the institution of banking is very new, and the
law is scanty. We must wait till the following period for the
elucidation of the many difficult legal problems to which it gave
rise. At this point we must turn to the history of those com-
mercial societies, whose extensive transactions had rendered it
necessary for English Law to become acquainted, both with the
properties of negotiable instruments and with the institution of
banking.
§ 4. Commercial Societies
The commercial societies known to our modern law are associa-
tions formed for the purpose of making profits and of sharing them
among their members ; and these associations are, with the excep-
tion of those which have a special statutory status, either corporate
companies or unincorporate partnerships.2 At the end of this
period English law had in substance reached this position. The
joint stock company with freely transferable shares, for which there
was a market, was a familiar object. A special class of dealers
in these shares had arisen ; 3 and also a special class who made it
their business to promote their formation. Both the arts of these
promotors, and the modern phenomena of speculation, were known
to the world of commerce, and had begun to attract the attention
of the government.4 Side by side with the joint stock company
was the unincorporate partnership ; and, though the distinction
between a corporate and an unincorporate body was clear enough in
legal theory, it was not as yet very clearly understood by the com-
mercial world. Commercial men did not firmly grasp the distinc-
tion between a large partnership and a chartered company till after
the passing of the Bubble Act in 1720.5 Probably this haziness
was due to the fact that English law had as yet very few clear rules
as to the powers of these commercial societies, corporate or unin-
corporate, and as to the relations of their members inter se or to
third persons. These bodies had made their appearance in the
world of commerce ; but the lawyers had, as yet, hardly begun to
1 Trowel v. Evans (1710) 1 Eq. Cas. Ab. 375.
2 Lindley, Company Law (5th ed.) 2 citing Macintyre v. Connell (1851) 1 Sim.
N.S. at p. 233.
3 Below 214, 224. 4 Below 211-213.
6 6 George I. c. 18 §§ 18-29 ! below 219-221.
COMMERCIAL ASSOCIATIONS 193
settle their position in the legal system or to evolve rules to
regulate their activities.
In this section, therefore, I must discuss chiefly the origins of
these commercial societies, corporate and unincorporate, and the
form which they had assumed at the end of this period. I shall
deal with this subject under the following three heads : firstly, early
forms of commercial association ; secondly, the application of the
corporate idea to commercial societies ; and, thirdly, the commercial
companies and partnerships of the seventeenth century.
Early Forms of Commercial Association
The two early forms of commercial association which have
left their traces upon the later law are (i) the gild, and (2) the
mediaeval contract of partnership.
(1) Gilds formed for many varied purposes — religious and
social as well as commercial — had existed from Anglo-Saxon
times.1 It is in the Gild Merchant, which appears soon after the
Norman Conquest,2 that we get the earliest association for strictly
commercial purposes ; and, later, we see the rise of the various
trade gilds.3 There are many traces of the influence of these gilds
upon the trading companies of the sixteenth and seventeenth
centuries. Their governing bodies often consisted of a governor
and associates ; and it is this form of organization that the com-
mercial companies of the seventeenth century adopted.4 In order
to attain the objects for which the gild was formed it was often
necessary for them to pass bye-laws,5 and to keep and audit
accounts." This power and duty is often specifically mentioned in
the charters of the regulated7 and early joint stock companies.8
There was a very close fellowship amongst the members of these
gilds. They might be required to share their purchases with their
fellows ; and, later, the gild would sometimes appoint persons to
purchase goods, which were then divided among the members.9
Dr. Scott has pointed out M that " some of the early [joint stock]
companies, instead of paying what would now be called a dividend,
1 Stubbs, C.H. i 469-472. 2 Ibid 472, 473 ; vol. i 540.
3Stubbs, C.H. iii 611, 612 ; vol. i 568.
4 Scott, Joint Stock Companies i 7 ; the Charter to the Merchants of Andalusia
(1505), Select Charters of Trading Companies (S.S.) 2, 3, provided for a counsellor
or counsellors and twelve assistants ; the Charter of the Levant Company (1601), ibid
32, for a governor and twelve assistants.
5 Scott, op. cit. i 7, 8. « Ibid.
7 Levant Charter (1601), Select Charters of Trading Companies (S.S.) 34;
Charter of Merchants Trading to France (1612), ibid 72 ; Charter of the African
Company (1619), ibid 102, 103 ; for the difference between a regulated and a joint
stock company see below 206.
8 Charter of the Mines Royal (1568), ibid 9, 10 ; the New River Charter (1620),
ibid 113.
9 Scott, op. cit. i 6. 10 Ibid.
VOL. VIII.— 13
194 THE LAW MERCHANT
made a division of commodities to the members. This was pro-
posed in the case of the Society of the Mines Royal (1571); it
was a common practice of the East India Company in the first
half of the sixteenth century ; and it was the rule of the Ayr and
Newmills cloth manufactories from 1670 to 171 3. If it be
supposed that the officials of the gild collected the funds from the
members before the goods were delivered to them, the transaction
resolves itself in its essentials into a joint stock followed by a
commodity division." The very closeness of this fellowship left
its mark both upon the conditions of the membership and the
ceremonial of these gilds. Membership came generally by birth
or apprenticeship ; the members must take an oath of fidelity ;
they were penalized if they did not attend meetings ; on fixed
occasions there were feasts.1 We can see some of these
characteristic features in the early trading companies ; for instance,
the conditions upon which membership in the East India Company
could be obtained were defined in 161 5, and favour was shown to
relations or dependents of members ; 2 the purchaser of a share in
that company was for a long time obliged to take an oath on ad-
mission ; 3 and there were penalties for absence from meetings and
disorderly conduct.4
It is, of course, in the earlier history of the commercial com-
panies that the influence of the gild tradition is most clearly marked ;
it is more apparent in the regulated than the joint stock companies,
because their objects were less strictly commercial ; and it affects
their organization, and their forms and ceremonies, rather than the
manner in which they conducted their trade. More exclusively
commercial influences come from the mediaeval contract of partner-
ship.
(2) Right down to the seventeenth century, the relations of
partners inter se maintained something of the old gild tradition, in
the idea that there was about them a connotation of brotherhood.
1 Scott, op. cit. 13,4.
2Carr, Select Charters of Trading Companies (S.S.) xlix ; see the African Charter
(1619), ibid 105 ; the Charter of the King's Merchants of the New Trade (1616), ibid
81, after enumerating the members, provides " that they and every one of them their
and every of their sons and apprentices . . . shall be . . . one body corporate."
8 Evelyn's Diary, Sept. 27, 1657 : " I tooke the oath at the East India House sub-
scribing £500 " ; and this was a common provision in the charters ; see, e.g. the
charter of the Mines Royal (1568), Select Charters of Trading Companies (S.S.) 10 ;
London Gold Wiredrawers (1624), ibid 133. Later charters, e.g. the Mine Ad-
venturers of England (1704), ibid 245-247, only provide for an oath to be taken by
the officers of the company.
4 Scott, op. cit. i 4 ; ii 96 ; speaking of the organization of the East India Com-
pany, he says : " Its characteristics have frequently been noted, especially those that
contain elements of old world picturesqueness, such as the march of the beadle carry-
ing the subscription book or to summon the adventurers to a court, the ' feasts ' of the
freemen, the disciplinary rules by which they were fined for absence from a meeting,
late appearance, or a neglect of the courtesies of debate."
COMMERCIAL ASSOCIATIONS 195
The association is a "companhia."1 The members are "com-
panions," and have inter se the beneficium competentice* Indeed,
some primitive forms of non-commercial partnership in early French
law,3 and perhaps in early Roman law,4 are hardly distinguished
from gilds. But such forms of partnership died out. In a
primitive age they were apt to facilitate disorder ; and, when the
state was beginning to make its supremacy felt, it frowned upon
them.5 It is the commercial partnership that survived and de-
veloped with expanding trade ; and, in the Middle Ages, it took
two chief forms, both of which have left their marks upon the
commercial societies of our modern law. The first of these forms
was the commenda, the second the societas.
(i) The Commenda. — Of the general features of this contract,
and of the manner in which it was used to effect the loan of money
at interest without incurring the guilt of usury, I have already
spoken.6 We have seen that the contract was in substance an
arrangement by which a merchant who stayed at home — the com-
mendator — lent capital to a partner — the commendatarius — to
employ in trade. The commendatarius was entitled to his ex-
penses and, generally, to one-fourth the profit.7 If the capital
was lost by no fault of the commendatarius the commendator bore
the loss.8 The contract was very common all over Europe in the
Middle Ages,9 and it was known in England.10 The example cited
in the note, which is dated April, 121 1, will make the position of
the parties to it clear.11 This example is an illustration of the
1 See Blancard, Documents inedits sur le commerce de Marseille au moyen age.
In this collection of thirteenth century documents this word is usually used in conjunction
with the word societas to distinguish it from a commenda, see e.g. i 364, 405, 406 ; ii
231, 232, 269. The following is an example from 1248 : " Ego Petrus Anglicus, pel-
lerius, confiteor et recognosco tibi Petro Pellerio civi Massiliae, me habuisse et recepisse
in societate et ex causa societatis a te xv 1, regalium coronatorum, renuncians, etc.,
quam companhiam debeo tenere salvam," etc., ibid 333.
2 Marquardus, De Jure Mercatorum et Commerciorum ii. xi 14, points out that a
socius tolorum bonorum always has this beneficium, " raticne societatis quae jus frater-
nitatis continet," and, " etiam socius unius rei in id quod facere potest condemnatur,
at non semper, sed turn demum si ratione illius rei in qua societas contracta est con-
veniatur."
3 See Brissaud, Histoire du Droit Frangais ii 1454-1456, as to the "communautes
taisibles de roturiers ou de serfs."
4 Girard, Droit Roma!n (2nd ed.) 562 n. 3.
5 Brissaud, op. cit. ii 1455, 1456. 8 Above 104.
7 For specimens, see Blancard, op. cit passim; sometimes the commendatarius
was given a half share of the profit ; see eg. ibid ii 180, 217, 218.
8 The clause "ad fortunam Dei . . . et ad tuum resigum," see below, n. n,
which was usually inserted, had this effect.
9 Mitchell, Early History of the Law Merchant 128.
10 Select Cases on the Law Merchant (S.S.) i 77, 78 — a case of the year 1300 in the
Fair Court of St. Ives ; Thomas, Calendar of early Mayor's Court Rolls 104-105 — a
case of the year 1300 ; ibid 132 — a case of the year 1302.
11 " In nomine Domini, amen. Manifestum sit omnibus hominibus hanc cartam
audientibus quod ego Bernardus de Gardia confiteor et recognosco me habuisse et
recepisse a te Stephano de Mandolio, in commenda, IIII. 1. et xvii. S. regalium corona-
torum, implicatas in xxv. bisancis milarensium, in quibus penitus ex certa scientia
196 THE LAW MERCHANT
earliest form of commenda, which contemplated a trading venture
beyond the seas. But later it developed in different directions.
It came to be used " for internal trade, and, finally, even for local
industry." 1 At first the capital was always supplied by the com-
mendator, but later we get cases in which both the commendator
and the commendatarius contributed capital.2 At first the contract
contemplated one undertaking, but later we have contracts which
contemplate a number of undertakings, or establish the relation
for a definite or indefinite period.3 Finally, in Italy, in the fifteenth
century, we find cases in which there are a number of commenda-
tores or commendatarii. The former are in substance capitalists
who have invested money in the undertaking. They are not
responsible for any debts beyond the amount of the capital invested,
and they have no share in the management. The latter are in
substance the directors of the undertaking ; and they are personally
liable to pay all debts contracted.4 It is this latest development
of the commenda which is the direct ancestor of the French society
en commandite}
This form of partnership did not take root in England, and has
only been introduced by the Act of 1907.6 This peculiarity of
English law is due to several causes. Firstly, the conquest by the
courts of common law and equity of the field of commercial juris-
diction 7 made English commercial law very insular. Secondly, in
the trades controlled by the later regulated companies this form of
commercial society was discouraged, because it afforded a means by
which persons not free of the company might succeed in trading
without being free of the company.8 Thirdly, England's trade did
not begin to develop rapidly till the latter part of the sixteenth
century ; and by that time the joint stock company was emerging.9
through which the ideas, implicit in the later form of commenda —
the opportunity for an investment of capital and a limited liability
renuntio exceptioni non tradite et non numerate peccunie ; cum qua commanda ibo>
Deo duce, ad laborandum in hoc itinere de Oharano, et deinde ubique, causa negociandi
ad fortunam Dei et ad usum maris et ad tuum resigum, ad quartam partem lucri ; et
promitto, auxiliante Deo, reducere totum dictum capitale et lucrum in hac terra in tuum
posse vel tuorum, et verum inde tibi vel tuis dicam, et exinde recipio te in Dei fide et
mei. Actum fuit trans Tabulas Ugonis Andree, anno dominice incarnationis MCCXL,
IV. nonas Aprilis," Blancard, op. cit. i 8 no. 5.
1 Ashley, Economic History i Pt. II. 415 ; see Blancard, op. cit. i 301-302, for an
instance in 1248 of a commenda for internal trade.
2 Ashley, op. cit. 414, 415 ; see the specimen cited by Mitchell, op. cit. 126.
3 Ibid 127.
4 Ibid 128 : " Contracting in their own name the managers were responsible for
the debts of the association, while the commendators were freed, in Florence, as early
as 1408, from all liability beyond the amount of their quota. . . . This type of com-
menda was in the sixteenth century regulated in Italy by several city statutes, and in
the following century in France."
5 Ibid 129. " 7 Edward VII. c. 24.
7 Vol. i 553-558, 568-573 I vol. v 139-148, 152-154.
8 Scott, op. cit. in. 9 Below 208-209.
COMMERCIAL ASSOCIATIONS 197
— could be more readily carried out. Fourthly, at the beginning
of the eighteenth century legislative opinion was hostile to the
limitation of liability, which was the essential feature of the com-
menda} But it was through the commenda that the idea of a
society in which the capitalist could invest and limit his liability
came into the commercial law of Europe ; and, although it left no
direct descendant in England, the influence of this idea indirectly
affected the form of the commercial societies which in England and
elsewhere emerged in the seventeenth century.
(ii) The Societas. — The commenda was originally a temporary
association of two or more persons to carry out a particular com-
mercial transaction ; and the relations between the parties to it
were purely commercial. The societas, on the other hand, was a
more permanent association ; and, as we have seen, the idea that
partners were in some sense brothers lived long in the law.2
Though the latter idea tended to evaporate, the former did not.
It may, indeed, be sometimes difficult to distinguish some of the
later forms of commenda from a societas ; but they were always
treated as quite distinct transactions ; 3 and the distinction tended
to grow more marked by reason of the consequences which the law
deduced from the solidarity and permanence of this type of associa-
tion. Thus the law gradually came to the conclusions, firstly, that
each partner represented the others, and could bind the others by
his contracts made on behalf of the firm ; 4 and, secondly, that each
partner was personally liable without any limitation to all the
creditors of the firm.5 The closeness of the tie which united the
members of the societas is illustrated by the fact that it often traded
1 Below 203-205. - Above 194-195.
3 See Blancard, op. cit. ii 231, 232 — a document in which the parties enter into a
contract both of societas and commenda ; the two bargains are kept quite distinct ; ibid
ii 103-104, in which a number of contracts of commenda are converted into a societas ;
cp. Mitchell, op. cit. 136.
4 Ibid 132-134 ; Brissaud, op. cit, ii 1456, 1457 ; see Marquardus ii. xi 14 :
" Ut autem ex contractu vel facto unius sociorum teneatur socius alter non
solum hoc est necessarium, (1) quod unus ab altero negociationi propositus sit tacite
vel expresse . . . sed etiam haec requiritur, (2) quod ille socius, qui contractus fuerit,
eum celebraverit nomine hujus societatis, cujus socios creditores vel contrahentes con-
veniri volunt. . . . Quod fit si negocia societatis a sociis simul et promiscue pertrac-
tantur ; ita ut negociatores modo cum uno modo cum altero eorum contrahant . . .
(3) hoc fit si plures mercatores socii administrationem negociationis committunt uni
eorum. . . . (4) quando liber rationum sub unius socii nomine concipituret describitur
tunc ille caeteros obligat in solidum " ; this passage shows that the presumption in
favour of the power of the partner was, when he wrote, strong ; but had not yet de-
finitely become a rule of law ; the stage at which a special authority was needed had
clearly passed.
8 Mitchell, op. cit, 135 ; Huvelin, Des Marches et des Foires 484-486 ; the
personal liability was not at first unlimited ; but it always was unlimited in the fairs of
Champagne ; and, " il est plus que probable que cette responsabilite, qui donnait une
garantie d'ordre exceptionel aux obligations contracted dans les foires de Champagne,
n'a pas 6t6 sans exercer une influence notable sur le formation ult^rieure du droit des
societes."
198 THE LAW MERCHANT
under a collective name.1 " Bartolus proves that in his day the
formula Titius et socii was already well established, and that its use
entailed the joint and several liability of all the partners, even if they
were not individually named." - Clearly we are on the high road to
the view that the firm is a legal person distinct from its members.3
Scaccia maintains this thesis ; 4 and the law of Scotland, which has
been more influenced by continental law than English law,5 has
adopted it.6 That English law never came to this conclusion is
due to somewhat the same causes as prevented it from recognizing
the soaVte en commandite.1 The corporate company was more
convenient than an unincorporate society of this kind. The
lawyers, in spite of the fact that their own Inns of Court were
unincorporated societies, found it difficult to recognize as a separate
person any body which was not incorporated ; and, as we shall see,
the history of the commercial societies of the seventeenth century,8
and the action of the Legislature at the beginning of the eighteenth
century,9 tended to stiffen and confirm this attitude of the common
lawyers. But, for all that, the idea of a permanent commercial
society, which is almost a distinct legal person, has influenced
both the companies and the partnerships of our later law. The
advantages of a solidarity, which draws a clear line between the
firm and the individuals composing it, was a powerful influence
which led merchants to wish for the corporate form. And, if they
could not attain this form, and merely associated as an unincorporate
firm, the ideas that each member of the firm is the other's agent,
and that their liability is unlimited — ideas which were the conse-
1 Huvelin, op. cit. 251. 2 Brissaud, op. cit. ii 1457.
3 " Si la soci^te" a un nom a elle, c'est qu'elle a une personality distincte, ind£-
pendante de celle des associ£s ; ou tout au moins, si Ton ne va pas jusque-la et que
l'on concoive qu'un nom puisse etre donne" a un faisceau d'int^rets, il est difficile de
ne pas reconnaitre que la tendance de la societe" a constituer une personne civile
s'accuse dans ce fait. Fr^quemment, surtout pour plaider les associ£s en nom collec-
tive, au lieu d'agir eux-memes, ont un mandataire investi du pouvoir d'user de la
raison sociale," ibid.
4 De Commerciis et Cambio § i, quaest. i 450 : " Aliud est corpus unius societatis,
et aliud est quilibet socius ipsius societatis ; unde si socii societatis cambii faciant
bursam communem, et unum ex sociis constituant qui praesit illi bursas communi, et
hie praepositus petat ab uno ex sociis quod debet conferre in bursam communem, et
iste socius respondeat prasposito, tu debes mihi tantundem, compenso tecum ; non est
audiendus, quia quod debet societati non potest compensare cum eo quod debet habere
ab uno ex sociis, cum societas non teneatur solvere debitum alienum " ; cp. ibid § 6,
gloss. 1, 95.
5 Scott, op. cit. i 13 n. 6. ° Pollock, Partnership (nth ed.) 24.
7 Above 196-197 ; " it might be supposed that, when there came a time at which
English capital began to be used in enterprises of magnitude, the model of the societas
would be adopted ; but before that stage had been reached the influence of the Italian
bankers in London had greatly declined. . . . When a considerable capital began to
be needed to develop English industries about the middle of the fifteenth century . . .
the corporate idea had developed in such a manner as, temporarily, to check the ex-
tension of partnership," Scott, op. cit. i 2.
8 Below 214-219. 9 Below 219-221.
CORPORATE SOCIETIES 199
quences deduced from the nature of the Mediaeval Societas — have
left their mark on our modern law of partnership.1
Towards the end of the sixteenth century it was clear that,
for the attainment, either of the objects of the sociitc en cotn-
mandite, or of the objects of the larger specimens of the societas,
the corporate form was desirable. With the effects of the
application of this legal conception to commercial societies in
England we must now deal.
Tfie Application of the Corporate Idea to Commercial Societies
Before the beginning of the sixteenth century English law
had acquired some knowledge of the ideas involved in corporate
personality ; 2 and during the sixteenth and seventeenth centuries
considerable progress was made in the development of the law on
this topic.3 The value of the application of this legal conception
to the older unincorporate bodies which regulated trade was soon
apparent It led to better government and a closer organization ;
and these advantages were especially needed in the foreign trades
in which Englishmen were beginning to claim a share./ From
the last years of the fourteenth century onwards, kings made
extensive grants of powers and privileges to companies of
merchants trading abroad. " In 1391," says Mr. Carr,4 " Richard
II. empowered the English merchants in Prussia to meet and
elect a governor, who was to rule over the traders, do speedy
justice, settle disputes, and award compensation. Reasonable
ordinances, pro meliori gubernatione, made in proper form with
the common assent, were confirmed ; and all and singular the
said merchants were bidden to be helpful. Within the following
twenty years Henry IV. gave similar privileges to the Havre
Merchants, and to the merchants trading to the Netherlands and
to Norway." And there are similar grants made at about the
same period to the Merchant Adventurers and the Eastland
Company.5 The privileges granted to the companies trading
xThe incidents of the modern contract of partnership were fashioned by equity during
the eighteenth and nineteenth centuries ; a few rules had begun to be developed during
this period, below 217-218, 242-243 ; but its history belongs, like that of many other
branches of equity, to the iollowing period.
1 Vol. iii 482-487. s Chap, vi § 2.
* Select Charters of Trading Companies (S.S.), xi, xii ; they got a further charter
in 1404, Scott, op. cit. i 8, 9.
5 Carr, op. cit. xxi, jorii : " Time wrought little change in the charters of those
companies which regulated trade. . . . The charters which Elizabeth gave or con-
firmed to the Merchant Adventurers . . . follow the usual pattern. Her patent of
1564 to the Merchant Adventurers of England (with which the grants to local bodies
of merchants in Bristol, Chester, York, Newcastle, Hull, and Exeter may be com-
pared) largely repeats and extends an older grant of 1505, which in turn was developed
from one of 1407. . . . Similarly, in the case of the regulated Eastland Company,
the Elizabethan patent is developed from an original of 1408, which provided for the
government of the Baltic Merchants."
200 THE LAW MERCHANT
abroad in the sixteenth century follow these precedents. The
grant to the Merchants of Andalusia in 1 505 is similar to these
earlier grants ; and, as in the earlier grants, nothing is said about
giving corporate form to their associations of merchants.1 But
that was in substance what was done ; and in later grants to some
of these old companies, and in the grants to the new companies,
they are expressly incorporated, and the consequences of incorpora-
tion are set out.2 But the actual privileges given, and the powers
to organize the trade, do not materially differ from the older
grants ; and in some of the clauses of these charters, and in many
of the observances of the companies, we see traces of an old gild
to which more precisely defined powers and a corporate form have
been given by royal charter.3 And as it was with foreign trade
so it was a little later with domestic trade. Some of the older
gilds and companies, which exercised disciplinary powers over
their particular trade, reappear, in substance, if not in name, as
corporate bodies — to which the Crown or Parliament have given
large powers of controlling their particular trade.4
If we look at the early charters to trading companies, we shall
see that they are either made to the merchants trading to foreign
countries, in order that the trade might be properly organized ; 5
or they are made to merchants who wished to settle a new trade in
parts where no English merchant had as yet traded ; 6 or they
1 Carr, op. cit. 1-3.
2 See e.g. the Charter of the Levant Company (1601), Select Charters of Trading
Companies (S.S.), 32 : " that they [the merchants before named] and every of them
forever henceforth be and shall be one body corporate and politic in deed and in name
by the Governor and Company of Merchants of London trading into the Levant seas ;
and them by that name one body corporate and politic in deed and name really and
fully for Us our heirs and successors We do erect make ordain constitute and declare
by these presents." Then follow clauses allowing them capacity to hold and alienate
lands, to plead and be impleaded in the corporate name, and to have a common
seal.
3 Above 193-194 ; cp. a clause in the charter of the King's Merchants of the
New Trade (1616), which also appears in the Merchant Adventurers' Charter of 1564
(Select Charters (S.S.) 86), which gives power to the Governor and Assistants to
admonish members of the company to come to the assemblies of the company, and if
they do not appear, to fine and imprison them. The charter of the Mines Royal
(1568) (ibid 12, 13) gives power to correct and punish by fine and imprisonment
those who disobey the orders of the society ; the same charter (ibid 12) gives juris-
diction over the " causes differences variances controversies and complaints " of the
" ministers officers labourers and workmen of the said corporation."
4 The privileges of some of these older associations were saved when a charter
was granted to a new company. Thus, when the Royal Lutestring Company was
given a charter in 1693, the privileges of the Weavers' Corporation were saved,
Select Charters (S.S.) 233, 234 ; for those older associations and their powers see
vol. ii 391, 466-467; vol. iv 321-322.
6 The need for this organization was the great argument of those who desired a
regulated as opposed to a free trade, see Select Charters (S.S.) xxv; and cp. the
Charter of the Merchants Trading to France (1612), ibid 63, 73, 74 ; Charter of the
King's Merchants of the New Trade (1616), ibid 93 ; S.P. Dom. (1673-1675) 291.
6 In the first charter of the Russia Company, which dates from 1555, the
company was styled "The Merchants Adventurers of England for the discovery of
CORPORATE SOCIETIES 201
are made to explorers who wished to colonize and settle and
establish a trade in unappropriated lands beyond the sea.1 All
these companies want governmental powers and trading privileges
which the crown alone can give them. In the first place, they
want a power to associate, as without some definite permission,
associations were looked upon with suspicion by the government.2
In the second place, having got the right to associate, they want
powers of self-government,3 powers to impose taxes on their
members,4 powers to decide their own disputes,5 powers to take
adequate measures to defend themselves against pirates and other
enemies.6 They want the privilege of a monopoly of trade,"
dispensation from particular laws as to export and import,8 and
other laws 9 which might hinder their trade, remissions of customs
duties.10 All these privileges the king, by virtue of his wide pre-
rogatives to control foreign trade, could grant And he was
inclined to grant them, because the control which could be thus
exercised by the company over its members, was of great assist-
ance to the state in the international complications which often
arose out of the various mercantile activities of its subjects.11
Thus, in the first instance, corporate form was valued both by the
king and by the merchants, not so much because it created an
lands territories and isles dominions and seignories unknown and not before that late
adventure or enterprise by sea or navigation commonly frequented," Scott, op. cit.
" 37> 3^ ! 'ts privileges were confirmed by an Act of 1566 (which is not printed in
the Record Com. Ed. of the Statutes), and its style was shortened, ibid 41, 42;
Select Charters (S.S.) 28-30.
1 Charter of the Newfoundland Company (1611), ibid 51.
2 Ibid xv n. 1 ; this right was specially granted in the Charter of the Merchants
of Andalusia (1529), ibid 2 ; and the necessity for the grant of such a right is alluded
to in the charter of the Merchants of the New Trade (1616), ibid 79; Jeffreys, C.J.'s,
dictum in The East India Company v. Sandys (16S4) 10 S.T. at p. 524, that " numbers
of people could not meet to traffic or merchandize without being in danger of being
punished as unlawful assemblies," had a good deal of authority to support it.
3 These powers, of course, vary with the nature of the company. They are very
large in the case of companies like the Newfoundland or African Company ; they are
comparatively small in the case of companies like the Mines Royal ; and in the later
charters to purely commercial companies they diminish still further.
4 This is usual in all the early regulated companies.
8 See e.g. the Charter of the King's Merchants of the New Trade (1616), Select
Charters (S.S.) 85.
"Thus in 1613 the Newfoundland company got power to fit out and maintain at
the cost of the fishing fleet a ship of war, Acts of the Privy Council (1613-1614) 146.
7 Charters cited above, 200 n. 5 ; Levant Chatter (1601), ibid 36.
8 Charter of the Society of the New Art (1572), ibid 24 ; see ibid Introd. xv,
xvi.
9 E.g. the Charter of the Mineral and Battery Works (1568), ibid 19, exempts
employes from jury service; in the Charter of the King's Merchants of the New
Trade (1616), ibid 84, 12 Henry VII. c. 6 is dispensed with.
10 E.g. the Newfoundland Charter (1611), ibid 57, 58 ; and see ibid Introd. xvi
n. 2.
u Thus in 1613-1614 complaints of outrages committed on Frenchmen by a
person " employed for Virginia," and by the captain of a ship belonging to the
Muscovy Company were preferred for information to the Council of Virginia and to
the Muscovy Company, Acts of the Privy Council (1613-1614) 316-317.
202 THE LAW MERCHANT
artificial person distinct from its members, as because it created
a body endowed with these governmental powers and trading
privileges. It was from the point of view of trade organization
and the foreign policy of the state, rather than from the point of
the interests of the persons composing the company — from the
point of view of public rather than commercial law — that the
corporate form was valued.
In the seventeenth century, in consequence of the rise of the
joint stock company, formed to conduct jointly some specific
trade,1 the commercial advantages of incorporation began clearly
to appear. In the first place, the corporate company, unless
created for a definite period only,2 was a perpetual ibody. When
persons who had formerly worked together as partners were
incorporated, the incorporation got rid of " divers and sundry
great inconveniences which by the several death of the persons
abovesaid or their assigns should else from time to time ensue.J^
Secondly, the fact that it was a corporate body made it easier to
take legal proceedings against third persons,4 and possible to take
such proceedings against their own members.5 Thirdly, the
possession of a common seal made it easier to authenticate the
acts of the corporate body, and to distinguish them from the acts
of the individual corporators.6 Moreover, it was possible to pro-
vide that, unlike partnership, the votes of a majority of the
corporators should bind the rest.7 Fourthly, continuity of
management was more easily attained.8 Fifthly, some undertak-
ings, e.g. the New River Company, desired power to make rules
affecting the general public, which they could not otherwise
have acquired.9 Sixthly, it was desirable to make it quite clear
1 Below 208-209.
2 E.g. the East India Company, and the Bank of England ; as Mr. Carr says
(Select Charters (S.S.) xix), " they were cases where exclusive powers were conceded
of such an unusual or experimental nature as to require periodical revision."
3 Charter of the Mines Royal (1568), ibid 5.
4 This power was always inserted, and sometimes at great length ; see e.g. the
Mines Royal Charter (1568), ibid 6, 7 ; see ibid Introd. xix, xx.
5 " An action between a partner and the firm, or between two firms having a
common member, was impossible at common law," Pollock, Partnership (nth ed.)
24 ; it was partly for this reason that the Court of Chancery assumed jurisdiction in
such cases, Spence, Equitable Jurisdiction i 641.
6 See above 197, for the question how far the act of one partner could bind
the rest.
7 Select Charters of Trading Companies (S.S.) xvi and n. 5 ; in the charter of
the Society of the New Art (1572), ibid 26, a unanimous decision is required, probably,
as Mr. Carr says, under the influence of partnership ; in other charters the principle
that the majority decides is stated — see e.g. the Charter of the Mines Royal (1568),
ibid 14, Charter of King's Merchants of the New Trade (1616), ibid 83, Charter of
Mine Adventurers of England (1704), ibid 247, though this would seem to be un-
necessary in view of 33 Henry VIII. c. 27.
8 This was put forward as one of the reasons for incorporating those who under-
took to drain the Bedford Level, Carr, Select Charters (S.S.) xviii and n. 2.
9 Ibid no — "The said work hath not hitherto yielded such profit as was hoped
for . . . partly for want of power in them [the adventurers] to settle the carriage and
government thereof in such order and form as is fit and convenient."
CORPORATE SOCIETIES 203
that shares in a company, though choses in action, were trans-
ferable.1 Seventhly, it was desirable to draw a line between the
corporate liability of a company, and the personal liability of the
members of a company, for the corporate debts. Eighthly, it was
desirable to settle the nature and extent of the personal liability
of the members of the company to creditors of the company, and
to the company itself. Of the nature of the settlement of the law
upon these last two points, which, after some hesitation, was
reached at the close of the seventeenth century, and of the way in
which it was reached, some explanation must here be given.
As early as the fifteenth century it was clear that an individual
corporator was not personally liable for the debts of the corpora-
tion ; 2 and, after some hesitation,3 this conclusion was ultimately
accepted in the latter part of the seventeenth century.4 Indeed,
one of the advantages which petitioners for incorporation frequently
set out, was the clear separation which necessarily followed be-
tween the liability of the corporation and that of its members ; 5
and it is clear from the statutes which established the Bank
of England, that, if the individual corporators were to be made
liable for the debts of the corporation, this liability could only be
imposed by express legislative enactment6 On the other hand,
1 Select Charters (S.S.) xlix ; the existence of such shares is assumed in the
Charter of the Mines Royal (1568), ibid 10, 11. Dr. Scott points out (op. cit. i 443)
that *' as early as the sixteenth century shares were sold outside personal acquaintances
and without limiting conditions " ; and he points out (ibid ii 416 n. 2) that there is an
instance of this in a sale by the earl of Leicester of part of his holding in the Mineral and
Battery Works ; and for sales in the early years of the seventeenth century, see ibid i
161 ; Select Charters (S.S.) xlvii n. i ; that the law on this point was still in an uncertain
condition is clear from the fact that it was sometimes thought desirable to state
expressly that shares should be transferable, see the Charters of the African Com-
pany (1660 and 1662), Select Charters (S.S.) 175, 180 ; of the Royal Fishery (1677),
ibid 200; of the Mine Adventurers (1704), ibid 245, 246; and that, in corporations
established by statute, it was still thought necessary to provide expressly that the
shares should be transferable, see e.g. the statute establishing the Greenland
Company, 4 William and Mary c 17 §§ 19-21.
2 Vol. iii 484.
3 See the authorities cittd by Carr, Select Charters (S.S.) xviii n. 1 ; he yoints out
that " the indenture which settled the sums and rents due to the king from the Starch-
makers Company (Patent Rolls, 20 Jac. I. It. x) provided that no such sums 'shall
in any sort be demanded levied recovered or had but only of the body corporate ' " ;
and that in 1655 the governor of the East India Company got an indemnity from
the company *• because his name is used in all suits and actions " ; Hobbes
(Leviathan 120) thought that " if a body politique of merchants contract a debt to a
stranger by the act of their representative assembly, every member is lyable by
himself for the whole."
4 Edmunds v. Brown and Tillard (1668) 1 Lev. 237; Salmon v. The Ham-
borough Company ( 1671) 1 Ch. Cas. 204.
5 Carr, Select Charters (S.S.) xvii, xviii, says that the following formula, taken from
a petition for incorporation in 1692, is common : " The same [i.e. a joint stock] is not
to be raised unless upon the establishment of a corporation, because if such an under-
taking should be carried on only by articles of partnership, the stock will be liable to
the particular and private debts of the several partners and subject to be torn to pieces
upon the bankruptcy of any of them " ; cp. S.F. Dom. (1691-1692) 523-524.
• 5 and 6 William and Mary c. 20 § 25 — if the corporation borrows more than
£1.200 ,000 the individual corporators are to be personally liable ; 8 and 9 William III.
204 THE LAW MERCHANT
the corporators or shareholders were liable to pay to the corpora-
tion the sums assessed upon them by the corporation ; and the
power to make these "leviations" naturally took a prominent
place in the charters of some of these companies.1 But, that
being so, it is clear that, if creditors could get an order from a
court that the company should make "leviations" upon their
members, the creditors could indirectly make the individual
members of the company liable to the extent necessary to satisfy
their debt. By a sort of subrogation the creditors could use the
powers of the company against the individuals composing it, and
so force these individuals to pay. We see this idea foreshadowed
in a petition to the council in 1639;2 in 1653 it was proposed to
give it statutory force ; 3 and in 1 67 1 the principle was sanctioned
by the House of Lords in the case of Salmon v. The Hamborough
Company} But it should be observed that, as the creditors'
rights against the individuals depended upon the existence of the
company's right to make " leviations " upon the individuals
composing it, they lost these rights if in fact the company had no
power to make leviations. This opened the door to the possibility
of limiting the liability of members of the company by a contract
between the members of the company and the company, which
provided that the members should not be liable to be called upon
c. 20 § 4g — if the capital is diminished by the payment of dividends so that it is not
enough to pay the corporate debts the members are to be liable to the extent of the
dividends received ; see also 6 George IV. c. 9 § 2 ; 7 Will. IV. and 1 Vict. c. 73 § 4.
1 Select Charters (S.S.) xviii n. i ; i, 2, 91, 92, 164, 215 ; for instances in which
these leviations were made, see Scott, op. cit. ii 47, 48, 59, 66, 80, 366, 367 ; for
cases in which the authority of the council was invoked to force payment of these
leviations, see Hist. MSS. Com. 4th Rep. App. 18, 20 (the Muscovy Company); S.P.
Dom. (1634) 352, cclxxviii 39 — Order of Council on petition of the Governor and
Company of Silkmen of London ; ibid (1637-1638) 260, ccclxxxii 20 — Order of Council
on petition of the governor of one of the Associations of Royal Fishings ; cp. ibid
(1639) 381, ccccxxv 43.
aS.P. Dom. (1639) 381, 3S2, ccccxxv 43.
3 See the Draft Act " for the recovery of debts owing by corporations," Somers'
Tracts vi 187 ; under that Act, if the leviations were not made, execution was to be
had against the estate of the person who ought to have made it.
4(i67i) 1 Ch. Cas. at pp. 206, 207, the Lords ordered that the governor and
assistants of the company should " make such a leviation upon every member of the
said company ... as shall be sufficient to satisfy the said sum to be decreed to the
plaintiff in that cause, and to collect and levy the same, and to pay it over to the
plaintiff as the Court shall direct. . . . And if . . . the said money so to be assessed
shall not be paid, then and from thenceforth every person of the said company, upon
such a leviation, shall be made to be liable in his capacity to pay his quota or propor-
tion assessed. And the Lord Chancellor ... is to order . . . that such process shall
issue against any such member so refusing or delaying to pay his quota or proportion
as is usual against persons charged by the decree of the said Court, for any duty in
their several capacities " ; for further information about this case and the difficulties
of the company see Hist. MSS. Com. 8th Rep. App. p. 147 no. 310; 9th Rep. App.
Pt. ii p. 27 no. 109; ibid p. 47 no. 186; in 1672-1673 there is a petition to the Home
of Lords by certain creditors of the Grocers Company that the company should be
ordered to assess their members to raise money to pay them, ibid p. 22 no. 87 (/).
CORPORATE SOCIETIES 205
to pay more than a fixed sum. Such bargains were made ; * and
that they were both common and efficacious may be gathered
from the section of the statute of 1 694, dealing with the liability
of the shareholders in the Bank of England, which declared that,
in certain events, they were to be personally liable for certain
debts, notwithstanding any agreement which they might have
made with the company.2 Thus it would seem that, by the
adoption of the corporate form, a clear line could be drawn
between corporate liability and individual liability ; and that, by
bargains made between the company and its members, the
individual liability of the members of the company could be
limited in any way agreed on between the contracting parties.
Such, then, were the commercial advantages which a society
might get by assuming a corporate form ; and it followed that, if
they were secured, the promoters were able to secure the supreme
advantage of attracting capital more easily to finance their under-
taking. In fact, a society possessing these privileges had all and
more than all the advantages both of the societas and of the
commenda. It was a permanent body quite distinct from its
members. Privileges necessary for the particular trade which it
proposed to carry on could be secured It could get powers to
coerce recalcitrant members, to settle disputes as to the working of
the company, and to make necessary bye-laws. The corporate
liability of the company and the individual liability of its members
could be adjusted The investor could be attracted by the ad-
vantages of transferable shares and a limited liability.
The older regulated companies, formed to organize foreign
trade, naturally preserved many of the characteristics of the
mediaeval gilds, of which they were the lineal descendants. The
new commercial companies of the joint stock type did not, as we
have seen,3 at once lose all trace of these characteristics. But
they were more essentially commercial ; and the privileges which
they obtained were chiefly reminiscent of the ideas which the
development of the societas and the commenda had introduced
into continental law. We must now trace the history of the form
which these ideas took in England during the seventeenth century.
1 Scott, op. cit, i 228 — an agreement in 163 7- 1638, that a shareholder in the
Mosquito Islands Company, who had paid calls up to £1000, might elect not to go
farther; ibid 344 — the shareholders in the Million Bank were promised that they
should only be liable to the extent of their stock. I do not agree with Dr. Scott (op.
cit. i 270) that the Act of 14 Charles II. c. 24, which exempted certain shareholders
from the bankruptcy laws, amounted to a limitation of liability ; it only comes to this,
that they were not to be accounted traders, and so could not be made bankrupt ; if
they were solvent their liability would be unlimited.
* 5 and 6 William and Mary c. 20 § 25.
* Above 194.
206 THE LAW MERCHANT
The Commercial Companies and Partnerships of the Seventeenth
Century
I shall deal with this topic under the following heads : — firstly,
the rise of the joint stock company ; secondly, its commercial and
legal consequences ; thirdly, the Bubble Act and its effect on the
development of company and partnership law.
(i) The rise of the joint stock company.
The main difference between a regulated and a joint stock
company was that in a regulated company each member conducted
his own trade with his own stock, subject to the rules and regula-
tions of the company, while in a joint stock company the company
traded as a single person with a stock contributed by its members.1
The first form of association was the older, and it was well adapted
to a company formed primarily to see that the trade with which it
was concerned was conducted in accordance with the commercial
policy of the state. The second form of association emerged in
England somewhat later, and was more adapted to a company
formed for the strictly commercial object of making money for its
members. It was not, however, till the latter part of the seven-
teenth century that the two forms of company became clearly
distinct. Thus in the East India Company there was at first a
system of terminable stocks.2 The investor subscribed only for a
particular voyage, and the accounts of the different voyages were
kept separately.3 Each member was free to invest or not as he
pleased in any given venture. What was permanent and constant
was not the stock, but the governmental machinery of the company —
in fact, it was not till 1657 that a permanent joint stock was formed.4
Clearly this arrangement, though due partly to the exceptional
position of this company, represents an intermediate stage between
a regulated company formed primarily for the government of the
trade with which it is concerned, and a joint stock company formed
primarily to make a profit for its members.5 Similarly, in some
of the early English and Scotch joint stock companies there was a
dividend paid, not in money, but in commodities.6 The company,
by trading with its joint stock, acquired these commodites, which
it distributed to its members, and the members were free to dispose
of them as they saw fit. This was the plan adopted by the Scotch
New Mills Company, founded to manufacture cloth in 1681.
Membership of the company was limited to trading merchants.
When the cloth was produced, the price was fixed by reckoning
the cost of production, together with a sum to represent interest
1 Select Charters of Trading Companies (S.S.) xxi.
2 Scott, op. cit. ii 96, 97. 3 Ibid 123-128. 4 Ibid 128 et seq.
sIbid 96, 97. 8 Ibid i 12, 301, 302.
COMPANIES AND PARTNERSHIPS 207
on the company's capital. It was then distributed lo members at
this price, and they retailed it. Thus, as Dr. Scott says, " it was
a body in which the members were a regulated company as retailers,
and a joint stock one'as manufacturers."1
It will thus be seen that the company with a permanent joint
stock, which paid pecuniary dividends from its earnings to its
members, only gradually differentiated itself from the regulated
company. It is not surprising, therefore, to find that, "so far as
the charters of incorporation are concerned, the change from the
regulated to the joint stock type is hardly perceptible."2 By the
end of this period, however, the distinction between the two types
of company was well established. The question thus arises, What
was the origin of the joint stock form of commercial association,
and what were the causes of its development?
There can be little doubt that the origin of the joint stock
principle, like the origin of so many other principles of our modern
commercial law, must be sought in mediaeval Italy. Two elements
went to its formation — firstly, ideas implicit in the societas ; 3 and,
secondly, the development of those ideas under the pressure of the
use made of them by the state for its own purposes. It is probable
that the partners in a societas generally traded with what was in
effect a joint stock. From early times partnerships owned shares
in a ship. The shares were transferable, and liability upon them
was limited to the value of the ship.4 It is clear that large
mercantile and banking partnerships, such as the Peruzzi and the
Bardi at Florence, must have carried on their trade with a capital
jointly contributed by the partners.5 We have seen that this
feature of these partnerships tended to make the partnership almost
a distinct legal person, and to make the lawyers regard it as an
entity not very different from a corporation.6 But it was the use
made of these partnerships, under the pressure of state needs, which
necessitated the development of some of them into corporations of
the joint stock type. States as well as kings found it necessary
to borrow in the Middle Ages ; and just as some of our English
kings borrowed from the Italian mercantile and banking societies,7
so the Italian cities borrowed from their citizens. "The loans
were divided into shares {luoghi), and the names of the owners
were registered in special books. The shares not only passed to
the heirs in case of the owner's death, but could be freely bought
1 Op. cit. i 301, 302.
2 Select Charters of Trading Companies (S.S.) xxi. 3 Above 197-199.
4 Thaller, Les Soctetes par actions dans l'ancienne France, 14, 15.
5 For the names of some of these societies, see Huvelin, Marches et Foires 251,
252.
6 Above 198. 7 Above 177-178.
208 THE LAW MERCHANT
and sold." x But to attract the borrower the state found itself
obliged to give some form of security for the capital and interest.
Thus, in 1 346, Genoa raised a loan for the conquest of Chios and
Phocea, and gave the shareholders the dominium utile of the lands
conquered.2 It is obvious that the shareholders were in effect a
large partnership interested in the exploitation of these lands ; and
it was inevitable that they should assume a corporate form. Thus
arose a joint stock company, consisting of creditors of the state,
interested in exploiting a conquered colony. But when the in-
stitution of banking became general, it was also inevitable that it
should play a great part in developing this institution. It was, as
we have seen,3 soon perceived that a banking company could finance
both the state and many other undertakings. Thus, in mediaeval
Italy, as in England at the end of the seventeenth century, banks
were formed which, in return for financial aid to the state, were
given privileges which they exploited as a joint stock company.
In 1407 the bank of Genoa took over the various state loans.
"As security for the interest the city granted important privileges
to the holders of the new consolidated stock, which was divided
into shares of 1 00 lires. The stockholders were granted the
right (1408) to carry on banking business, and especially after
1453 the administration and exploitation of important Genoan
colonies passed into their hands. The creditors of the Genoan
state had become the shareholders of a great colonial company
which ultimately governed and administered Corsica, Kaffa, and
the greater part of the foreign dominions of Genoa."4
In England, in the sixteenth and seventeenth centuries, we
find that the same two elements — the ideas implicit in the societas,
and the development of those ideas under the pressure of the use
made of them by the state for its own purposes — contributed to
the reception of the idea of the joint stock company. The sequence
of events, and the historical incidents which led to their recognition
and development, are, of course, different. But we can see that
substantially the same causes were at work in England at this
period as those which had been at work in Italy in the Middle
Ages.
In the first place, bodies which started as a large partnership
found it expedient to get corporate form, and to carry on their
business as a joint stock company. Thus, the Society of the
Mines Royal, which was founded in 1 561,5 was incorporated in
1 568 ; 6 and the Society of the Mineral and Battery Works, which
was founded in 1 565/ was also incorporated in 1568.8 Similarly,
1 Mitchell, The Law Merchant, 138. 2 Ibid. 3 Above 179-180.
4 Mitchell, op. cit. 139. 5 Scott, op. cit. ii 384. 6 Ibid 386.
7 Ibid 414. 8 Ibid 415.
COMPANIES AND PARTNERSHIPS 209
the trade with Africa in the sixteenth century was carried on by
various partnerships or syndicates, to which privileges of exclusive
trade was granted.1 It was not till 1588 that the various syndicates
trading to Africa were incorporated.2 In the second place, state
needs helped to foster the growth of such companies. In England
the earliest of these needs was not, as in Italy, the need to
persuade its citizens to lend their money to the state, but the
need to organize foreign trade and to found colonies. In 1553
the Russia Company was founded as a joint stock company.3 It
was followed in 1581 by the Levant Company;4 in 1600 by the
East India Company ; 5 in 1670 by the Hudson's Bay Company ; 6
and in 1672 by the Royal African Company.7 All these
companies were founded primarily to develop foreign trade. Of
the companies founded primarily to colonize we get, among others
the Virginia Company, founded in 1609 ; 8 the Somers Islands or
the Bermuda Company, founded in 1612 ; 9 and the New England
Company, founded in 1620.10 It was not until the end ot the
seventeenth century that the joint stock principle was applied to
the financing of the government. We have seen that the Stuart
kings had privately borrowed from the bankers ; but that it was
not until the foundation of the Bank of England that the plan
of founding a bank as a joint stock company, and of giving it
privileges in return for a loan to the government, was adopted in
England.11
A large number of the joint stock companies, which were
founded in the sixteenth and early seventeenth centuries, dis-
appeared when changed conditions of trade and changed political
conditions made the joint stock organization no longer suitable.
During the latter part of the seventeenth century there was a
movement in favour of greater freedom of trade. Monopolistic
joint stock companies were successfully attacked. In 1605 the
Levant Company had adopted the regulated form which allowed
greater freedom of trade to individuals.12 The Russia Company
made a similar change in 1669 ; 13 and the fine for admission to the
company was lowered to £$ by a statute of 1698.14 Freedom of
trade to Africa had been practically conceded by another statute
of the previous year, which threw the trade open, subject to a
payment by traders of a 10 per cent, duty to the company for the
1 Scott, op. cit ii 3-9
2 Ibid 10 et seq. ; Select Charters of Trading Companies (S.S.) xlii et seq.
3 Scott, op. cit. ii 36 et. seq. * Ibid 83 et seq. s Ibid 92.
6 Ibid 229. » ibid 20. * Ibid 249, 250.
9 Ibid 260. 10 Ibid 302. 11 Above 186-187, 188.
12 Ibid 88. "Ibid 67.
14 10 William III. c. 6 § 2 ; for previous negotiations with this company, see
House of Lords MSS. (N.S.), iii, xiii, xiv nos. 1274, 1275.
VOL. VIII. — 14
210 THE LAW MERCHANT
maintenance of its fortifications.1 In fact, the maintenance of
fortifications, when this was necessary or possible, or the main-
tenance of consular agents, was the sole excuse for the continued
existence of these companies ; 2 and, when these duties were taken
over by the state, these companies naturally disappeared, or survived
only as social clubs.3 Similarly, the companies formed to colonize
gradually disappeared when the colonies which they founded had
become in substance political societies.4
On the other hand, the privileges given to some of these
companies, or the necessities or fortunes of their trade, secured to
some of them a longer life. The South Sea Company dragged
out a struggling existence till 1807 ; 5 and the faded splendours of
its South Sea House survived long enough to secure immortality
in the Essays of Elia. The Hudson's Bay Company served a
useful political purpose in checking French influence in Canada ; 6
and it obtained Parliamentary sanction by a Private Act in 1689.7
Its usefulness in this direction continued till the victory of Wolfe
in 1759. But even after that event some organization was neces-
sary to conduct a trade with Indian tribes ; and so, although it
was a monopolistic joint stock company, it survived ; 8 and, having
abandoned its monopolistic rights in 1869,9 it still survives as a
joint stock company. Similarly, the greatest of all these joint
stock companies — the East India Company — survived the bitter
attacks made upon it at the end of the seventeenth century,10 and
1 9 William III. c. 26 ; House of Lords MSS. (N.S.) iii no. 1292 ; see Cunning-
ham, Industry and Commerce ii 276, 277, for its subsequent history ; it was finally
dissolved by 1 and 2 George IV. c. 28.
2 Cunningham, op. cit. ii 252, 284 ; Select Charters of Trading Companies (S.S.)
xli, xlii ; cp. Acts of the Privy Council (1613-1614) 97-98 for a rebuke to the merchants
trading to Spain and Portugal for their " uncurteous and froward dealing " to the
consul appointed by the king ; see ibid 397 for a dispute between the Turkey merchants
and the consul whom the Turkey merchants paid.
3 Dr. Scott (op. cit. ii 69) tells us that the Russia Company " continued to exist as
a trading body till the end of the eighteenth century, and as late as 1865 furnished a
return to Parliament of certain dues it collected." Till the Russian Revolution it
possessed its own parish church in Moscow and its own charitable institutions,
Quarterly Review, July 1925, 153.
4 See e.g. Dr. Scott's remarks on the dissolution of the Somers Islands Company
in 1683, "bid ii 297 ; and cp. ibid 314, 315, as to the arrangements made by the
colonists with the Massachusetts Bay Company ; we can see an analogous sequence of
events in progress in America in the dissatisfaction felt at the conduct of the govern-
ment of the proprietary colonies, see House of Lords MSS. ii 444, iv 314, 463. A
modern instance of the workings of the same process will be found in the events which
led to the case of In re Southern Rhodesia [1919] A.C. 211 ; Lord Sumner's extremely
able and interesting judgment gives us a lucid account of the manner in which this
development has taken place in S. Africa — an account which is as interesting to the
student of political science as to the constitutional lawyer.
8 Cambridge Modern History vi 181, 182.
6 Cunningham, op. cit. ii 279. 7 Statutes of the Realm (R.C.) vi 179.
8 Cunningham, op. cit. ii 283, 284.
9 Ibid 279 n. 4 ; Select Charters of Trading Companies (S.S.) xc.
10 See Scott, op. cit. ii 135-174, for an account of the troubled history of the com-
pany from 1670-1708 ; for the inquiry in 1695 into the bribery which the company had
used to get its charter, see House of Lords MSS. (N.S.) i nos. 929, 930.
COMPANIES AND PARTNERSHIPS 211
continued to exist till the middle of the last century, mainly
because it was a body whose governmental functions were becom-
ing progressive!}' more important than its commercial functions.
We have seen that the minor governmental functions performed by
some of these companies had led to their survival in a regulated
form.1 The increasing empire which the East India Company
was acquiring made it necessary that the affairs of the society
should continue to be administered on a joint stock basis.2
But though some of these earlier joint stock companies had
disappeared or had changed their form by the end of this century,
it was quite clear that the joint stock principle had come to stay.
It had become quite clear that industrial enterprizes of many
varied kinds could be initiated successfully on a joint stock basis ;
and an enormous extension was given to the joint stock principle
when the state used it to borrow money. In 1694, in return for
money lent to it by a group of persons, the state incorporated
this group as a joint stock company under the name of the
Governor and Company of the Bank of England, and empowered
it to conduct banking business. Thus the capital subscribed,
bearing the interest promised by the state, was converted into a
joint stock for the conduct of a commercial venture. The under-
lying idea, as Dr. Scott has pointed out, was " the utilization of
capital lent to the state as ' a fund of credit ' on which loans
could be raised by an incorporated body for its trading opera-
tions."3 But this principle was capable of development* If the
credit of the state could be converted into a fund which could be
1 Above 209-210.
2 See House of Lords MSS. (N.S.) ii 29-56 for a discussion in 1695 as to the
comparative merits of organizing the company on a regulated or a joint stock basis.
3 Op. cit, i 389 ; as Dr. Scott says (ibid 396, 397), "in order to grasp the full
import of the situation, it is necessary to remember that the extensive utilization of
credit was new, and that contemporary observers noticed that, by this agency, business
had been immensely extended, and the results achieved were viewed with amazement.
. . . The idea of a fund of credit was described as * a mine of gold,' or as * realized
alchemy.' . . . Everywhere when men considered how enterprizes had been started
and had been carried on successfully by the using twice over of the same wealth, it
came to be thought that the process was capable of infinite extension.
* " In Great Britain, since the Revolution, this ideal had been gathering importance.
In addition to the land bank schemes of 1695, the finances of every important com-
pany had been determined by it. Not only was all the capital subscribed by the
members of the Bank of England lent to the State, but, in addition, a further sum was
taken from the deposits of customers. Thus none of the share capital was available
for the business of banking, and the loan made by the Bank to the State became in
fact a fund of credit, to support the operations of the institution . . . the engrafted
stock of the Bank of England was formed by the valuing of Government obligations,
which were selling at the time at a discount of about 35 per cent., at their nominal
value. Apparently the operation was justified, for those who converted their tallies
into engrafted stock secured a large profit by the transaction. Similarly the whole
influence of Parliament, as affecting the East India trade, tended again and again to
force this branch of foreign commerce to depend solely on capital lent to the State.
. . . On three different occasions within the space of eleven years the East India trade
was compelled by the state to rely on a fund of credit," Scott, op. cit. i 397-398.
212 THE LAW MERCHANT
thus profitably used, why should not a company be formed to take
over the whole of the state debt ? This company, if given trading
privileges, might be expected to make large profits. The state
creditors would accept its shares instead of their holdings in the
state debt, and the company could afford to pay the state hand-
somely for its privileges. Thus in time the state debt might be
redeemed. Some such ideas as these, coupled with schemes still
more ambitious, inspired the grandiose schemes of John Law ; l
and it was these ideas which led to the foundation of the South
Sea Company.2
In 1 7 1 1 , when the South Sea Company was originally founded,
there was a floating debt of more than nine millions. It was de-
termined to incorporate these creditors, and to give them the
monopoly of the trade to South America. The government
undertook to pay interest on this debt at 6 per cent., and it was
to be redeemable after 1716.3 The company had some success,
and in 17 19 a large extension of this principle was proposed.
The company was to take over the whole of the National Debt,
except those parts of it owed to the Bank of England and the
East India Company. The amount to be thus taken over was
some thirty-one millions. The creditors were to be bought out,
or to exchange their holdings for the company's stock. The
government was to gain, because the debt was thereby made re-
deemable, and the interest upon it was to be reduced from 5 to 4
per cent after 1727.4 The company considered that the capital
lent to the state, the interest upon which afforded a large revenue
to the company, was a basis upon which immense sums might be
borrowed to extend indefinitely the trade of the company. "Not
only were there alluring prospects from the South Sea trade, but
the mere fact of so large a working capital, under prudent organiz-
ation, would render the greatest enterprises possible. Further, the
close relations of the company and the Government must not be
lost sight of; so that, in any venture which required the assistance
of the state, the most powerful support might be counted on." 5
Naturally, the possession of such privileges was considered to be
worth paying for. The directors of the company, in the first
instance, offered to pay the government ^3,500,000. But the
Bank of England made a higher offer. Eventually the company,
unhappily for itself and happily for the Bank,6 outbid the Bank
1 Cambridge Modern History vi 169-176 ; cp. Scott, op. cit. i 398.
2 " The crisis of 1719-1720 constitutes simply the attempt to realise an un-
conscious ideal of the indefinite expansibility of a fund of credit," ibid 397.
3 Cambridge Modern History vi 177, 178.
4 Ibid 178 ; cp. Scott, op. cit. i 408 5 Ibid iii 307.
6 Ibid i 432.
COMPANIES AND PARTNERSHIPS 213
by an offer of £7,500,000, and by bribes offered to and accepted
by members of the government and the Legislature.1
By the end of the seventeenth century, therefore, it was
recognized that the joint stock company was a valuable instrument
for the promotion and working of new industries, and for the
mobilization of national credit. On the other hand, it had, as we
shall see, also become clear that it could be used to perpetrate
gross frauds upon the public, and to encourage wild speculation
and gambling in stock and shares. These new phenomena
naturally had important results both commercial and legal. With
these results I must now deal.
(2) The commercial and legal consequences of the rise of the
joint stock company.
The joint stock company met obvious needs. It gave to
capitalists an opportunity for investment ; and it made available
much capital which would not otherwise have been employed in
trade.2 Then, too, it interested all the wealthier classes in trading
ventures, and so it tended to make the merchants a less exclusive
class ; and this mixture of the mercantile and non-mercantile
element in the management of the joint stock company conduced,
as Dr. Scott has pointed out,3 to the success of many of the early
joint stock ventures. " In foreign trade or colonising much more
than the specialised information of the merchant was required.
In addition, there was needed something of the imagination of the
pioneer and of the diplomacy of the statesman . . . thus the
admission of a strong non-mercantile element by the joint stock
company, not only was advantageous in increasing the supply of
capital, but also in strengthening its organisation. From this
point of view their strength lay not so much perhaps in the mere
introduction of capitalists who were not actually in trade, but in
the union of these in one body with the mercantile classes.
Either in isolation was imperfect. The short-sighted views of
some of the regulated companies, and the lamentable ignorance
displayed in the equipment of the Darien Company, are cases in
point Whereas the combination of the specific and detailed
knowledge of the traders, with the broad outlook of the man of
affairs, tended towards a greater efficiency." That this combina-
tion was so successfully made in England is partly due to the
1 As to the evidence for this bribery, which came out in consequence of the
Parliamentary inquiry, see Scott, op. cit. iii 331-346 ; the committee of secrecy re-
ported that, while the scheme was pending, a small committee of directors was
authorized to facilitate the passing of the measure, and that they disbursed secretly
£Ii259,325i ibid 315, citing Journals of the House of Commons xix 425-451 ; the
East India Company had resorted to similar methods, above 210 n. 10.
3 Scott, op. cit. i 442. 3 Ibid 443, 444.
214 THE LAW MERCHANT
fact that the mercantile classes had never been so separate from
other classes of the community as elsewhere ; and this again was
due in part to the fact that mercantile law was becoming part of
the common law, but chiefly to the absence of class barriers which
were insurmountable.1
In the last decade of the seventeenth century, dealings in
shares of these companies were so numerous that John Houghton
began, in 1692, to publish a paper in which the prices of stock
and shares were recorded.2 We are not, therefore, surprised to
learn that "the mechanism of Stock Exchange dealings had been
developed " ; that " time bargains were well understood, and ' put
and call ' options were not unknown " ; and that " the business of
a stock broker was specialised, and a tariff of charges had been
established."3 The stock and share market was beginning to be
familiar with its alternate booms and panics. Macaulay's account
of the boom of 1 692-1695 is classical.4 Bagehot,5 who was a
banker and an authority on such matters, said of it, "You will
not find the cause of panics so accurately explained in the dryest
of political economists — in the Scotch M'Culloch."
It was naturally in the years of reaction which followed on a
boom, that the shady side of joint stock enterprise forced itself on
the attention of the public. A report of the Commissioners of
Trade, published in 1696, accused the dealers in shares of rigging
the market, and the promoters of companies of fraudulently raising
the price of shares by making false statements as to the prospects
of the company, and then selling their holdings at a high price.0
The report was, perhaps, too sweeping in its condemnation,7
though it is probable that there were individual cases in which
these or similar frauds had been practised. The Legislature, by
an act of 1696-1697,8 attempted to regulate brokers, and to check
gambling by means of time bargains ; but nothing was done as
1 See vol. iv 402-407 ; as Dr. Scott says, op. cit. i 444, " this happy result is to
be attributed in no small degree to the relation of classes in England, where members
of different social grades could work together with the minimum of friction, and both
could bear adversity with fortitude."
2 It is called A Collection for the Improvement of Husbandry and Trade; see
ibid 329, for a description.
3 Ibid 345. 4 History of England chap. xix.
5 Literary Studies ii 250.
6 Journals of the House of Commons xi 595: "The pernicious art of stock
jobbing hath of late so perverted the end and design of companies and corporations
erected for the introducing or carrying on of manufactures to the private profit of the
first projectors, that the privileges granted to them have commonly been made no
other use of by the first procurers and subscribers but to sell them with advantage to
ignorant men, drawn in by the reputation, falsely raised and artfully spread, concern-
ing the thriving state of their stock. Thus, the first undertakers getting quit of the
company by selling their shares for much more than they are really worth to men
allured by the noise of great profit, the management of that trade and stock comes to
fall into unskilful hands."
7 Scott, op. cit. i 358-360. 88 and 9 William III. c. 32.
COMPANIES AND PARTNERSHIPS 215
yet to fetter the activity of the promoter. Probably both the
Legislature and the lawyers were puzzled. The phenomenon of
speculation in the shares of joint stock companies was, as a com-
mercial problem, new to the Legislature, and, as a legal problem,
it was equally new to the lawyers. This fact we shall appreciate
if we look at the extreme poverty of the ascertained rules of law
applicable to commercial societies, whether corporate or unincor-
porated
In the first place, the line between corporate and unincorporate
societies was generally disregarded by the projectors of companies.
Bodies of persons joined together to form a society, which differed
from an incorporated joint stock company in no particular, except
in the absence of a charter.1 In the second place, the powers of
an incorporated society acting under a charter were by no means
clearly defined. Once having got a charter, a society considered
itself free to undertake business projects wholly outside the busi-
ness for which it was incorporated.2 In 1691 the York Buildings
Company was incorporated to supply water to London. But in
1 7 1 9 it sold its interest in the waterworks, and began to deal in
lands forfeited by the Jacobites in consequence of the rising of
1715.3 This idea, that the activities of an incorporated society
were not limited by the terms of its charter, led to a trade in
charters. Societies which wished to get the privilege of incorpora-
tion at small expense, bought up the charter of a company which
had ceased to trade, and used it to carry on their own businesses.
Thus, first a company of merchants who proposed to lend money
on land in Ireland, and then the banking partnership of Turner
Casswall and Sawbridge got possession of the charter of a company
formed in 1 69 1 to manufacture hollow sword blades. This bank-
ing partnership traded under the name of the Sword Blade Com-
pany. They acted as the bankers of the South Sea Company,
issued " sword blade notes " on " sword blade bonds," and were
eventually proved, inter alia, to have falsified their books, and to
have issued fictitious notes to cover presents of South Sea stock to
high officials.4 Similarly, an insurance company made use of the
1 Scott, op. cit. i 337, 338, citing Houghton, Collections, No. 98, 15th June 1694 ;
as Dr. Scott says, probably the preoccupation of the government in the war allowed
these practices to escape notice ; " as it was, no obstacle was placed in the way of
those who wished to start any enterprise by means of a joint stock, and it was left to
the founders of each venture to prescribe the constitution under which it was to work " ;
see the preamble to the Act of 1719, 6 George I. c. 18 § 18, below 220.
2 For the legal theory at the back of this idea see chap, vi § 2.
3 Select Charters of Trading Companies (S.S.) cxxvi, cxxvii ; Scott, op. cit. iii
418-434.
4 Select Charters of Trading Companies (S.S.) cxiii, cxiv ; Scott, op. cit. iii 435-
442 ; the best account of the doings of this banking partnership is contained in a note
to the Preface of vol. lxxi of the Revised Reports at pp. viii-ix.
216 THE LAW MERCHANT
charters of the Mines Royal and the Mineral and Battery Works.1
The South Sea Company, in 1720, instigated proceedings against
some of these companies, with the result that their charters were
forfeited ; 2 and it was this very rash, and, in the circumstances,
impudent action on the part of that company, which began the
panic which ruined it.3 These proceedings established the rule
that the activities of a company were limited by the terms of its
charter ; and that it could only use the powers conferred by its
charter in furtherance of the business for the carrying on of which
it had been incorporated.4 But it would be difficult to point to
any previous authority in which this elementary principle had been
precisely laid down ; and, in fact, in the Parliamentary inquiries of
this period, the directors of some of these companies cited in sup-
port of their proceedings the opinions of eminent counsel whom
they had consulted.5 In the third place, accounts were often kept
in a very irregular manner ; 6 and as " the idea of capital as some-
thing which should be kept intact was unknown," 7 no very clear
notions prevailed as to what parts of the gains of a company were
properly divisible as profit. In fact, " the payment of dividends
1 Scott, op. cit. iii 398.
2 Ibid i 425-427; as Dr. Scott says (ibid iii 325), " while the South Sea Company
was within its rights in raising this question, its action was most injudicious. ... It
might well have been argued that since the directors, who professed themselves ag-
grieved by companies acting under obsolete charters, employed as their banker an as-
sociation that worked under a grant for the making of hollow sword blades, they had
condoned the offence. Indeed, when one considers the many indirect practices of the
directors, both in obtaining and applying their own Act of 1720, it was the height of
effrontery to have raised the question."
3 " It may have been some consolation to the companies attacked by the South Sea
directors to know that the stroke directed against them had recoiled with crushing force
upon the aggressors. Before the issue of the writ South Sea stock had stood at 850, a
month later it was as low as 390," ibid i 427.
4 This is made quite clear by some opinions of the Attorney-General given in 1719,
which are cited in the Journals of the House of Commons xix at pp. 345 and 349. In
the first of these opinions he said : " The transactions stated in the report to have been
carried on for the insurance of ships and merchandise under colour or pretence of the
charters aforesaid [the Mines Royal and the Mineral and Battery Works] and in the
names of the supposed corporations are illegal and unwarrantable . . . those charters,
being granted for the particular ends specified and limited therein, not giving sufficient
authority to the corporations thereby erected, if they were existing, to carry on a busi-
ness or employment of so publick a nature as that of insurance of ships and merchan-
dise, and which is wholly foreign to the design of those incorporations. " In the second
of these opinions, dealing with the land speculations of the York Buildings Company,
he said : " The corporation created by the Act of Parliament above recited was so in-
stituted for the particular purposes therein specified ; and though the power therein
given to purchase lands is not, by express words, restrained to any particular annual
value, yet by a reasonable construction, the exercise of that power ought to be governed
and limited by the purposes for which the corporation was erected."
5 Sir John Williams deposed "that they had consulted and had the opinion of
several eminent counsel that they might insure ships by virtue of the charters for the
Mines Royal [and] the Mineral and Battery Works; and that two of the said counsel
are Sir Robert Raymond and Mr. Reeves," Journals of the House of Commons xix
344 ; see chap, vi § 2 for an explanation of this view.
6 Scott, op. cit. i 158, 159, 7 Ibid 60.
COMPANIES AND PARTNERSHIPS 217
out of capital was quite usual."1 In the fourth place, there was
no clear law as to the manner in which claims against a company,
which had been dissolved or had amalgamated with another com-
pany, should be settled. Persons who had claims against the dis-
solved or amalgamated company often found it difficult to realize
them.2
Nor was the law as to unincorporated partnerships in a much
better state. We shall see that the courts were beginning to arrive
at some rules as to the order in which the joint and separate pro-
perty of the partners could be made liable for the debts of the firm,
and the debts of the individual partner, in a case where one of the
partners was bankrupt3 It was well recognized that the maxim
jus accrescendi inter mercatores locum non habet applied to partners ; 4
so that, though a surviving partner could sue a partnership debtor
or be sued by a partnership creditor without joining the executor
of the deceased partner,5 the executor was entitled to the deceased's
share of the partnership assets,6 and was liable to pay the deceased
partner's share of the partnership debts.7 It was also well recog-
nized that the partners were agents for one another, and that, in
matters falling within the scope of the partnership business, they
could bind one another.8 The convenience of the machinery of
the court of Chancery for the taking of accounts, the common law
rule that actions between the partners and the firm or between two
firms having a common membership were impossible,9 the possibility
of getting discovery,10 and injunctions against anticipated breaches
1 Op. cit. Dr. Scott says that in the sixteenth century " there was no need of a term
to describe the whole outiay. As yet the company stood in this respect too near the
partnership for the want of a capital account to be felt. The idea of capital as some-
thing which should be kept intact was unknown, and very much later the payment of
dividends out of capital was quite usual. In fact . . . the temporary joint stock made
this method of procedure unavoidable. As the goods brought home were sold the ad-
venturers received payments pro rata ; and when the voyage had been a success they
obtained more than they had paid in, if it was a failure they might get less."
2 Acts of the Privy Council (1613-1614) 586-587 — the Merchant Adventurers, hav-
ing been requested to surrender their charter, said they were willing to do so, but
" whereas by this resignacion of our charters, wee shalbe disenabled to recover any
debtes due unto the bodie of our Company, and thereby want meanes to pay what wee
owe to other men, wee therefore humbly pray your honours that such power and
authority may be given us, whereby wee may not only collect such sommes as are
and shalbe due to the body, but also make a cessement upon the now Bretheren of this
Company for the better satisfaction of those debtes, which are owing unto others by the
same" ; S.P. Dom. (1676-1677) 34, 35 — a petition to the Council by an agent of the
Royal Adventurers Company, which had sold its assets to the Royal Africa Company,
stating that, " though the members of the new company consist mostly of persons who
were members of the old company," he cannot get his claims satisfied.
3 Below 242-243. 4Jeffereys v. Small (1683) 1 Vern. 217.
'Martin v. Crompe (169S) 1 Ld. Raym. 340; a principle apparently applied also
to co-factors, Holstcomb v. Rivers (1669) 1 Eq. Cas. Ab. 5.
8 Ibid. 1 Lane v. Williams (1693) 2 Vern. 292.
9 Lane v. Williams (1693) 2 Vern. 277 ; Pinkney v. Hill (1697) 1 Ld. Raym. 175.
9 Above 202 n. 5.
10 Estwick v. Conningsby (1682) 1 Vern. 118.
218 THE LAW MERCHANT
of the partnership agreement,1 were all beginning to bring partner-
ship cases under the jurisdiction of equity. But the court of
Chancery had as yet only just begun to lay the foundations of the
modern law.
Obviously this state of the law tended to increase the risk of
fraud, because it left the promoters, directors, or members of
commercial societies corporate or unincorporate, and the dealers
in their shares, very free to act as they pleased. Obviously, also,
these risks were very much increased, when the state gave an
impetus to the joint company, by using it as a means to borrow
money from its subjects.
We have seen that the state was prepared to incorporate its
creditors, and to give to the company so incorporated certain
privileges in return for a loan ; 2 and that this was the basis upon
which the Bank of England was founded.3 But we have seen
that later this idea was extended. The South Sea Company was
prepared to take over the greater part of the National Debt in
return for trading privileges, and to pay the state handsomely for
the opportunity of doing so, in expectation that the capital and
revenue thus acquired would be a " fund of credit," which would
enable it to conduct an enormous trade, and earn correspondingly
enormous profits.4 Now, no doubt the growth of the system of
lending money to the state had many and obvious advantages.
It gave to the individual a safe form of investment. It increased
the stability of the state, because it gave to a large number of its
citizens a direct pecuniary interest in that stability — in fact, it had
an effect upon the stability of the state precisely similar to the
effect which the distribution of the spoils of the monasteries had
in Henry VIlI.'s reign upon the stability of the Reformation
settlement.5 On the other hand, the methods adopted to raise the
money, the bribery which accompanied the negotiations with the
South Sea Company, and the manipulation of the existing debt
under the influence of exaggerated ideas of what could be accom-
plished by means of a " fund of credit," gave such an impetus to
rash speculation that the boom of 171 9-1 720, and the ensuing
panic, surpassed anything that had yet been known in the financial
world. All classes followed the example of the Government,6 and
1 Spence, Equitable Jurisdiction i 666. 2 Above 188-1S9.
3 Ibid. 4 Above 212-213. 5 Vol. iv 37.
6 J)r. Scott (op. cit. iii 351, 352) points out that, in the case of the South Sea
Company, the state had, through the connivance of responsible ministers, practically
sanctioned this gamble. As he says : " Whatever may be one's judgment on the
ethics of modern speculation, in the seventeenth and eighteenth centuries, the State
not only encouraged but often represented such adventures of capital as a part of the
duty of a patriot. In this connection it is only necessary to refer to the advertise-
ment of the State lotteries of the period. There is abundant testimony that any who
spoke or wrote against the company when the fever was at its height were held to be
COMPANIES AND PARTNERSHIPS 219
tried to find a short-cut to riches by investing in companies which
promised immediate wealth on easy terms; and the promoters
and the directors of companies, unrestrained by any effective rules
of law, were left practically free to gull the public as they pleased.
In order to remedy these obvious evils, for which the Legislature
itself was largely responsible, it passed a measure which influenced
for more than a century the history of commercial societies in this
country.
(3) The Bubble Act and its effect on the development of
company and partnership law.
After considering a good deal of evidence as to the promotion
and administration of many of the companies which had sprung
up during this period of speculation, the House of Commons came
to the following resolution : l — " That for some time past several
large subscriptions having been made by great numbers of persons
in the city of London to carry on public undertakings, upon which
the subscribers have paid in small proportions of their respective
subscriptions, though amounting on the whole to great sums of
money ; and that the subscribers having acted as corporate bodies
without any legal authority for their so doing, and thereby drawn
in several unwary persons with unwarrantable undertakings, the
said practices manifestly tend to the prejudices of the public trade
and commerce of the kingdom." In other words, the House of
Commons neglected the deeper causes of the panic — the encourage-
ment to speculation given by the Government's connection with the
South Sea scheme,2 the corruption of the Ministry and of members
of the Legislature,3 the extravagant notions entertained of the
powers of a fund of credit,4 the facilities for fraud and negligence
given by the absence of any sort of legal control over the activities
of promoters and directers ; 5 and they concentrated their attention
on .one cause only — the extension of the joint stock system by the
manner in which societies, which were not incorporated, usurped
corporate form, and the consequent growth of the "pernicious art
of stock-jobbing." 6 What was needed was an Act which made it
easy for joint stock societies to adopt a corporate form, and, at the
disaffected. So that, so far from the speculator being blamed for his rashness at this
time, it is to be remembered that all information that would enlighten him was
discouraged, while he was overwhelmed, and too often carried away, by data designed
to mislead."
1 Journals of the House of Commons xix 351.
2 Above 218 n. 6. 3 Above 213.
4 Above 211-212 ; as Dr. Scott says (op. cit. i 437) : " Politicians sometimes find
a remedy for their mistakes, but they rarely have the candour to make a public
recantation of the principles which caused those mistakes to be made. Everyone at
the end of 1720 blamed the mechanism which had shown the disorder of credit ; no
one seized upon the fallacy that had been the true cause of the distemper."
5 Above 215-217. 6Scott, op. cit. i. 436, 437.
220 THE LAW MERCHANT
same time, safeguarded both the shareholders in such societies
and the public against frauds and negligence in their promotion
and management. What was passed was an Act which deliber-
ately made it difficult for joint stock societies to assume a corporate
form, and contained no rules at all for the conduct of such societies,
if, and when, they assumed it.
The Act * began by repeating in substance the resolution to
which the House of Commons had come. It set out the evils
which had arisen from the starting of dangerous undertakings on
a joint stock basis with a transferable stock, from the unlawful
assumption of corporate form, and from the trade in charters
which had recently been carried on.2 It then condemned as
illegal all such undertakings to the prejudice of trade, and sub-
scriptions, assignments, transfers, and other things for furthering
such undertakings ; the acting or presuming to act as a corporate
body ; the raising of a transferable stock, or the assigning of such
stock without authority either by Act of Parliament or by charter ;
acting under any charter formerly granted by the crown for pur-
poses other than those expressed in the charter, or under an obsolete
or forfeited charter.3 It was provided that these acts should be
deemed to be public nuisances,4 that the persons guilty thereof
should incur the penalties provided by the statute of Praemunire,5
that merchants injured by them could sue for treble damages,6
and that brokers dealing in the shares of such undertakings should
be liable to a penality of .£500. 7 The Act was not to extend to
undertakings established before June 24, 171 8 — they were to
be left to the common law.8 Henceforth there was to be no
confusion between a corporate and a non-corporate commercial
society. Henceforth the privilege of possessing a transferable
stock, which brokers or jobblers could manipulate, was to belong-
only to a corporate society.
Nor were these results wholly objectionable. It is not good
for the state that large societies which are not corporations, and
yet assume to act as corporations, should be allowed to exist.
Such societies are much more difficult to regulate than a corpora-
tion. A corporation has received a privilege from the state, and,
in return for that privilege, it can be submitted to such rules as
may seem necessary to protect both its members and the public.
Its existence is well known, and inquiries can easily be made into
1 6 George I. c. 18 §§ 18-22 ; for the leading decisions on the Act, see Lindley,
Law of Companies (5th ed.) 130-132 ; see also R. v. Webb (181 1) 14 East 406.
2 § 18 preamble. 3 § 18. 4 § 19.
BIbid. 6§20. 7§2I.
8§ 22. This, of course, would make corporations trading nnder obsolete charters,
or trading in a manner not allowed by their charters, still liable to legal proceedings,
above 215-216 ; whether at common law societies with a transferable stock were illegal
is more doubtful, below 221.
COMPANIES AND PARTNERSHIPS 221
its conduct. It is difficult to regulate an unincorporated society,
because, if it is proposed to subject it to legal liability, it is apt to
dissolve into its component parts, and leave the injured person to
the impossible remedy of suing a large number of persons who,
individually, are not worth suing ; nor is it easy to ascertain the
manner in which its affairs are conducted. What was objection-
able in the Act was the hindrances which it threw in the way of
the assumption of a corporate form. The Act, as Dr. Scott has
pointed out, stopped the development of the joint stock system.
«' It became both difficult and costly to obtain the necessary legal
authorisation for the starting of a new enterprise needing a large
capital. In one that might have been established with a moderate
outlay, which for any reason it was desirable to collect from a
large number of persons, the trouble and cost proved prohibitive.
Therefore, for upwards of a century, industry was deprived of the
advantages of a certain amount of capital which would otherwise
have been available."1
When the Act was repealed in 1825 2 interesting questions
arose, analogous to those which arose after the repeal of the
Combination Acts,3 as to whether the offences created by the Act
were also offences at common law, and in consequence unaffected
by the repealing Act. On this point there was a considerable
divergence of judicial opinion, because the common law had, as
we have seen,4 no very definite rules upon the subject. The cases
of the earlier part of the nineteenth century decided that though,
possibly, the assumption of the status of a corporation without
authority,5 and certainly the formation of a company which
attempted to defraud the public, or otherwise of a dangerous or
mischievous character, were illegal acts ; 6 the mere formation of a
joint stock company " with a transferable stock 8 was not illegal ;
and this view is probably historically correct9
1 Op. cit. i 438. 2 4 George IV. a 94.
J Vol. ii 470-471. * Above 215-217.
5 Duvergier v. Fellows (1828) 5 Bing. at p. 267 ; and cp. Harrison v. Heathorn,
{1845) 6 Man. and Gr. at pp. 137, 138 ; but (ibid at p. 107) Tindal C.J. seems to doubt
whether this was an offence at common law ; cp. Lindley, Law of Companies (5th
ed.) 131 n. c.
6Blundell v. Winsor (1837) 8 Sim. 601, as explained by In re The Mexican
and South American Co. (1859) 27 Beav. at pp. 481, 482 ; Lindley, op. cit 133.
7 Walburn v. Ingilby (1833) 1 My. and K. at p. 76.
8 Garrard v. Hardey (1843) 5 Man. and Gr. 471; Harrison v. Heathorn (1843)
6 Man. and Gr. 81 ; but it appears that Lord Eldon thought otherwise ; see Kinder
v. Taylor, cited in th« argument of Duvergier v. Fellows (1828) 5 Bing. at pp. 261,
262.
9 As Tindal, C.J., said in Harrison v. Heathorn, at p. 140: "The raising of
transferable shares of the stock of a company can hardly be said to be of itself an
offence at common law ; no instance of an indictment at common law for such an
offence can be shown, the raising of stocks with transferable shares being, indeed, a
modern proceeding ; and the very great particularity with which it is described in the
statute seems to show that it was an offence created by the statute only." It would
222 THE LAW MERCHANT
The history of commercial societies after the passing of the
Bubble Act, the causes which led to its repeal, the rise of the
limited company, and the enormous development of the joint stock
principle which ensued, belong to the modern history of this branch
of commercial law.
We must now turn to the law of agency, the development of
which was a necessary consequence of the rise, both of the modern
mechanism of negotiable instruments and banking, and of these
commercial societies corporate and unincorporate.
§ 5. Agency
Primitive systems of law are ignorant of a law of agency. The
parties to acts in the law must execute them in person.1 But so
soon as the law begins to develop, this primitive principle begins
to yield at different points to practical necessities. The Salman
was an agent for a particular purpose — the transference of property
in accordance with the directions which he had received.2 In later
law the feoffee to uses was an agent for a somewhat analogous
purpose.3 The attorney was an agent for purposes of litigation ; 4
and the clauses in commercial and other documents, which allowed
the bearer or the creditor's nominee to sue, were designed to evade
the strict rules of primitive law as to the employment of agents
for this purpose.5
Gradually the common law came to recognize a law of agency
both for the acquisition of chattels personal, and for the making
of contracts.
The development of the actions of detinue and trespass on the
case gave the beneficiary an adequate remedy, when chattels
personal had been conveyed to another person to his use.6 On the
other hand, though a man could appoint an attorney or agent to
convey or receive hereditaments or chattels real, he had no adequate
remedy against a person who held such property on his account,
until the rise of the use and the equitable trust. 7
We begin to see the rise of agents for the purpose of contract
at an early date. At first these agents were found chiefly in the
seem that a transferable share, being a chose in action, would have been as
impossible at common law as a limitation of the liability of the shareholders, see
Walburn v. Ingilby (1833) 1 My. and K. at p. 76 ; but that neither the attempt to
make the share transferable nor the attempt to limit liability would make the
association illegal ; on the whole subject see Lindley, op. cit. 132-135.
1 " Dans le tres ancien droit, les actes juridiques doivent etre accomplis par
rint^resse" lui-meme ; c'est la une consequence de leur caractere formaliste ; les
solennit£s ou les paroles qu'ils supposent impliquent son intervention ; elles n'auraient
pas de sens si elles gmanaient d'un tiers," Brissaud, op. cit. ii 1442.
2 Vol. iii 563-565 ; vol. iv 410-412. 3 Ibid 411.
4 Vol. ii 315-317. 6 Above 116-117.
6 Vol. iii 425-426, 428, 443-444 ; above 88. 7 Vol. iv 413-414.
AGENCY 223
higher ranks of society and in public law. " The king ever since
John's day has been issuing letters of credit empowering his agents
to borrow money, and to promise repayment in his name. A great
prelate will sometimes do the like. . . . Among the clergy the
idea of procuration was striking root ; it was beginning to bear
fruit in the domain of the public law ; the elected knights and
burgesses must bring with them to parliament 'full powers' for
the representation of the shires and boroughs." l But in the early
thirteenth century the appointment of agents for this purpose was
not common ; and it would seem that agents informally appointed
or appointed by implication were hardly recognized.2 However, it
was not long before it gained recognition ; and the fact that the
practice spread somewhat readily in the course of the thirteenth
century, is due to the two allied influences of mercantile necessity
and the canon law. From an early date the records of the fair
courts show that some sort of commercial agency must perforce be
recognized ; 3 and, during the fourteenth and fifteenth centuries, the
development of trading companies, which must necessarily act
through agents, helped its further development.4 All through the
Middle Ages the ideas of the canon law in this, as in other branches
of commercial law,5 made for its easier recognition. As Maitland
has shown, "the legal deadness of the monk favoured the growth
of a law of agency " ; 6 and the corporate bodies of monks, like the
corporate bodies of merchants, needed agents. Thus the canon
law acquired some rules upon this branch of the law ; and the
merchants could borrow and apply these rules to the agents whom
they employed7
Thus, in the course of the mediaeval period, the ideas that
it is possible to make a contract through an agent, and that it
is possible for a man to ratify a contract made on his behalf
through an agent, were fully recognized by the common law.8
The common law also recognized that on such contracts the
principal and not the agent was liable,9 not only when the agent
had express authority to do the particular act, but also when he
1 P. and M. ii 225.
* Bracton's Note Book, case 873, cited P. and M. ii 225 n. 6.
3 Vol. v m-112. « Above 193 seqq.
5Vol. v 80-83. . m «P. and M. ii 226 n. 1.
7 Bnssaud, op. tit. ii 1444, «« la situation des procureurs aux negoces (par opposition
aux procureuers aux causes, proces) est reglementee par voie d'emprunt aux regies du
droit romain et du droit canon (Sexte 5, 12, 68, 72 (3))."
« See vol. iii 528-530 for the application of these' principles to the liability of the
husband for the wife's debts ; and see generally Street, Foundations of Legal Liability
n 446-448. ° J
9Y.B. 11 Hy. IV. Mich. pi. 53 per Thirning; and this rule was followed by
equity, see Graham v. Stamper (1692) as reported in 1 Eq. Cas. Ab. 308-^00 ; cp.
2 Vern. 146, and the note.
224 THE LAW MERCHANT
acted within the scope of an authority to do acts of a particular
kind.1
During the sixteenth and seventeenth centuries it was begin-
ning to be seen that certain classes of agents were more closely
connected with commercial law. In the books of mercantile law
written by merchants or civilians, it is clear that two chief classes
of mercantile agents are emerging — brokers and factors.
Brokers, Malynes tells us, were intermediaries, through whom
two persons were brought into contractual relations. They had
been long known in the city of London, where provisions had
been made for their regulation.2 He approves the practice of
dealing through brokers — thereby " many differences are prevented,
which might arise between man and man in their verbal contracts ;
for the testimony of a sworn broker and his book is sufficient to
end the same. And moreover it is many times a cause that
factors and servants deal more faithfully for their masters in
buying and selling of all commodities, or in moneys by exchange,
knowing their evidence is extant against them." 3 But he says that
brokers were seldom used in England4 — a statement which is
probably an exaggeration, at any rate in London. At the end
of the seventeenth century, however, they were well enough
known ; and it is clear that a distinct class of brokers, dealing in
bills of exchange and in stocks and shares, were beginning to
emerge.5 Public opinion credited these brokers with making
combinations and confederacies to raise or lower the price of
stock ; 6 and though perhaps more blame was placed upon their
^.B. 8 Ed. IV. Mich. pi. 9 (p. n), "si jeo command mon servant d'achater
certein biens, ou jeo face un home mon factor et mon atturney pur achater marchandise
etc., en ce cas s'il achat marchandise d'un home, jeo sera charge per tiel contract,
comment que les biens ne unques veigue en maines, et comment que jeo n'ay unques
notice de ceo, et le cause est pur ce que jeo don tiel power a eux, et ce fuist mon foly
de issint faire," per Pigot ; cp. 27 Ass. p. 133 pi. 5 ; Doctor and Student Bk. II.
c. 42 f. 137a.
2 Vol. ii 387 ; there are many cases turning upon the misdeeds of those sworn
brokers in the early Rolls of Mayor's Court which run from 1298-1307, see pp. 28,
32-33, and complaints of persons acting as brokers without being sworn, ibid 7-9, 37.
Malynes, Lex Mercatoria Bk. I. c. xxxix, says, " no broker should be admitted unless
he were sworn, and upon affidavit or certificate made by some principal merchants of
his sufficiency and behaviour, and to put sureties for his true and good demeanour
amongst Merchants, according to the custom of London " ; see 2 James I. c. 21
preamble ; further regulations of pawnbrokers were made by proclamation in 1630,
Tudor and Stuart Proclamations i no. 1613 ; they were to be registered and enter
into a bond of £100 ; for a proposed bill of 1678 to regulate pawnbrokers, which
was passed by the House of Commons and dropped in the House of Lords, see
Hist. MSS. Com. gth Rep. App. Pt. ii 122 no. 616.
3 Malynes, loc. cit. 4 Ibid.
5 8, 9 William III. c. 32 Preamble.
6 " Whereas diverse brokers and stock jobbers or pretended brokers have lately
set up and carried on most unjust practices and designs in selling and discounting
of talleys, bank stock, bank bills, shares and interests in joint stocks . . . and
have . . . unlawfully combined and confederated themselves together to raise or
fall from time to time the value of such talleys, bank stock, and bank bills as may
AGENCY 225
shoulders than was just,1 they no doubt sometimes helped to
manipulate the market in their own interest. At any rate the
Legislature in 1696- 1697 thought it necessary to regulate their
business.
The Act 2 did not apply to brokers for the purchase and sale
of cattle, corn or other provisions, and coal. It did apply to
brokers for the purchase and sale of all other merchandise, for
taking up money, for negotiating bills of exchange, and for the
sale and discount of tallies, bank stock, bank bills, and shares in
joint stock companies.3 No person was to act as a broker in
London, Westminster, or within the Bills of Mortality, without
a licence from the Lord Mayor ; 4 and no broker, even though
so licensed, could deal in tallies or stock secured upon funds
granted by Parliament, unless licensed by the Treasury.5 A
broker, on being admitted, must take an oath to do his duty,
and give a bond for its performance ; 6 and their names and ad-
dresses were to be published.7 They must keep a broker's book,
and enter in it all contracts made by them within three days of
their date.8 They must not take more than 10s. per cent,
brokerage ; 9 and penalties were imposed on a broker who took
more, or who dealt for himself in the exchange of money, or who
bought stock or shares to sell again.10 In order to discourage
dealings in speculative options, it was provided that every bargain
to give a man liberty to accept or refuse shares should be void
unless it was exercisable within three days.u The number of
brokers was limited to one hundred.12 It is clear from this Act
that brokers were beginning to take an important place in the
commercial world. But as yet their legal position is ill defined.
There are few if any cases concerning them in the reports.
Comyns, in his Digest, cites none.
The broker was an independent person : the factor was
essentially an employe. The broker could not be mistaken for a
be most convenient for their own private interest and advantage, which is . . .
extremely prejudicial to the public credit of this kingdom and to the trade and
commerce thereof, and . . . may ruin the credit of the nation and endanger the
government itself," ibid; cp. Luttrell's Diary iii 528, 529 for some manipulations
of the price of guineas ; and see generally Scott, Joint Stock Companies i 358.
1 Mr. Scott says that, though the war tended to produce great instability ot
prices, "it is remarkable that quotations display so little of the see-saw movement
due to market manipulation, but on the contrary follow well-defined lines of move-
ment, the causes of which can generally be traced"; hence he thinks that "the
blame laid on stock jobbing was to a large extent undeserved," ibid i 358-360.
3 8, 9 William III. c. 32 § 14. 3 8, 9 William III. c. 32 Preamble.
4§x- .. 5§i5-
• § 2 — in addition to the oaths of allegiance and supremacy.
7 § 4 ; § 8 required them to carry a silver medal which must be shown to the
parties at the conclusion of all contracts.
8 §6. »§7. io§9.
u § 10 ; above 214. 13 § g#
VOL. VIII. — 15 k
226 THE LAW MERCHANT
servant of his principal : the factor at this period was, in the eye
of the common law, very much in the position of a servant.1
Nevertheless, according to the practice and usage of the
merchants, the factor differed essentially from a servant. " The
difference," says Malynes, ' ' between a factor and a servant con-
sisteth chiefly in this, that a factor is created by merchant's
letters, and taketh salary or provision of factorage : but a servant
or an apprentice is by his master entertained, some receiving wages
yearly and some others without wages. A factor is bound to
answer the loss which happeneth by overpassing or exceeding his
commission ; whereas a servant is not, but may incur his master's
displeasure." 2 Malynes then gives certain rules as to the adjust-
ment of accounts between merchant and factor, as to keeping
within the limits of his commission, as to his liability to account
for any gain made by the use of his master's credit, as to his
liability for false entries at the custom house, as to his liability for
the loss of or damage to goods entrusted to him, as to his duties
in relation to letters of credit, bills of exchange, the freighting of
ships, and the insuring of ships or cargoes.3 Molloy's chapter on
factors does not add anything very material to the information
given by Malynes.4
The information given by Malynes and Molloy no doubt sum-
marizes existing mercantile practice. But as yet this practice was
very little known to the English courts of law and equity. The
cases which turn upon the relations of merchant and factor are
very few in number, and deal only with one or two isolated points
on the fringe of the subject. Thus we get a few cases in the
common law courts, which turn on the applicability of the actions
of account or debt,5 on the liability for non-payment of duties at
the custom house,6 and on the interpretation of the bonds which
factors gave to perform their duties carefully and honestly.7 In
Chancery we get some cases turning upon liability for erroneous
entries at the custom house,8 and on the administration of the
1 In Southcote's Case (1601) 4 Co. Rep. at f. 84a Coke explains that a factor, un-
like a carrier, is not liable if, without his fault, the goods trusted to him are stolen,
" for if a factor (although he has wages and salary) does all that which he by his
industry can do, he shall be discharged, and he takes nothing upon him, but his duty
is as a servant to merchandize the best that he can, and a servant is bound to perform
the command of his master."
2 Malynes, op. cit. Bk. I. c. xvi. 3 Ibid.
4 De Jure Maritimo et Navali (4th ed.) Bk. III. cap. viii.
8 See e.g. Core's Case (1537) Dyer 20a ; The Earl of Lincoln v. Topcliff (1599)
Cro. Eliza. 644.
8 William Lewson v. Kirk (16 11) Cro. Jac. 265.
7 Sheppard v. Maidstone (1713) 10 Mod. 144 ; The African Company v. Mason
(1715) 10 Mod. 227.
8 Smith v. Oxenden (1663) 1 Cases in Chancery 25; Borr v. Vandall (1663) ibid
30 ; Knipe v. Jesson (1666) ibid 76 — in which the extraordinary rule was laid down
that, if the factor could succeed in defrauding the customs of a foreign country, he
could keep the profit, as he had run the risk.
AGENCY 227
estate of a deceased factor which comprised assets belonging to the
merchant or vice versa.1 In this period we get little else.2 In
fact, during the greater part of it, this branch of the common law
has been least of all affected by the customs and rules of the law
merchant.
Perhaps the best proof of this fact is the refusal of the common
law to draw any distinction between the law of principal and agent,
and the law of master and servant. In common speech, no doubt,
both in the seventeenth century and in our own day, the terms
principal and agent connote commerce, and the terms master and
servant domestic service ; 3 but, except in so far as special statutes
have put particular classes of agents upon a footing of their own,
the common law still treats these two branches of law as funda-
mentally identical. If in England commercial law had ever come
to be administered by special commercial courts, the law of com-
mercial agency might have come to be a branch of the law quite
distinct from the law of master and servant. The fact that
commercial law came to be administered by the common law
courts, has prevented any such distinction from growing up.4
Coke, as we have seen,5 regarded the factor as a servant ; and
Blackstone dealt with the law of agency in his chapter on Master
and Servant.6
The result was that the development of the law of commercial
agency was very slow. We shall see that the courts, during the
greater part of this period, contented themselves with applying the
strict rules of the mediaeval common law." Except in those cases
in which, from motives of public policy, a more extended liability
was allowed,8 a master was only liable for the acts of his agent if
he had actually ordered him to act, or if he had, by words or
conduct, subsequently ratified his acts. And this conception was,
as we shall see, applied, as in the mediaeval period, both to the
contracts made and to the torts committed by the agent. The cases
of Barton v. Sadock and Southern v. How illustrate this point
In the case of Barton v. Sadock,9 the plaintiff, a merchant,
1 Chapman v. Derby (1689) 2 Vein. 117 — claim by a factor on the estate of a
deceased merchant ; Burdett v. Willett (1708) 2 Vern. 638 — claim by a merchant on
tne estate of a deceased factor.
2 We have seen, vol. i 505 ; vol. v 150 n. 2, that the Council occasionally inter-
fered on equitable grounds to redress cases of hardship caused by a principal's or an
agent's fraud — but these cases do not carry us very far.
3 Thus, Locke, Two Treatises of Government Bk. II. chap, vii § 85 uses the terms
in this sense.
*" There has never been a time when cases on master and servant were not cited
as authority in the law of principal and agent, and vice versa" Street, Foundations of
Legal Liability ii 454.
* Above 226 n. 1. s Comm. i c. xiv.
7 Vol. iii 382-385 ; below 251-252, 472-473.
8 Vol. iii 385-387 ; below 476-477. » (1610) 1 Bulstr. 103.
228 THE LAW MERCHANT
brought an action of account against the defendant, his factor, for
certain jewels delivered by the plaintiff to the defendant to trade
with beyond the sea. The defendant had sold the jewels to Mulle-
shake, the king of Barbary, for ^45 ; but he had not yet received
the money. It was held that he was liable to the plaintiff.
Fleming, C.J., said,1 "In cases of authorities given to one (as in
this case here) to sell anything, as a factor, in the due execution
of this authority, he ought presently upon the sale thereof to have
and receive quid pro quo, otherwise he doth not well perform the
authority, thus to him given, neither ought he upon the sale there-
of, to give him any further time, or day of payment, but as he
delivers the one, so he ought then presently, at the same time, to
receive the money for the same for which it was sold." 2 In the
case of Southern v. How 3 the defendant was the owner of certain
counterfeit jewels. He sent them to his factor in Barbary to be
sold. The factor, through the plaintiff, sold them to the king of
Barbary for £800, telling him that they were good jewels ; and
the ;£8oo was paid over in due course to the plaintiff. When the
king discovered that they were counterfeit, he imprisoned the
plaintiff till he repaid him the ^"800. On these facts the plaintiff
brought his action on the case against the defendant. Judgment
was given for the defendant, chiefly, the report tells us, on the
ground that the master did not command the factor to conceal the
fact that the jewels were counterfeit.4 This case thus illustrates
the fact that, at this period, as in the mediaeval period, the
principle applied to the liability of the master for the torts of his
servant was the same as that applied to his liability for his
servant's contracts. In both cases there must be a particular
authority to do the act complained of. Such cases as these show
that, if the factor was to be protected from personal liability, he
must be able to show that authority had been given to him in
very wide terms.5 It was only very occasionally that the criminal
equity administered by the Council 6 and the Star Chamber 7
relaxed these rules.
At the end of the seventeenth century it was becoming obvious
that these rules were quite inadequate. In fact the exigencies of
commerce compelled all the courts to reconsider the principles of
1 At p. 104. 2 This case was followed in 1676, Anon. 2 Mod. 100.
3 (1618) Cro. Jac. 468. 4 At p. 470.
5 As Malynes says, op. cit. Bk. I. c. xvi, if you have a good factor, " all com-
missions given unto him may be ample, with addition of these words, dispose, do, and
deale therein as if it were your own."
6 Dasent vii 204 (1564-1565) — a master is ordered to produce his servant guilty of
an affray or to go to prison.
7 Reportes del Cases 165 — it was ruled, that, " where one commands his servant
to enter on certain land, and to take distress peaceably, and he enters with many
others riotously, the master is a rioter."
BANKRUPTCY 229
this branch of the law. The court of Chancery was beginning
to apply the principles of equity to the solution of some of its
problems. Thus in one case it applied the analogy of trustee and
cestui que trust to the relations between a factor and his principal ; x
and in another it ruled that payment by a principal to his agent
did not necessarily discharge his debt to the creditor.2 Then, too,
it was clear that the very limited delictual liability of the principal
for his agent's torts urgently demanded revision ; and in this part
of the law we shall see that certain civil law rules, applied by the
court of Admiralty to the relations of shipowners, masters, and
merchants, were taken over by Holt, C.J., and the common law
courts, and used by them as a technical justification for this
extension.3 Probably Holt's decisions upon this branch of the
law of agency were largely instrumental in preserving it for the
common law. If the common lawyers had refused to extend it to
meet obvious needs it might very possibly have been developed
mainly by the court of Chancery.
§ 6. Bankruptcy
In many early systems of law the obligation of the debtor is
personal in a very literal sense — the body of the debtor can be
taken by the creditor.4 In all early systems of law each creditor
is left to pursue his own remedy. There is no machinery by
which the creditors as a body can collectively enforce their claims.
But as soon as industry and commerce begin to develop, these
primitive ideas must be modified. Whenever it is possible the
creditor enforces his rights against the property and not against
the person of the debtor ; to prevent fraud, and to facilitate the
equal treatment of all the creditors, a procedure by which creditors
can collectively enforce their claims is developed ; and generally
some distinction is drawn between a debtor who is unable to pay
by misfortune, and a debtor who is unable to pay by reason of
his cwn recklessness or fraud.
These developments had taken place in the Italian commercial
cities in the Middle Ages.5 They had adapted to their own use
the bankruptcy procedure of the Roman law ( Venditio Bonorum),
under which the whole property of the debtor was divided equally
among his creditors.6 At the same time they had adopted also
1 Burdett v. Willett (1708) 2 Vern. 638.
2 Speerman v. Degrave (1709) 2 Vern. 643. * Below 250-253, 473-475.
* " Dans le tres ancien droit, c'est la personne du debiteur, son corps, qui r^pond
avant tout du pavement de sa dette ; par extension, ses meubles en repondent aussi,
car mobilia ossibus inherent," Brissaud, op. cit, ii 1462.
9 Ibid 1465 ; for Genoa see Leges Genvenses, Mon. Hist. Pat xviii cols. 574,
657-659.
6 For the Roman Law of Venditio Bonorum see Girard, Droit Roman 1013-1017;
Brissaud, op. cit. ii 1465 n. 3, notes that the law of the Italian towns diverged from
230 THE LAW MERCHANT
the modified procedure of the Cessio Bonorum, under which a
debtor, who was unable to pay by misfortune, could escape arrest,
and get discharged from his liabilities by giving up all his property.1
From Italy these forms of procedure gradually spread to other
countries during this period, and Malynes 2 gives us some account
of them.
In England, as in other countries, a similar development took
place during this period. But in order to understand the reasons
why in England, as elsewhere, this development was necessary, I
must make a short digression, and explain what remedies were
open at common law to a judgment creditor against the chattels
or person of his debtor.3
The two writs by which, at common law, a judgment creditor
could realize his claim were, either the writ of fieri facias, under
which the sheriff was directed to cause to be made from the goods
and chattels of the debtor the sum adjudged to be due to the
creditor ; or the writ of levari facias, under which he was directed
to levy it out of the goods and the profits of the land.4 By
neither of these writs could the body of the debtor be taken ; and
it is " not a little remarkable that the common law knew no pro-
cess whereby a man could pledge his body or liberty for payment
of a debt, for our near cousins came very naturally by such a
process, and in old times the wite theow may very often have been
working out by his labours a debt that was due to his master. " 5
Perhaps the reason is to be sought in the fact that the common
law, under the influence of the ideas drawn from the mature
Roman law, had shaken off the very primitive ideas as to the
strictly personal character of liability for debt, which lead archaic
systems of law to the conclusion that the seizure of the debtor's
body is the only proper mode of enforcing his obligation to pay.
But, though the earliest systems of personal execution rest upon
very primitive ideas, the law has at no time been able to dispense
wholly with the power of restraining the debtor's person in the
the classical Roman law in the following particulars : (a) cessation of payment is a
presumption of insolvency and an act of bankruptcy ; (b) transactions entered into a
short time previous to the bankruptcy are rendered void ; (c) a majority of the creditors
can give time to the debtor and allow him to resume control over his business.
1 Girard, op. cit. 1013 n. 4 ; Brissaud, op. cit. ii 1471, tells us that in France it
early made its appearance in the customs of the south, and also in the north in the
second half of the thirteenth century ; in a small tract of 1582 entitled " A newe order
for Banqueroupts," an account is given of a decree of the Parlement of Paris as to the
conditions on which a cession of goods could be made.
2 Op. cit. Bk. I. c. xliv ; Bk. III. c. xii, pp. 293-294.
3 For his remedies against the debtor's land see vol. iii 131-132.
4 P. and M. ii 594 ; Harbert's Case (1585) 3 Co. Rep. at pp 11b, 12a ; Bl. Comm.
iii 281.
8 P. and M. ii 594; for Reeves's erroneous view to the contrary see C.J. Fox's
article in L.L.R. xxxix 46-47, 48-52.
BANKRUPTCY 231
last resort. At all times there will be persons whose morality is
so much below the average commercial morality of the age, that
they do not scruple to take advantage of the credit which, in
reliance upon the existence of that commercial morality, is given
to them. If it is advantageous to commerce that the standard of
commercial morality should be high, and that credit should be
given, it is necessary to bring home to such persons, in the only
way in which they will feel it, the consequences of their conduct.
It is true that the imprisonment of a debtor, who is unable or un-
willing to pay his debt, will not necessarily give the creditor his
money ; but it will tend to stop such abuses of confidence. At
the same time it is a means of coercion which requires to be
regulated carefully ; and in most systems of law it is recognized
that it should be used sparingly and in the last resort
The common law soon discovered that it could not do without
this method of execution. In the case of one class of debts it was
permitted by statute from an early date. It was provided in
1285 that a debtor by statute merchant could be arrested.1 But
in most cases this form of execution was gradually and indirectly
introduced, by means of changes in the process of the courts, and
changes in and developments of the forms of action The manner
of its introduction was as follows : — From the first a writ of capias
ad respondendum had been a part of mesne process in actions of
trespass vi et armis.2 In the thirteenth century this writ was
extended to actions of account ; 3 in the fourteenth century to
actions of debt, detinue, and replevin ; 4 and at the beginning of
the sixteenth century to actions on the case.5 It had been laid
down in Edward IIL's reign that when a writ of capias ad
respondendum lay to get the defendant before the court, a writ of
capias ad satisfaciendum would lie to obtain execution of the
judgment6 The result was that in practically every case a creditor
could take his debtor's body in execution. But, if he elected to
adopt this remedy, as he usually did, no other mode of execution
was open to him."
Constraint of the debtor's person thus became in England a
more general method of execution than in many other countries in
Europe. Largely because it was introduced in this indirect way,
a mode of execution which required, and in most countries
1 13 Edward I. st 3 ; vol. iii 132. 2 P. and M. ii 592.
3 52 Henry III. c. 23 ; 13 Edward I. c. n. 4 25 Edward III. c. 17.
5 19 Henry VII. c. 9 ; as Blackstone says, Comm. iii 282, by virtue of these and
other statutes a capias may be had upon almost every species of complaint.
•Y.BB. 40 Ed. III. Pasch. pi. 28; 49 Ed. III. Hil. pi. 5 ; cp. Harbert's Case
(1585) 3 Co. Rep. at p. 12a ; 3 Salk. 286.
7 See 21 James I. c. 24 ; Bl. Comm. iii 415.
232 THE LAW MERCHANT
received, careful limitation and regulation from the Legislature,1
was almost entirely unregulated. The results can be read in the
pages of Dickens ; and, long before Dickens wrote, the abuses and
the inadequacy of the different modes of execution known to the
common law had aroused attention.
As early as Henry VIII. 's reign it had become obvious that
the machinery of the common law was wholly inadequate to the
needs of the merchants of the sixteenth century. Henry Brink low,
citizen and mercer of the city of London, who wrote in the later
years of Henry VIII. 's reign,2 shows us that the merchants were
beginning to complain that English law lagged behind the laws of
other mercantile communities. "Another thing very nedeful to
be loked upon is this, that when any merchant or other, by losse
of goodes, by fortune of the sea, evel servantys, evyl detters, by
fyre, or other wyse, come to an after deale, and not able to pay
his credyte at his due tyme, but by force of povertye is constrayned
to demand longer tyme — than ye have a parcyell lawe in making
of tachmentys,3 first come, first servyd ; so one or ij shall be all
payd, and the rest shal have nothyng. And comonly even the
rych shal have the foredeale therof by this tachement, to the gret
dammage and oppressyon of the pore. For lyghtly the rich have
the first knowlege of soch things. Wherfor, in that case it were a
godly way to make it in Ingland, as it is in dyverse contryes,
whan any such chance falleth, that than the most in nomber of
the credytors and most in somme, shal bynde the rest to doo and
gyve lyke tyme as doo the most of the credytors. And if it be
duly found that the man be so farre at after deale, that he be not
able to pay his whole credite in reasonable tyme, that than the
lawe may bynd them that every man may have pound and pound
alyke, as farre as his goodys will goo, leavyng him somewhat as
the lawe shall thynck good. And this lawe shal be both
neyhborly and godly."
Brinklow in this passage points to one serious defect in the
law — its unfairness to creditors. Equally obviously it was unfair
to debtors. Debtors might be either honest and unfortunate, or
dishonest ; and in both cases the law was inadequate. To shut
up an honest but unfortunate debtor in prison, where he lived on
1 For its regulation in French Law see Brissaud, op. cit. |ii 1469-1471 ; the
regulation began as early as 1254 — " Saint Louis, en 1254, P"1 des dispositions qui
auraient du la faire disparaitre, mais qui eurent, du moins, pour rdsultat d'accentuer
son caractere subsidiaire et d'en faire une voie d'exe"cution exceptionnelle " ; cp.
Malynes, op. cit. 293-294.
2 Complaynt of Roderyck Mors (E.E.T.S.) c. 17. Brinklow was originally a Grey
Friar. He became a mercer and citizen of London, married, and died in 1546. He
was a strong Protestant, as his works show. This book was written about 1542.
3 I.e. attachments.
BANKRUPTCY 233
charity or at his own expense, or died of starvation,1 inflicted
much hardship on the debtor without any benefit to the creditor.
On the other hand, if the debtor was a dishonest person, who had
become insolvent through his own fault, he would very likely be
able to secrete some of his ill-gotten gains, and live in comparative
comfort in prison, till he forced his creditors to some sort of
compromise.2
The need for better laws was met in two ways — firstly by the
jurisdiction of the Council, and secondly by the Legislature. And
during this period we can distinguish two quite distinct lines upon
which the Council and the Legislature proceeded. Firstly the law
was modified in favour of the unfortunate, and secondly it was
sharpened as against the dishonest, debtor. We shall see that
it was from the second of these lines of development that the
bankruptcy laws spring.
(i) Modifications in favour of the unfortunate debtor.
(i) The activities of the Council.
On behalf of the honest but unfortunate debtor the Council
repeatedly and actively interfered. Sometimes it arranged or en-
forced a composition with his creditors. That such compositions
were usual in the middle of the sixteenth century can be seen from
a precedent for a deed of this kind in Phayre's book ; 3 but their
effect was liable to be nullified by obstinate creditors. The Council
applied pressure to such creditors, and ordered creditors to make
1 What may be perhaps called the strictly mediaeval view of the position cf the
imprisoned debtor is to be found in Dive v. Manningham (1551) Plowden at p. 68, " If
one be in execution he ought to live of his own, and neither the plaintiff nor the sheriff
is bound to give him meat or drink, no more than if one distrains cattle and puts them
in a pound. . . . And if he have no goods he shall live of the charity of others, and if
others will give him nothing, let him die, in the name of God, if he will, and impute
the cause of it to his own fault, for his presumption and ill-behaviour brought him to
that imprisonment " ; clearly this state of the law was quite unsuited to the economic
conditions of the sixteenth century ; cp. Brinklow, op. cit. c. 12, for a strong indictment
of the hardships inflicted on prisoners at this period ; at the end of the period the
Legislature intervened ; 14 Elizabeth c. 5 § 38, and 39 Elizabeth c. 3 § 13 provided for
the assessment of a county rate for the relief of these prisoners ; but it would appear
from Malynes, op. cit. 294-298, that its intervention was not very effective ; and this is
borne out by a petition of the poor prisoners in the Fleet prison and elsewhere, who
pointy out that " in no other country is perpetual imprisonment the punishment ot
debt," Hist. MSS. Com. 3rd Rep. App. 26 ; for later legislation see below 234-235.
" For one illustration see Hudson, Star "Chamber 65, 66, cited vol. i 505 ; and for
another see a petition to the House of Lords, Hist MSS. Com. 4th Rep. App. 5 in
which it was alleged that a debtor by collusion was still getting a large part of his
income, " and, though nominally a prisoner in the Fleet these fourteen years, yet by
Habeas Corpus or otherwise, has liberty to travel where he pleases with his own man
as his keeper, and regards not payment of his debts."
3 A newe boke of Presidentes f. xciib; for this book see vol. v 388-389; the
Council's interference in these cases was dictated by much the same considerations
as those which dictated its interference with loans at usurious interest
234 THE LAW MERCHANT
them.1 Sometimes it directed a creditor to give his debtor time
till certain profits expected from a voyage should be realized.'2
Sometimes it appointed commissions to enquire into the cases of
persons imprisoned for debt ; 3 and though the legality of the
powers exercised by these commissions was very doubtful,4 the
commissioners exerted pressure of an indirect but effectual kind
upon creditors who would not come into the arrangements which
they suggested.5 This jurisdiction was exercised throughout the
earlier half of the seventeenth century.6 On one occasion, in 1637,
the Council stated that they did not think it reasonable that a
threat of bankruptcy proceedings should be used to "strengthen
the wilfulness of a few against the general and charitable consent
of the greatest number of the creditors " ; and the Lord Keeper
said that debtors who feared to pay, lest they might be made to
pay again by a commission of bankruptcy, might lay aside that
fear, as he should refuse to issue any such commission. All the
debtors who refused to pay, and all the creditors who refused to
agree, were ordered to attend the Council and show their reasons.7
(ii) The enactments of the Legislature.
During the last half of the seventeenth century the Council
ceased to exercise this jurisdiction, and the Legislature soon found
it necessary to interfere to relieve the harshness of the law. Two
petitions of distressed prisoners were presented to the House of
Lords in 1660,8 and in 1662 and 1664-1665 bills for their relief
were considered by the House.9 But it was not till 1 670-1 671 10
1 Dasent viii 128 (1573) ; ix 212-213 (1576) ; xiii 112 (1581) ; xv 16, 27 (1587) ; xix
98, 152 (1590).
2 Ibid ix 5, 154, 174(1575-1576) — orders to creditors not to molest a distressed mer-
chant till he got in money due to him in France; ibid xii 7 (1580) — it even relieved
a merchant's necessities by giving him a licence to export grain.
:J Ibid xiii 175 (1581).
4 Vol. iv 70 ; vol. v 432-433 ; Dasent xv 99 (1587) — their doings had given rise to
proceedings under the statute of Praemunire ; ibid xviii 109 (1589) — a complaint that
the working of the commission is hindered by actions at law.
8 Dasent xxii 384 (1592) — a letter of advice to the commissioners as to their dealings
with creditors who refused to accept reasonable terms ; apparently the commissioners
were to warn the recalcitrants that if they persisted, and afterwards themselves got
into difficulties, they must not look for any favour from the Council ; cp. ibid xviii
433-434 (1589-1590) — recalcitrant creditors summoned to appear before the Council ;
Malynes, op. cit. 157, advocated the renewal of the commissions for the relief of
distressed prisoners.
6 See Acts of the Privy Council (1613-1614) 102-103, 169-170, 204, 472, 522-523.
7S.P. Dom. 1636-1637, 51, cccxliii 47, 48; cp. ibid 1, cccxvii 1 ; for a similar case
see ibid 1637, 239, ccclxii 37 ; it appears from these cases that the crown was in the
habit of issuing protections in order to facilitate such compositions ; for an earlier
petition see ibid 1633 -1634, 3°7i ccn 5%-
8 Hist. MSS. Com. 7th Rep. App. 113, 141 — in the latter petition it was truly said
that the prisons were "sanctuaries for the rich and able debtors, and murdering dens
of cruelty to poor men and women."
9 Ibid 164, 181.
10 For a petition of these prisoners in 1670 see Hist. MSS. Com. 8th Rep. App. 152.
BANKRUPTCY 235
that anything was done. By an Act passed in that year ' it was
provided that a justice of the peace could cause any prisoner for
debt to be brought before him ; and that if the prisoner swore
that he had no estate above the value of £10, and that he had not
conveyed away his estate to defraud his creditors, a certificate
should be given to the prisoner, and notice should be given to the
creditor to appear at the next quarter sessions.2 If the prisoner's
oath could not there be disproved he was to be discharged.3 If,
however, the creditor insisted on keeping him in prison, he must
pay a weekly sum for his maintenance.4 Notwithstanding the
discharge of the prisoner, judgments were to stand good, and new
executions against the prisoner's property could be sued out.0
Enquiries were to be made into the administration of funds given
for the relief of poor prisoners ; 6 felons and prisoners for debt
were not to be lodged together ; : and certain other abuses
committed by gaolers or their officers were prohibited.8 In 1678 9
this Act was extended to persons imprisoned on mesne process.10
Prisoners kept in prison with a weekly allowance from their
creditors were to be released, if no estate belonging to them could
be discovered within three months.11 Debtors who were labourers
could be removed to the workhouse, and could demand their
release after two years.12 The Act was not to apply to debtors
who had not been in prison for six months,13 or who owed more
than ^500,u or to aliens in respect of debts contracted abroad ; la
and a discharge was made conditional on a full disclosure by a
debtor of his effects, and of the debts owing to him.16 In 1690 an
attempt was made to prevent debtors from using the Acts to
defraud their creditors, by causing themselves to be imprisoned in
collusive actions ; 17 and further amendments of the law were made
in 1694 18 and 1695-1696.19 It was provided by the latter of these
two Acts that the Acts should not apply to debtors taken in
execution for the non-payment of fines imposed for offences,20 to
debtors to the king,21 or to those owing damages for wrongs which
were felonious.22
I 22, 23 Charles II. c. 20. 3 § 1. 3 Ibid. 4 § 2.
5 § 4 ; see also 30 Charles II. c. 4 § 5 ; it was provided by § 8 of the last named
Act that the discharge of the prisoner did not release a surety.
•22, 23 Charles II. c. 20 § 9. 7 § 11.
8 §§ 6-8. » 30 Charles II. c. 4. 10 § 1.
II § 3 ; this section provided that the allowance was to be paid, not to the gaoler,
but to the prisoner, and § 11 provided that the weekly allowance need not be made if a
relation liable to maintain the prisoner was able to do so.
12 §§12, 13. "§9.
14 § 10 ; reduced to £100 by 7, 8 William III. c. 12 § 9.
19 § 18. 16§ 19. "2 William and Mary Sess. 2 c. 15.
18 5, 6 William and Mary c 8. 197, 8 William III. c. 12.
80 §8. 21§9.
22 § 15 ; to encourage recruiting it was provided by § 14 that no one under forty
was to get his discharge unless he either enlisted or procured some one else to enlist.
236 THE LAW MERCHANT
The number of these Acts leads us to think that they were
not very effectual, either to procure the release of prisoners, or to
put a stop to the malpractices of gaolers or their officers. The
justices of the peace were not well fitted to do the duties imposed
on them. Gaolers and officials were more iikely to side with rich
creditors than poor debtors ; l and the same might probably be
said of many of the justices. For these reasons these Acts were
probably less effective than the measures adopted by the Council
in the sixteenth and early seventeenth centuries.
(2) The measures taken against dishonest debtors.
(i) The activities of the Council.
During the earlier part of this period the Council interfered in
the case of the fraudulent bankrupt, either to set the law in motion,2
or to give directions in specific cases.3 But in this class of case
their efforts were seconded, and to a large extent superseded, by
the Legislature, at a much earlier period than in the case of the
unfortunate debtor.
(ii) The enactments of the Legislature.
It is in the enactments of the Legislature, passed to deal with
the dishonest debtor, that we must look for the origins of the law
of bankruptcy. All of the bankruptcy Acts passed in this period
were Acts passed with this object. All were directed against
fraudulent bankrupts, and aimed, not at relieving the bankrupt,
but at getting his property for the benefit of his creditors.
The first of these Acts was passed in 1 542-1 543. 4 It recites
that " divers and sundry persons, craftily obtaining into their hands
great substance of other men's goods, do suddenly flee to parts
unknown, or keep their houses, not minding to pay or restore to
any their .creditors, their debts and duties " ; and it empowers the
Lord Chancellor and certain other officials, and the two chief
justices, to seize the property and imprison the persons of such
debtors, and to distribute their property among their creditors.
The debtors of these persons, and anyone suspected of having in
their possession any of their property, could be summoned, ex-
amined, and required to make payment or restitution, they could
also be required to disclose any facts within their knowledge.
1 This complaint was made in a petition of the prisoners to the House of Lords in
1672-1673, Hist. MSS. Com. gth Rep. App. 26 ; a bill to improve the original Act of
1670-1671 was read a first time in 1673-1674, but failed to pass, ibid 37; and another
bill of the same kind failed to pass in 1690, ibid 13th Rep. App. Pt. V. 161 no. 322.
2Dasent v 344 (1556); vii 47 (1558-1559) 5 x *5, 37 (1577-1578); xii 34*-342
(1580-1581); xiv 78, 95, 131, 192 (1586-15S7).
3 Ibid x 66, 391 (1577-1578) ; xiii 310-311 (1581-1582) — an order that a creditor who
was an ambassador should be paid in full.
434> 35 Henry VIII. c. 4; Coke, Fourth Instit. 277, 278; vol i 470.
BANKRUPTCY 237
Creditors who got undue preference from absconding debtors could
be punished ; and collusive recoveries got aga'nst these debtors
could be set aside. These proceedings could be taken against
debtors who withdrew themselves out of the kingdom, or who kept
their houses or otherwise concealed themselves, in order to avoid
the payment of their debts.
This statute was replaced in 1 571 * by a much more compre-
hensive statute, which was amended and enlarged by statutes of
16042 and 1623.3 These three statutes contain the bankruptcy
law of this period.
These statutes (a) define the persons who can become bank-
rupts ; (b) catalogue the various possible acts of bankruptcy ; (c)
vest the jurisdiction in bankruptcy in commissioners appointed by
the Lord Chancellor ; (d) assign various powers to the commis-
sioners to enable them to collect and distribute the assets of the
bankrupt ; (e) define their duties to the creditors and the bankrupt ;
{/) provide for increasing in various ways the assets available for
distribution among the creditors; and (g) define the effect of
bankruptcy on the liability of the bankrupt Let us glance shortly
at these seven points.
(a) The persons who can become bankrupts. — All the Acts con-
fine the class of persons who can become bankrupts to traders.4
Under the two earlier Acts they must also be British subjects ; but
the act of 1623 provided that aliens could be made bankrupts,
and that they could prove as creditors.5 It was decided in 1700
that an infant could not be made a bankrupt because the debts of
an infant are voidable ; and "no man can be a bankrupt for debts
which he is not obliged to pay." 6
(b) The acts of bankruptcy. — The statute of 1571 declared the
following acts, if done with the intention of defrauding or hinder-
ing creditors, to be acts of bankruptcy : — departure from the realm ;
keeping house or otherwise absenting oneself ; taking sanctuary ;
suffering oneself to be arrested for debt ; suffering oneself to be
1 13 Elizabeth c. 7. 2 1 James I. c 15. *2i James I. c. 19
4Cp. Monro, Acta Cancellaria 286; it was enacted by 14 Charles II. c. 24 that the
mere fact that a person was a shareholder in the East India, African, and Fishery
companies should not make him a trader within the meaning of the bankruptcy Acts,
and a decision to the contrary was declared to be contrary to law. This privilege was
extended to holders of stock in the Bank of England by 8, 9 William III. c. 20 § 47 ;
apparently neither farmers nor inn-keepers were traders within the meaning of the Acts,
Meggot v. Mills (169S) 1 Ld. Raym. at p. 287.
5 21 James I. c. 19 § 15 ; apparently, before this statute, where an English debtor
abroad attempted to evade his foreign creditors by transferring his property and coming
to England, the court of Chancery intervened to help the foreign creditors, Sere and
Eland v. Colley (1610-1611) Tothill 68-69; and CP- Monro, Acta Cancellaria 169 n ;
the fact that the bankrupt and the creditor were out of England was immaterial, Wild
v. Middleton (1632) Tothill 75.
6 Rex v. Cole (1700) 1 Ld. Raym. 443.
238 THE LAW MERCHANT
outlawed or imprisoned ; or departing from one's house.1 The
statute of 1604 repeated this list with some small verbal modifica-
tions, and required the acts to be done with the intention of hinder-
ing or delaying creditors. It added the two following acts if done
with a like intent — suffering one's goods and chattels to be attached,
and making a fraudulent conveyance of one's lands or goods. It
further added the two following acts, whether this intent was present
or not — suffering oneself to be arrested for debt and lying in prison
six months,2 and non-appearance when summoned by the commis-
sioners.3 The statute of 1623 4 added the following : procuring
protections ; presenting a petition against one's creditors to force
them to take less than their original debts, or to get a longer time
of payment ; being indebted for £100 or more and not paying the
debt within six months after arrest, or the suing out of the original
writ ; being arrested for such a debt and escaping, or getting out
by giving common bail.5
(c) The jurisdiction in bankruptcy. — This was vested in "wise
honest and discreet persons " commissioned by the Lord Chancel-
lor.6 Malynes tells us that they were generally counsellors at law
joined with some citizens or merchants ; and that they generally
appointed one or two of the creditors to be the treasurers of the
fund to be distributed.7 They were entitled to be paid for their
trouble in executing the commission ; 8 and, in case of unfair deal-
ing, they were subject to the control of the court of Chancery.9
(d) The powers of the commissioners. — They could take the body
of the bankrupt, and could take and dispose of his property for the
benefit of his creditors.10 They could examine the bankrupt or his
wife upon oath.11 They could imprison him if he refused to answer
their questions as to his property ; 12 and he could be punished by
the pillory and cutting off of an ear if he committed perjury.13
1 13 Elizabeth c. 7 § 1. 2 1 James I. c. 15 § 2.
3 Ibid § 6. 42i James I. c. 19 § 2.
5 For common bail see vol. i 220. e 13 Elizabeth c. 7 § 2.
7 Op. cit. 158 — " The Commissioners appointed by the Lord Chancellor under the
great Seal, to execute this commission of the Statute of Bankrupts, must be Counsellors
at the law, joyned with some citizens or merchants, which are to seise of the party
(which by the said commission is proved to be a bankrupt) all goods, debts, chattels,
and moveables into their hands, and to appoint one or two of the creditors to be Trea-
surers of the same, which is afterwards to be distributed by the said Commissioners,
unto all such as they shall find and admit to be right Creditors to the party (and with
his privity and consent) upon such specialities, books, or accounts, as they shall pro-
duce, and be made apparent unto them."
8 Hawarde, Les Reports, etc., 342-343, tells us that in 1607 an action was brought
against three commissioners (two being members of Gray's Inn and one an attorney)
for taking money (£22) ; the action was dismissed, " And the Lo. Chancellor sayde he
was sorrye they took no more (for with a Lawyer Cessans Lucrum damnum est) and
yf Commissioners shoulde not have rewarde for their travell and Charges no Commis-
sion woulde be executed."
9 Wood v. Hayes (1606-1607) Tothill 62. 10 13 Elizabeth c. 7 § 2.
11 1 James I. c. 15 § 7 ; 21 James I, c. 19 § 6.
12 1 James I. c. 15 § 8. i=» Ibid § 9.
BANKRUPTCY 239
They could summon before them and examine upon oath debtors
of the bankrupt, or anyone suspected of being in possession of any
part of the bankrupt's property. In case of a refusal to answer
they could commit to prison.1 Fraudulent concealment by a
bankrupt of his property to the value of ^"20 was punishable by
the pillory and loss of an ear.2 They could break open the doors
of the bankrupt's house in the execution of their commission.3
They could assign to a creditor any debt due to a bankrupt, and
the creditor could sue for and recover it in his own name.4 They
could make a grant of the bankrupt's entailed lands by deed en-
rolled, which would hold good as against all persons whose inter-
ests the bankrupt might have barred by suffering a recovery ; 5 and
they could redeem any estates conveyed upon condition by the
bankrupt, which might have been redeemed by him.6 Evasion of
the commissioners' powers, by the pretence that the bankrupt was
indebted to the king, was prevented by giving the commissioners
power to enquire into the real facts.7 Their powers were not de-
termined by the death of the bankrupt.8
(e) The duties of the commissioners to the creditors and the
bankrupt. — The estate must be rateably divided among the credi-
tors.9 This rule of equal division was applied, even though a
creditor had a judgment, statute, recognizance, specialty, attach-
ment, or other security.10 Until distribution was made among the
creditors, other creditors could come in and claim a dividend, on
condition of contributing rateably to the cost of the commission ;
but if they did not come in within four months the commissioners
might distribute.11 The commissioners must, if required, account
to the bankrupt for the manner in which they had employed his
property, and pay him any surplus after the discharge of all his
debts.12
(/") Assets available for distribution. — All these statutes contain
provisions for setting aside certain dispositions by the bankrupt of
his property, in order to increase the amount available for the
creditors. The statute of 1571 provided that after-acquired pro-
perty of the bankrupt was to be available for the creditors ; but
not property bona fide conveyed to other persons before the
1 13 Elizabeth c. 7 §§ 5, 6 ; 1 James I. c. 15 § 10 ; see Bracy's Case (1697) 1 Ld.
Raym. 99.
2 21 James I. c. 19 § 7. 3 Ibid § 8 ; Anon. (1682) 2 Shower K.B. 247.
4 1 James I. c. 15 § 13.
5 21 James I. c. ig § 12 ; this is a curious anticipation of the plan adopted by the
Fines and Recoveries Act of 1833.
« 21 James I. c. 19 § 13. 7 Ibid § 10.
8 1 James I. c. 15 § 17 ; but it was determined by the death of the king till
5 George II. c. 30 § 44.
9 13 Elizabeth c. 7 § 2. >» 21 James I. c. 19 § 9.
11 1 James I. c. 15 § 4. » 13 Elizabeth c. 7 § 4 ; 1 James I. c- 15 § 15.
240 THE LAW MERCHANT
bankruptcy.1 The statute of 1604 made a more stringent pro-
vision. It enacted that all conveyances made by a bankrupt of his
property before bankruptcy, unless made in consideration of marriage
or for value, could be treated as void ; 2 but, under the statute of 1623,
if a conveyance was made after an act of bankruptcy committed,
no purchaser for good and valuable consideration could be im-
peached, unless the commission were sued out within five years of
the act of bankruptcy.3 These provisions aimed at swelling the
assets by getting back property which had formerly belonged to
the bankrupt. The statute of 1623 aimed also at swelling the
assets by taking the property of other persons in the possession of
the bankrupt. With that object it introduced the reputed owner-
ship rule. Goods in the possession, order, and disposition of the
bankrupt, by the consent of the true owner, could be disposed of
for the benefit of the creditors.4
(g) The effect of bankruptcy on the liability of the bankrupt. —
None of these statutes discharged the bankrupt from his liabilities,
except to the extent to which the creditors had been paid. The
statute of 1 57 1 specially provided that all creditors should con-
tinue to have all the remedies which they then possessed in
respect of any part of the debt which remained unrealized.5
The policy of these statutes was well described by Coke in
The Case of Bankrupts? " The intent . . . was to relieve the
creditors of the bankrupt equally, and that there should be an
equal and rateable proportion observed in the distribution of the
bankrupt's goods amongst the creditors, having regard to the
quantity of their several debts." Therefore, although the property
was not taken from the bankrupt till the commissioners had made
an assignment,7 he could not dispose of his property after he had
become bankrupt 8 — otherwise he might have made a fraudulent
preference and so have defeated the policy of the statutes. When
an assignment had been made, the title of the creditor related
back to the bankruptcy, so as to avoid all intermediate dealings
with it.9
The date of the bankruptcy was the committing of an act of
bankruptcy ; and it was the duty of the commissioners to deter-
mine whether such an act had been committed. Necessarily the
courts of law reserved power to review this decision. It was said,
in Bonhams Case, that the court had decided that the finding of
1 13 Elizabeth c. 7 §§ 11, 12. 2 1 James I. c. 15 § 5.
3 21 James I. c. 19 § 14.
4 21 James I. c. 19 § 11 ; cp. Meggot v. Mills (1698) 1 Ld. Raym. 286.
6 13 Elizabeth c. 7 § 10. « (1584) 2 Co. Rep. at p, 25b.
7 Carey v. Crisp (1689) 1 Salk. 108.
*The Case of Bankrupts (1584) 2 Co. Rep. at pp. 25a, 26b.
9 Kiggil v. Player (1709) 1 Salk. in.
BANKRUPTCY 241
the commissioners that a man was a bankrupt, was traversable in
an action of false imprisonment.1 Similarly, on a writ of habeas
corpus, the legality of a commitment by the commissioners could
be questioned.2 It was only a trader who could be made bank-
rupt ; and the question whether a person was a trader within the
meaning of the bankruptcy Acts was often before the courts,
generally on a reference from the Chancellor.3 Sometimes this
question was determined by the more indirect manner of an
action for slander ; for the question whether it was an actionable
slander to call a man bankrupt depended upon whether he was a
trader within the meaning of the Acts.4
It was only on the petition of the creditors that a commission
could issue ; 5 and, on such a petition, the Chancellor held that its
issue was a matter of right.8 The commissioners would then
decide whether an act of bankruptcy had been committed, or
whether a debt was proved, subject to an appeal to the Lord
Chancellor, or a reference to the judges.7
The common law decisions upon the interpretation of the
Acts turn, for the most part, merely on the construction of
particular sections.8 They do not add very much to the statute
law. For these additions we must look rather to the decisions of
the Chancellor. We have seen that the court of Chancery would
interfere in case of unfair dealing ; 9 and towards the end of this
period it began to deal with other questions as to bankruptcy
administration.10 One class of these cases turns upon the question
whether certain equitable interests could be deemed to be assets.
Thus it was held that property settled for the benefit of the wife
and children of the bankrupt could not be taken,11 or even an
annuity settled by a father on his soa12 It was even doubted for
some time whether an equity of redemption was an asset assignable
1 (1609) 8 Co. Rep. at p. 121a, " Because the party grieved has no other remedy,
if the commissioners do not pursue the Act and their commission, he shall traverse
that he was not a bankrupt, although the commissioners affirm him to be one : as
this term it was resolved in this Court, in trespass between Ctttt and Delabarre, where
the issue was, whether William Cheyney was a bankrupt or not, who was found by
the commissioners to be a bankrupt."
2 Bracey v. Harris (1097) 5 Mod. 3og.
s Monro, Acta Cancellaria 286 ; Bacon's Ab. tit. Bankrupt A, " the usual method
when Bankruptcy is denied, is for my Lord Chancellor to order it to be tried in a
Common-Law Court, on an Issue, Bankrupt, or not " ; see that title, and above 237
n. 4, for various cases ; the rule that only a trader could be made bankrupt was the
same in French law, Brissaud, op. cit. ii 1465.
4 See e.g. Squire v. Johns (1621) Cro. Jac. 585.
s Alderman Backwell's Case (1687) 2 Cases in Chancery at p. 191.
6 S.C. (1683) 1 Vern. 152. 7 Above n. 3 ; Anon. (1676) 1 Chy. Cas. 275.
8 See Bacon's Ab. tit. Bankrupt
9 Above 238. 10 Vol. i 470.
11 Vandenanker v. Desbrough (i68g) 2 Vern. 96.
12 Moyses v. Little (1690) 2 Vern. 194.
VOL. VIII.— 16
242 THE LAW MERCHANT
by the commissioners.1 Another class of cases turns upon the
modes of distribution adopted by the commissioners;2 another
upon the rights of different classes of creditors ; 3 and another
upon the validity of an assignment made before bankruptcy.4
But perhaps the most interesting questions were those which arose
in the case of the bankruptcy of a partnership, and in the case of
the bankruptcy of a purchaser of land or goods. In the manner
in which the court of Chancery dealt with both these cases we can
trace new and important principles of law.
In the partnership cases we see the beginning of the modern
rule 5 that the joint estate is primarily liable to the joint debts, and
the separate estate to the separate debts. In the earliest of these
cases, in 1682,0 two partners had agreed that debts owing on the
joint account should be paid out of the joint stock, and that the
joint stock should not be charged with the separate debts. But,
on the petition of a separate creditor, the court decreed that the
joint stock and joint debts should be divided into moieties ; that
each moiety of the stock should be charged with a moiety of the
joint debts ; and that which was over must be applied to pay the
separate debts of the partners. If the joint stock was not enough
to pay all the joint debts, and either partner paid more than a
moiety, he could come in as a creditor for the amount overpaid
by him ; and presumably his separate creditors would get paid out
01 any dividend he so got. In subsequent proceedings in the same
case, Lord North seemed to think that the agreement of the
partners that the joint debts should be paid out of the joint stock
was ineffectual, as it could not bind their creditors. But the
reporter adds a quaere whether the separate creditors could have
any better title than the partners under whom they claimed.7
Whether or not the primary liability of the joint stock to the joint
creditors, and the primary liability of the separate estate to the
separate creditors, was based on this ground is not clear ; but it is
clear that in 171 5 we get in substance the modern rule.8 A com-
mission of bankruptcy having issued against two partners, the
separate creditors applied to be let in to prove their separate
debts against their separate estates. They were allowed to do so ;
and it was directed " that as the joint or partnership estate was in
1 Vandenanker v. Desbrough (1689) 2 Vern. at p. 97.
2 Hitchcock v. Sedgwick (1690) 2 Vern. at p. 162 ; in 1693-1694 a bill for " the
more equal distribution of bankrupts' estates " was thrown out by the House of Lords,
Luttrell s Diary iii 285.
3 2 Vern. at p. 157; Craven v. Knight (1682) 2 Rep. in Ch. 226.
4 Meechett v. Bradshaw (1633-1634) Nelson 22.
5 Pollock, Digest of the Law of Partnership (nth ed.) 159 seqq.
6 Craven v. Knight (1682) 2 Rep. in Ch. 226, 229 ; 1 Eq. Cas. Ab. 55.
7 Craven v. Widdows (1683) 2 Cases in Ch. i3g.
8 Ex pte. Crowder 2 Vern. 706.
BANKRUPTCY 243
the first place to be applied to pay the joint or partnership debts ;
so in like manner the separate estate should be in the first place
to pay all the separate debts ; and as separate creditors are not to
be let in upon the joint estate until all the joint debts are first
paid ; so likewise the creditors to the partnership shall not come
in for any deficiency of the joint estate, upon the separate estate,
until the separate debts are first paid." At an earlier date it had
been settled that if a partner embezzled the partnership property
and became a bankrupt, the partners could, in priority to the
separate creditors, get from his share of the partnership assets the
amount which he had embezzled.1 This seems to be the origin of
one of the exceptions to the general rule ; 2 but as yet very little
has been done to differentiate the various exceptions to this rule,
and to ascertain their scope and application.
It was laid down in 1 684 that where a bankrupt, having
bought land, had not paid all the purchase money, the vendor
need not come in as a creditor for the rest of the money ; but that
the land should be charged with the balance due.3 In 1690 it
was laid down that, when goods had been consigned by unpaid
vendors to purchasers, who went bankrupt before the ship convey-
ing them had sailed, then, although the property had passed at
law, the vendor could retake the goods. " If they by any means
get these goods again into their hands, or prevent their coming
into the hands of the bankrupts, it was but lawful for them so to do,
and very allowable in equity." 4 It is clear that in these two
cases we have the origins of two exceptional rules in the law of
bankruptcy — the rule which gives the vendor of real estate an
equitable lien and so makes him a secured creditor, and the rule
that an unpaid vendor of goods can stop in transitu as against a
bankrupt purchaser.
The bankruptcy law established by these statutes suffered from
two great defects. In the first place, it made no sort of differentia-
tion between the unfortunate, and the dishonest or reckless bankrupt.
The governing idea of the statutes was that the bankrupt is an
offender ; and the fact that they provided for no discharge of the
bankrupt from his liabilities, as the result of bankruptcy proceed-
ings, is characteristic of this governing idea. The result was that
the rogue often escaped while " plain dealing men were laid hold
of." 5 In the second place, there is some reason to think that the
commissioners who exercised this jurisdiction were not always
very competent. It was said in Alderman Backwell's Case that
1 Richardson v. Godwin (1693) 2 Vern. 293. s Pollock, op. tit. 172.
s Chapman v. Turner (1684) 1 Vern. 267, 268 — '« in this case there is a natural
equity that the land should stand charged with so much of the purchase money as was
not paid ; and that without any special agreement for that purpose."
* Wiseman v. Vandeputt (1690) 2 Vern. 203. s Malynes, op. cit. 157.
244 THE LAW MERCHANT
the fact that the commissioners were liable to be sued, if they had
acted wrongly, caused the most sufficient persons to avoid serving ; 1
and there is evidence that the administration of the law was in
consequence both expensive and dilatory.2 For both these reasons
it is clear that the application of a measure of discriminating equity
was needed. It is therefore not surprising that, at the latter part
of this period, the Chancellor began to interfere more actively with
the administration of the law by the commissioners ; 3 that several
proposals for a reform of the law were made ; 4 and that early in
the following period it was materially modified. Even with these
modifications, both the law itself and its administration continued
to be one of the most unsatisfactory branches of English law till
the reforms of the nineteenth century.5 All these defects were
aggravated by the limited scope of the bankruptcy laws, which,
as we have seen, applied only to traders ; and by the fact that no
person, whether or not he came within the scope of these laws,
could force his creditors to assent to a composition.
That this was so was largely due to the fact that the abolition
of the jurisdiction of the Council in 1641, had left no machinery
by which an honest but unfortunate debtor could make an effectual
composition with his creditors, unless all the creditors agreed.8
At one time, it is true, the court of Chancery would, by means of
a bill of conformity, compel a minority of creditors to assent to a
composition of which a majority had approved.7 But this practice
gave rise to abuses — such bills were filed merely to delay pro-
ceedings at law.8 It was therefore ordered by proclamation in
1 62 1 9 that such bills should be dismissed if the creditors did not
consent ; and it was enacted in 1623 that the filing of such a bill
should be an act of bankruptcy.10 Several attempts were made at
the end of this period to pass Acts to facilitate these compositions.11
An Act was passed in 1696- 1697 ; 12 but it was repealed in the
1 " It was a mischief that the Act of Parliament had subjected the Commis-
sioners to an action, so that no sufficient persons . . . would undertake the trouble
of it," 1 Vein, at p. 154 ; see 1 James I. c. 15 § 16 for the procedure in these actions.
2 S.P. Dom. 1677-1678 644 ; ibid 1678 85. 3 Vol. i 470-471.
4 A bill for the better recovery of bankrupt's estates, and for the more equal
distribution thereof, failed to pass the House of Lords in 1693-1694, House of Lords
MSS. i no. 815 ; another bill ta effect a more equal distribution of insolvent's estates
failed to pass in 1694-1695, ibid no. 882.
6 Vol. i 471-473. 6 Above 234.
7 Ramsey v. Brabson (1583-1584) Choyce Cases 174 ; Tothill 25-26 (1613-1614) ;
ibid 47 (1613 and 1626).
8Malynes, op. cit. 160. 9 Tudor and Stuart Proclamations i no. 13 12.
10 21 James I. c. 19 § 2.5; in Alderman Backwells Case (1683) 1 Vern. at p.
153 it was said by the court that, " Bills of Conformity have long since been exploded,
and there was no such equity now in the court."
11 A bill to facilitate compositions with creditors was considered by the House of
Commons in 1679, S.P. Dom. 1679-1680 138, 147 ; Commons Journals ix 613 ; a
similar bill failed to pass the House of Lords in 1694-1695, House of Lords MSS. i
no. 911'
" 8, 9 William III. c. 18.
MARITIME LAW 245
following year.1 The result was that, right down to the beginning
of the nineteenth century, no means were provided for enforcing
a just composition with creditors ; 2 and this defect was aggravated
by the power which each creditor had of oppressing the debtor by
taking his body in execution.3 The resulting hardship on debtors,
who were unable for any reason to take advantage of the bank-
ruptcy laws, was forcibly pointed out by the Common Law Com-
missioners in 1831-1832. "A debtor," they said,4 "who rinding
himself in difficulty or even insolvency, but so circumstanced as
not to be within the scope of the bankruptcy law, is at present
frequently placed in a distressing situation ; however willing he
may be to do substantial justice by making a cession of his pro-
perty for the benefit of his creditors, he is often unable to effect
his purpose. If he offer a composition, it is in the power of one
or two of the creditors, out of mere caprice or in the expectation
of being paid in full, to defeat the arrangement, and several cases
of great hardship have occurred, when, after a debtor has sur-
rendered the whole of his estate for the benefit of his creditors, he
has been arrested and left to lie in prison, without the means of
obtaining his liberation."
It would, I think, be true to say that it was this branch of
English law which was the most injuriously affected by the abolition
of the jurisdiction of the Council. That neither the Legislature,
nor the common law, nor equity, had succeeded in constructing a
satisfactory body of law, is clear from the fact that the defects
pointed out at the beginning of the nineteenth century, are, to a
large extent, the same as those pointed out by Brinklow in the
sixteenth century.5
II
MARITIME LAW
As with commercial, so with maritime law, its main outlines
were beginning to assume their modern aspect during this period,
This fact emerges clearly from the treatment by the court of
Admiralty and by the writers of the period of some of the principal
topics of this branch of the law. The topics with which I propose
to deal are — The Ownership and Possession of Ships ; the Master
1 9 William III. c. 29.
2 The need for some legislation is illustrated by a petition of Robert Ryves, a
goldsmith who had been ruined by the stop of the Exchequer (above 186) ; he prayed
that the king would interfere to make a creditor accept a composition approved by all
the others, S.P. Dom. 1676-1677 158.
3 Above 231-232.
4 Fourth Report, Parliamentary Papers 1831-1832 Pt. I. 14.
'Above 232.
246 THE LAW MERCHANT
and Crew ; the Contract of Carriage ; and, Some Incidents of the
Contract of Carriage.
The Ownership and Possession of Ships
The usual methods of acquiring the ownership of a ship were
either by building her, or by capture followed by condemnation,1
or by transfer from an owner. Such a transfer was usually effected
by bill of sale, or by ordinary deed followed by delivery. The
delivery was the essential matter ; 2 but it could be effected by
bill of sale without delivery when the ship was at sea.8 Some-
times the seller warranted his title to the ship.4 Suits turning upon
questions of title occur fairly frequently — many of them are suits
by the true owner against the purchasers from pirates.5 They
illustrate the force of Malynes' caution to the merchants, that it is
"dangerous to fraight unknown ships which maybe subject to
other men's actions, and that in many places where wind and
weather may command them to enter." 6 In order to settle
questions of title, the court of Admiralty would declare the title
at the suit of a plaintiff who complained that another was wrong-
fully asserting title to his ship.7
A claim upon a ship might arise as the result of the hypotheca-
tion of the ship by the owner or master to a creditor,8 or, at this
period, from the fact that the claimant had done work upon the
1 Raylestone c. Guerson (1601) Select Pleas of the Admiralty (S.S.) ii 201 ; cp.
Dasent vi 106-107, 2°7 (I557) f°r two cases turning on the question of title by capture.
2 " The selling of a ship is not a sufficient course to alienate the same ; but the
quiet possession thereof must be delivered upon the sale made," Malynes, op. cit. 123 ;
this was contrary to the common law rule that the property passed by the sale without
delivery, and so the common law courts made the different rule applied by the
Admiralty the ground for issuing writs of prohibition, Select Pleas of the Admiralty
(S.S.) ii xlix-1.
3 Ibid i 98 — a case of 1540 in which the custom is thus stated, "that all, and
every contracte or sale of any shipe goods wares or other merchandyses made or
had by any owner . . . thereof to any merchaunte or other person . . . and (the
buyer) having a byll of sale thereuppon made and delyvered to hym by the seller, ys
good and valuable and . . . the said buyer by vertue of the said custome and delyvery
of the said byll of sayle . . . may entre and take possession of the said shipe goods
wares and merchandyses so sold . . . at theyr retorne ad portum destinatum withoute
any further tradicion " ; cp. Dasent xiii 215, 222 (1581) for a case turning on the
transfer of a ship.
4 Browne c. Maye (1551) Select Pleas of the Admiralty (S.S.) ii 16 is a case
turning on such a warranty.
BLudkyn c. Edmunds (1546) Select Pleas of the Admiralty (S.S.) i 141-143;
Gelderc. Worelond (1552) ibid ii 82 ; Officium Dominic. Goods ex A Hamburgh Ship
(1554) ibid 91 ; Officium Domini c. The Eugenius (1556) ibid 99; Dasent ix 73 (1575-
1576) ; x 102 (1577)-
6 Lex Mercatoria 124; see Poyntell c. De Billota (1555) Select Pleas of the
Admiralty (S.S.) ii 94 for a case which illustrates the force of Malynes' remark.
7 Kinge c. Gomez (1596) Select Pleas of the Admiralty (S.S.) ii 179.
8 For such instruments see Select Pleas of the Admiralty (S.S.) i 62-63, n 69. ; for
the powers of the master to hypothecate see below 249.
OWNERSHIP OF SHIPS 247
ship.1 In such a case the creditor could realize his debt by arrest-
ing the ship, and taking the necessary proceedings in the court
of Admiralty. The court could order sale and, if there was
more than one creditor, distribute the proceeds among them.2 If
it was a part owner who had thus pledged his share, the others
could intervene and pay out the creditors.3 In that case they
could recover against their partner the amount which they had
thus paid, in accordance with the ordinary rules relating to partner-
ships.4
Generally ships were owned in common by two or more persons.
The frequency with which this occurred had given rise to some
definite rules as to their rights inter se. The co-owners were of
course entitled to share, in proportion to their shares, in any
profits made by the ship, or in any compensation to which the
ship was entitled for wrongs committed against her.5 Conversely,
all the owners were liable for wrongs committed by the ship,8
or for money spent upon necessary repairs. If one part owner
made necessary repairs, and the other delayed to pay for four
months, he lost his share " — a severe rule founded on a passage in
the Digest relating to the repair of houses,s which was not followed
in later law.9 More difficult questions arose when the co-owners
disagreed as to the employment of the ship. It was settled that
the disagreement of one co-owner could not force the ship to be
idle. The rule was that it must make at least one voyage " upon
their common charges and adventures " ; but that afterwards, the
partner who refused, must either sell his share to the others, or
allow them to sail the ship.10 In the latter case he must share in
1 Simondson c Manelli (1597) Select Pleas of the Admiralty (S.S.) ii 185 ; but in
later times the courts of common law regarded such contracts, if made in England
with the owner, as giving rise to a merely personal liability, and so they prohibited
proceedings taken by such creditors in the Admiralty against the ship, Abbott, Merchant
Ships and Seamen (3rd ed., 1808) 137-142 ; I have purposely chosen an early edition
of this book, as it represents the law as it existed before the era of extensive legislative
change began ; for maritime liens generally see below 270-273.
■ Re Lappage (1538) Select Pleas of the Admiralty (S.S.) i 6g, 70.
3 Cogley c. Taylor (1548) ibid ii 7.
*Thus Welwod, Abridgment of all Sea Lawes Tit. xv, says that, if an owner has
been forced to pay on a contract made by the master, " the rest of the owners . . .
shall relieve this man pro rata of their portions" ; for Welwod's book see vol. v n,
131, 134-
5Cougham c. Kindt (1600) Select Pleas of the Admiralty (S.S.) ii 198-199.
6 Below 252, 267; Malynes, op. cit, 121. 7 Ibid 123.
8 Dig. 17. 2. 52. 10. 9 Abbot, Merchant Ships and Seamen (3rd ed.) 83-84.
10 Malynes, op. cit 120-121 ; Welwod, op. cit, 40, 41 ; the rules that one voyage
must be made was not followed by the later English law, Abbott, op. cit. 91 ; as is
there pointed out, " the old rule appears to have been framed with a view to the interest
of the master, who in former times was a principal owner, and was the person who,
with the pecuniary assistance of the other owners, generally caused the ship to be
built in the expectation of being employed in the command ; an expectation which
might be defeated, if the others could sell their shares to strangers, who, acquiring a
majority of interest might appoint a friend of their own."
248 THE LAW MERCHANT
the expense of fitting the ship up for the voyage ; he was neither
liable for the losses nor entitled to the profit of the voyage ; x but
in case the ship perished the other partners were liable to him for
the value of his share.2 The court of Admiralty would in such a
case make the co-owners give him security for the value of his
share.3 Should the majority of the co-owners refuse to continue
in partnership with the minority, they must all agree to sell at
a value, or to employ the ship on a voyage. If this could not
be done, recourse, at this period, could be had to the court of
Admiralty, who could settle the matter on equitable terms.4 In
later law, apparently, the only remedy of the minority was to sell
their shares to another.5
The Master and Crew
Welwod 6 describes for us the ordinary complement of a trad-
ing ship of this period as follows : (i) The master — "he who bears
charge over all the ship " ; (2) The steersman, who was often the
same person as the master — "he who directs the ship in the course
of her voyage" ; (3) the master's mate; (4) the shipwright — "he
who attends upon the mending of the faulty parts of the ship " ;
(5) the boatsman — "he who bears the charge of the ship's boat" ;
(6) the clerk — " whose office is to write up and make account of
all things received or delivered in the ship, together with all the
ordinary and needful expenses made upon ship and kippage " ; (7)
the cook — "a most necessary member as long as there will be
bellies " ; (8) the ship's boy — " who keeps her continually in har-
bours " ; (9) the mariners.
Here we need only consider the legal position of the master
and the mariners.
The master's relation to the owner was determined partly by
the terms of the contract of employment, and partly by the com-
mon law of the sea.7 The common law of the sea gave him ordin-
ary powers to freight the ship, to take passengers, to provide
necessaries, and to do ordinary repairs.8 It also gave him extra-
1 Malynes, op. cit. 121.
2 Ibid. The rule was justified on the ground of public policy — " ships were made
and invented in common for the use of all men . . . and ordained for sailing, and not
to be idle and unoccupied."
3 Abbott, op. cit. 85 ; see ibid 87-90 for the controversy as to the power of the
Admiralty to take these stipulations, which was ultimately settled in George II. 's reign
in favour of the Admiralty.
4 Malynes, op. cit. 121 ; Welwod, op. cit. 41. "Abbot, op. cit. 91.
8 Op. cit. Tit. vi : " Of persons ordinary in ships " 7Ibid Tit. viii.
8 Ibid; Malynes, op. cit. 121, gives the practical advice that, "it is very con-
venient if the owners be in place that the master do not let the ship to freight, or
undertake any voyage without the privity knowledge and advice of the owners or
some of them "; see Thomas, Early Mayor's Court Rolls, 243-245.
THE MASTER AND CREW 249
ordinary powers to borrow money in a foreign country for the
needs of the ship, and, for that purpose, to hypothecate ship and
cargo or freight.1 It would seem that these powers were recog-
nized in the Middle Ages in the commercial courts of the Italian
cities ; and that the transactions themselves were really a variety
and a development of the loan on bottomry.2 The debt so con-
tracted took precedence of all other charges on the ship ; 3 and, as
in the case of the loan on bottomry, the money borrowed was not
repayable unless the ship reached its destination. Further, the
master had the power, in case of necessity, to sell the cargo or the
ship.4
When the master had acted within the scope of the powers
conferred upon him by his contract of employment, or by the law,
the creditor could enforce his claims against either the owner or
the master ; 5 and, conversely, the owner could enforce any rights
of this kind acquired by the master.0 Thus contracts made by the
master bound the owner even though he had not consented to
them, and even though any property acquired under them had
been appropriated by the master." It is clear that this is an ex-
tension of the principle of agency as recognized by the common
law at this period. We have seen that, as in the Middle Ages,
the common law made the principal liable only if he had expressly
authorized or subsequently ratified the act done.8 But, according
to maritime law, he was liable also for acts done by the agent
within the scope of his apparent authority. This was a departure
from common law principles which, even at the beginning of the
nineteenth century, Abbott thought it necessary to explain and
1 Welwod, op. cit. Tit. viii ; Select Pleas of the Admiralty (S.S.) i 92-93 (1541) —
hypothecation of ship and freight in Sicily by the master ; ibid ii 68 (1538) ; ibid ii
191-192 (1599) — sentence of condemnation for money due upon an hypothecation by
the master.
2 Bensa, Histoire du contrat d'assurance au moyen age (French tr.) 14, 15 ; for
the development of the contracts of bottomry and respondentia see below 261-263.
3 Ibid 15, citing Pegolotti, La practica della mercatuera cxxx p. 132.
4 Welwod, op. cit. Tit. viii ; " or to sell some of the merchants goods, provided
that the highest price that the rest of the goods is sold for at the market be repaid to
the merchant : which being done, the freight of those goods so sold and repaid, shall
be repaid by the master to the owner of the ship . . . except the ship perish in the
voyage ; in which case only the price that the sold goods were bought for shall be
rendered," ibid.
5 Ibid Tit. xv.
6 Ibid ; Malynes, op. cit. 121 — " because herein they do represent and undertake
the person of the master, ard these privileges are granted to the owners for the good
of the common wealth and the augmentation of traffic."
7 Welwod, op. cit. Tit. xv ; Malynes, op. cit. 121 — " if there were cause of mend-
ing the ship, and the master should spend the same another way, the owner is to
satisfy the creditor notwithstanding " ; it was otherwise if the master was acting
beyond his powers, e.g. if he borrowed money to mend a ship which did not need
mending.
8 Above 227-228.
250 THE LAW MERCHANT
justify.1 We shall see that the justification which he put for-
ward— the agent " is seldom of ability to make good a loss of
any considerable amount " — is in reality the substantial basis of
the extensive modification of common law principles, which is in-
volved in the modern doctrine of the employer's liability for the
torts of his employe.2
As in the case of the contracts of his employes, so in the case
of their torts, the liability, according to maritime law, of the
master or owner was also somewhat different from his liability at
common law. We have seen that at common law the master or
principal was only liable if he had previously authorized or subse-
quently ratified the tort.3 But according to maritime law the
liability of the master of a ship was more extensive ; and, at the
end of this period, it was recognized (after some hesitation) that
the owner also was subject to this extended liability. I shall con-
sider firstly the case of the master of the ship, and secondly the
case of the owner.
(i) It was quite clear that the master was liable to the mer-
chant and passengers, not only for his own torts,4 but also for the
torts of the crew. He, as well as the actual tort feasor,5 was liable ;
and liable, some said, to pay double the damage.6 This extension
of the master's liability was, to a certain extent, based upon the
Roman rule as to the quasi-delictual liability of nautae caupones
and stabularii for the delicts of their employes.7 It was justified, as
the principle of employer's liability is justified to-day, on the ground
of public policy. Welwod explains that this liability is "most
justly laid upon the master, because he ought to hire good men.
. . . For it is in his own free will to choose his company, and he
should not be ignorant of the men he hath to do with ; otherwise,
1 Op. cit. 123-124 — " the great responsibility which the laws of commercial nat;ons
cast upon the owners for the acts of the master . . . has appeared to many persons at
first view, to be a great hardship; but ... it should always be remembered that the
master is . . . appointed by the owners ; and by their appointment . . . they hold
him forth to the public as a person worthy of trust and confidence; and if the mer-
chants . . . could not have redress against those who appointed him, they would
often have just reason to complain that they had sustained an irreparable injury
through the negligence or mistake of the owners ; as the master is seldom of ability
to make good a loss of any considerable amount."
2 Below 474-475, 477-479-
3 Above 227-228. 4 Welwod, op. cit. Tit. ix.
8 Select Pleas of the Admiralty (S.S.) ii 197-198 (1600).
6 Welwod, op. cit. Tit. ix ; but Malynes, op. cit. 103, dees not say that the matter
is liable to pay double.
'Dig. 4. 9. 1. 2. — " Qui sunt igitur teneantur, videndum est. Ait praetor • nautae.'
Nautam accipere debemus eum qui navem exercet : quamvis nautas appellantur omnes,
qui navis na igandae causa in nave s-int : sed de exercitore solummodo praetor sentit.
Nee enim debet, inquit Pomponius, per remigem aut mesonautam obligari, sed per se
vel per navis magistrum : quamquam si ipse alicui e nautis committi jussit, sine dubio
debeat obligari " ; the idea seems to have been that the master was an " exercitor "
qua the crew,
THE MASTER AND CREW 251
if the master were not so obliged . . . there would be a great oc-
casion of stealth and spoil." * And it would seem that his liability
was even more stringent than that cast upon an employer in our
modern law. Malynes and Welwod tell us that for, "whatsoever
shall happen through fault negligence or chance which might be
avoided, or if it be done by the passengers or other than himself or
his company, the master is answerable."2 The words "chance
which might be avoided " show that he was not quite in the posi-
tion of an insurer — in fact to have held him liable as an insurer
would have been contrary to the principles of civil liability recog-
nized by the court of Admiralty.3 But his liability for damage
done by passengers or third persons put him almost into that posi-
tion, as was shown by the case of Morse v. Slue} In that case an
action was brought against the master of a ship lying in the Thames
by the owner of goods on board the ship, because these goods had
been stolen by thieves. The master proved that the ship had been
guarded in the usual way. It was ultimately held that the case
must be decided on common law principles, because the ship was
not within the jurisdiction of the court of Admiralty, and that the
master was liable as a carrier.5 But it was quite arguable that,
even on the principles applied by the court of Admiralty, he could
have been held to be liable.6 According to these principles his
liability would depend upon whether he could show that the
damage was quite unavoidable.
(ii) The question whether the owner was liable for the torts
of the master or crew was by no means clearly settled at the be-
ginning of this period
The common lawyers held that he was not liable. In i6c67
it was argued that the owner was liable in a case in which an
English ship, provided with letters of marque, had attacked a
vessel belonging to a country with which England was at peace.
It was said that in matters which affected public policy owners
were at civil law always liable for the torts of their employes ;
and the analogy of the common law liability of the custom house
1 Op. cit. Tit. ix ; cp. Dig. 4. 9. 1. 1. — " Maxima utilitas esthujus edicti, quia necesse
est plerumque eorum fidem sequi et res custodiae eorum committere. Ne quisquam
putet graviter hoc adversus eos constltutum : nam est in ipsorum arbitrio, ne quern
recipiant, et nisi hoc esset statutum, materia darttur cum furibus adversus eos quos
recipiunt coeundi, cum ne nunc quidem abstineant hujusmodi fraudibus." It is inter-
esting to observe, Dig. 4. 9. 7. 2., that " si quid nautae inter se damni dederint hoc ad
exercitorem non pertinet " — an anticipation of the doctrine of common employment.
3 Welwod, op. cit. Tit. ix ; Malynes, op. cit. 103.
3 Below 258-259.
* Repoited 2 Keb. 866 ; 3 Keb. 72, 112, 135 ; 2 Lev. 69 ; 1 Vent. 190, 238 ;
1 Mod. 85 ; T. Raym. 220 ; the date of the case is 1672.
sSee 1 Mod. 85 n. a.
6 See the argument for the pbintiff in 3 Keb. 11?, 113.
7 Waltham v. Mulgar, Moore (K.B.) 776.
252 THE LAW MERCHANT
officer and the marshal was relied on.1 But Popham denied that
any such general principle existed at common law. He admitted
that a master might be liable if, having sent his servant to do one
kind of illegal act, the servant had done another kind of illegal
act : he would not be liable if, having sent his servant to do a
legal act, the servant had done an illegal act.2 The civilians, on
the other hand, were not quite clear as to the extent of the
owner's liability. According to Welwod and Malynes the owner
was not liable for the master's torts ; 3 though he might be liable
for the torts of a mariner, especially if the mariner had actually
been hired by himself.4 But others thought that the owner was
liable to the merchant for the negligence either of the master or of
the crew ; 5 and in support of this view the quasi-delictual liability
for the damage done by nautae caupones and stabularii imposed
upon the exercitor, i.e. the owner or person on whose account the
ship was worked, could be adduced.6 Whether on this ground or
not, owners were held liable by the court of Admiralty for the
damage done by their employes in the late sixteenth and early
seventeenth centuries.7
We have seen that, at the end of the seventeenth century, the
strict common law principles which governed the liability of
masters or principals for the acts of their servants or agents, were
wholly unsuited to the commercial condition of the country.8 It
is not surprising, therefore, that Holt should find in these civil law
principles a useful technical means of making a very necessary
development in the law. In the case of Boson v. Sandford 9 he
held that a shipowner was liable for damage to goods caused by
the master's negligence ; and he based his decision on the broad
principle that, "whoever employs another is answerable for him,
and undertakes for his care to all that make use of him." 10 It is
clear that this principle was applicable to other cases besides cases
1 " Et les Civilians argueont en Court, et Dodderidge prist un diversity que en
affaires publick les servants acts chargeront le master et le master respoignera pur son
servant. Et il cite 7 Eliz. Dyer lou le servant conceal customes : et 39 H. 6 lou le
servant misexecute l'office de Marshal (for some of these cases see vol. iii 387). Et
quia traffique est publick entercourse pur le weal del Realm, cestuy que mista un neive
en traffique doit provider servants que ne fairont publique offences " ; later " Dodderidge
dit que le Ley Civil est que la master respondra en touts publique cases," ibid at
P- 777-
2 " II prist cest rule lou le master mista son servant de faire un act illoyal, le
master respondra pur le servant sil mistake en le feazance del act, mes lou il mista son
servant de faire un loyal act come icy de prender les biens des enemies le Roy, et il
prist les biens des amies, le master ne respondra."
3 Welwod, op. cit. Tit. xv ; Malynes, op. cit. 121. 4 Ibid
6 Select Pleas of the Admiralty (S.S.) i 131 (1544-1545) — in such a case the master
and crew were liable to indemnify the owner.
s Above 250 n. 7; cp. Marsden, Collisions at sea (6th ed.) 63 n. 1.
7 Select Pleas of the Admiralty (S.S.) ii lxxi (1575-1576) lxxvi.
8 Above 228-229. 9 (1691) 2 Salk. 440 ; 3 Mod. 321.
10 2 Salk. 440.
THE MASTER AND CREW 253
of shipowner and master ; and we shall see that Holt, by giving
it a wide extension, introduced into English law the modern
principle of the employer's liability for the torts of his employe,
and helped to free the common law from the restrictions imposed
by the idea that the employer's liability for these torts depended
solely on the law of agency.1
I think therefore, that the recognition by the common law of
these new principles owed something to the rules which, from the
basis of the civil law, had been evolved in the court of Admiralty,2
It was, in fact, only natural that, as the necessities arising from a
larger commerce were felt in the court of Admiralty at an earlier
period than in the courts of common law, we should get in the
court of Admiralty the earliest traces of the existence of a prin-
ciple of modern law which was introduced in consequence of those
necessities. In the court of Admiralty the principle was based on
the technical reasoning and analogies derived from the civil law :
at the common law it was based mainly on expediency, and
perhaps to some extent upon certain exceptions to the mediaeval
rules which governed an employer's liability. Here, as in other
cases, ideas were borrowed almost unconsciously, when the
influence of the commercial business, of which the common law
courts had deprived the court of Admiralty, began to be felt. Of
the manner in which these principles were developed by the
common law I shall speak more fully in the following chapter.
The master's relation to his crew was founded mainly on the
provisions to be found in the laws of Oleron.3 We see the old
rule that the master should consult with his crew as to the ex-
pediency of making a start from port,4 as to the necessity of
making a jettison,5 or of borrowing money on a foreign port.6
We see the old rules as to the case of a seaman who had become
sick in the service of the ship." Similarly the law as to rights
and duties of the crew were founded mainly on the laws of
Oleron. We see the old rule that the mariner was entitled to
carry a small portion of merchandize, or to receive compensation
if he did not.8 The rule was still maintained that if the ship was
cast away, so that no freight was earned, no wages were payable 9
1 Below 474-475.
2 We shall see that there are certain earlier cases in which a larger liability had
been hinted at, below 453, 473 ; but it was in the case of Boson v. Sandford 2 Salk.
440 that the new principle was for the first time firmly established, below 474.
3 Vol. v 120-125. * Welwod, op. cit. Tit, viii. 5 Ibid Tit. xvii.
6 Ibid Tit viii. 7 Ibid Tit. x ; vol. v 121.
8 Ibid ; Welwod, op. cit. Tit. xi — " a mariner may either keep his portage in his
own hand or put forth the same for freight"
9 Jonson c. Bannister (1560) Select Pleas of the Admiralty (S.S.) ii 25 — " That
the marrynors gonners and other ministers whosoever in eny ship or vessel laboring
and travayling upon the seaes shall as well abide beare and suffer thadventure and
losse of theire wages and salarie if the shippe or vessell wherein they sayle and serve
254 THE LAW MERCHANT
— "freight is the mother of wages." On the other hand, if the
voyage was abandoned, half wages were due ; x and these rules
existed in substantially their old shape down to the passing of the
Merchant Shipping Act of 1854.2
The Contract of Carriage
At the present day " a trading ship is employed by virtue of
two distinct species of contract : First, the contract by which an
entire ship, or at least the principal part thereof, is let for a
determined voyage to one or more places ; this is usually done by
a written instrument signed and sealed, and called a charter party.
Secondly, the contract by which the master or owners of a ship
destined on a particular voyage, engage separately with a number
of persons unconnected with each other, to convey their respective
goods to the place of the ship's destination. A ship employed in
this manner is usually called a general ship."3
It would appear from Malynes that he was only acquainted
with the first of these methods of employing a ship. If one
merchant could not load the ship, several joined to charter her.
No ship, he says should be freighted without a charter party,4
and bills of lading should be drawn up to declare the contents of
the cargo, and to bind the master to deliver in accordance with the
charter party.5 It is clear from his account, and from the speci-
mens of these documents which have come down to us from this
period, that these documents had almost attained their modern
form.0 Here I shall first of all say something of the charter party
by mysadventure of the seaes or tempest do perishe in that viage as the owners and
laders shall and must in like case beare suffer and sustayne thadventure of theire sayd
shipp and goods " ; lawyers of the early nineteenth century justified the rule as the
counterpart of the rule that gave him his wages, though disabled by sickness in the
service of the ship — " As a seaman is exposed to the hazard of losing the reward of
his faithful service during a considerable period in certain cases, so on the other hand
the law gives him his whole wages, even when he has been unable to render his ser-
vice, if his inability has proceeded from any hurt received in the performance of his
duty, or from natural sickness happening to him in the course of the voyage," Abbott,
op. cit. 424 ; the historical reason is much more probably to be found in the fact
stated in Jonson v. Bannister that the seaman took a share in the adventure — he was
entitled to ship goods of his own and get freight for them ; this is rendered the more
probable by the fact that other rules seem to assume that he was a sharer in the
adventure, above 253 n. 8 ; no doubt the rule was retained when this practice became
obsolete in order to induce the men to do their best for the ship.
1 Tye c. Spryngham (1561) ibid ii 122-123 ; Thorneton c. the " Elizabeth
Bonaventure," and Jobson owner (1565) ibid ii 131-132.
2 17, 18 Victoria c. 104 § 183 ; reinacted 57, 58 Victoria c. 60 § 157.
3 Abbott, op. cit. 112.
4 Op. cit. 97; Welwod, op. cit. Tit. vii — "and this charter party, among all
the western merchants, and those of the great ocean, usually is made to perform all
things requisite by the laws of Oleron."
8 Malynes, op. cit. 97.
6 Ibid op. cit. Part I. c. xxi ; Select Pleas of the Admiralty (S.S.) i 35-37
(1531) ; 81-83 (1538)— charter parties ; ibid i 61-62 (1538); 112-113 (1541); 126-128
(1544-1546) ; ii 59-64 (1549-1570) — bills of lading.
THE CONTRACT OF CARRIAGE 255
and the bill of lading ; and, secondly, of the rules which determined
the nature of the obligations of the parties to these contracts to
carry.
(i) Under the ordinary contract of charter party the master
or owner of the ship acknowledges that he has let the ship to a
merchant, and promises to make the ship ready by a fixed date to
take in the goods provided by the merchant He promises that
he will sail with the first convenient wind to the port stipulated,
and that he will deliver the goods in good condition to the
merchant or his factor in accordance with the bills of lading. The
ship is to remain at that port for a fixed period to take in such
goods as the merchant or the factor shall load in her, return to
the port from which she started, and deliver the goods in good
condition. The master or owner also covenants that the crew shall
consist of so many persons, shall be armed in such a way, and shall
be furnished with all proper gear. The merchant, on the other hand,
covenants with the master or owner to load the ship within the
time stipulated, and to pay so much a ton for freight, on the dis-
charge of the goods, and other customary payments such as
primage,1 petilodeminage a or pilotage, and average.3 Both sides
bound themselves in a penal clause to fulfil their covenants with
the addition, Malynes says,4 of other clauses or conditions designed
to prevent future litigation. Instances of such other conditions to
be found in charter parties of this period are clauses exempting
the owner from liability for accidents,5 providing that certain mis-
chances shall constitute a general average loss,6 or stipulating that
the value of any prizes taken by the ship shall be distributed in
certain proportions.7
Probably the origins of the bill of lading are to be found in the
custom of entering the goods shipped on the ship's book or register ;
and the rule, resulting therefrom, that the owner or master was not
liable for goods not so entered.8 In the days when the merchants
travelled with their goods this entry would be sufficient.9 But
when the merchant ceased to travel, and sent the goods to a given
consignee, separate documents would obviously become essential ;
1 A small payment to the master for his care and trouble, Abbott, op. cit. 270 ;
but in the seventeenth century both primage and average were explained as a gratuity
to the seamen for care of the cargo, Select Pleas of the Admiralty (S.S.) ii lxxxi.
2 I.e. Petty Lodemanage or pilotage.
8 In this connection the word average " denotes several petty charges which are
to be borne partly by the ship and partly by the cargo, such as the expense of towing
beaconage, etc." ; Abbott, op. cit 270, 271 ; to be distinguished from general average
as to which see below 263-265.
4 Op. cit 100. s Select Pleas of the Admiralty (S.S.) i 137 (1545).
6 Ibid ii 64 (1562). 7 Ibid i 37 (1531).
8 Bennett, the History and present position of the Bill of Lading 4-6.
•See Thomas, Early Mayor's Court Rolls 244-245 for a case of 1305-1306 which
turns on this custom.
256 THE LAW MERCHANT
and it is clear that, if disputes are to be avoided, it will be desirable
that each of the parties interested, the consignor, the master of the
ship, and the consignee, should have a copy.1 The first of these
developments had taken place at the beginning of the sixteenth
century. The bill of lading, like the old entry on the ship's
register, was the only evidence of the goods loaded ; and the
owners were not liable for any goods not therein contained.2 The
second took place in the course of the same century. There is a
clear reference to bills drawn in a set of three in 1539 ;3 and it
was a settled custom when Malynes wrote. He says : i "Of these
bills of lading, there is commonly three bills of one tenor made of
the whole ship's lading, or of many particular parcels of goods, if
there be many laders ; and the mark of the goods must therein be
expressed, and of whom received, and to whom to be delivered.
These bills of lading are commonly to be had in print in all places
and several languages. One of them is enclosed in the letters
written by the same ship, another bill is sent overland to the factor
or party to whom the goods are consigned, the third remaineth
with the merchant, for his testimony against the master, if there
were any occasion or loose dealing ; but especially it is kept for to
serve in case of loss, to recover the value of the goods of the
assurors that have undertaken to bear the adventure with you."
It is clear from this passage of Malynes that when he wrote
the form of the bill of lading had become stereotyped ; and this is
borne out by the records of the court of Admiralty. The earlier
specimens are somewhat informal in character ; but, by the middle
of the sixteenth century, they are very near to their modern
form.5 Thus a bill of lading of the year 1 534 c declares that
John Desallez, merchant of London, has loaded at Rouen in a ship
called the George of Legh, the master of which is Thomes Karre,
so much wine and so many apples, marked with his mark, to be
carried to London, " exceptid the casalties and dangers of the
sea." The master promises to deliver the goods to the said
merchant, his factor, or assigns, he or they paying the freight,
primage, and average.
1 Bennett, op. cit. 6, 7.
3 The following statement was made in 1534 in the case of Chapman c. Peers,
Select Pleas of the Admiralty (S.S.) i 44 — " Proprietarii et magistri seu exercitores
navium aut eorum bursarii non tenentur neque debentur aut eorum aliquis non ten-
entur aut debet respondere pro bonis aut rebus in navibus suis invectis seu impositis
que in libro raciocinii Anglice the boke of ladvng communiter dicti et nuncupati per
dictosmercatores aut eorum factores non inscribuntur me. cionantur aut inseruntur " ;
see Diamond Alkali Export Corporation v. Bourgeois [1921] 3 K.B. at p. 449 where
McCardie, J., accepts this view of the origin of the bill of lading.
3 Select Plea of the Admiralty (S.S.) i 89 ; for another instance of the year 1546
see ibid 127-128.
4 Op. cit. 97. 8 See references above n. 3.
6 Select Pleas of the Admiralty (S.S.) ii 61.
THE CONTRACT OF CARRIAGE 257
It is clear from the form of the bill of lading that the parties
intended that delivery should be made to the consignee, to whom
the bill has been sent. It is obvious, therefore, that it was a
document entitling the consignee to the goods,1 provided that he
pays the freight.2 But these bills usually provided that delivery
should be made to the consignee "or his assigns." Hence, if it
were assigned, the assignee could demand delivery. In other
words the assignment of the bill of lading passed the property in
the goods. This rule was probably established in the court of
Admiralty in the sixteenth century ; 3 and it was accepted by the
courts of common law in 1697. Holt, C.J., said that "the con-
signee of a bill of lading has such a property as that he may
assign it over. And Shower said that it had been adjudged in
the Exchequer." *
It is probable that the court of Admiralty was prepared to go
further, and hold that it was not only assignable but negotiable.
In Charles I.'s reign a shipmaster was sued in the Admiralty for
delivering a bar of silver to one who had fraudulently obtained
the bill of lading. Judgment was given for the defendant ; but
the owner of the silver got a prohibition and brought an action at
common law.5 It is probably this action of the common law
courts which has prevented a bill of lading from becoming a
negotiable instrument. Though it resembles a negotiable instru-
ment in the mode by which it can be transferred, it lacks the
essential quality of negotiability — a bona fide holder for value
cannot get a good title from a holder who had none, and it is not
assignable " free from equities." 6 It is simply a contract to carry
certain goods which operates as a document of title to these goods.
But in one respect the court of Chancery modified the strictness
of the common law rules. We have seen that it gave to the
unpaid vendor the right to stop the goods in transitu on the
bankruptcy of the consignee." But as yet neither the common
law rules as to bills of lading, nor the doctrine of stoppage in
transitu, have been elaborated. This will be the work of the
eighteenth and nineteenth centuries.
1 We get in 1544 and 1546, Select Pleas of the Admiralty (S.S.) i 127, 128, the
proviso that if one bill is performed the others are to lose their effect ; as Mr. Bennett
says, op. cit. 10, " these provisions seem clearly to contemplate the transfer of the bill
of lading as a document of title to the goods shipped — if it had not been customary for
the delivery of the goods to be made to the holder of the bill of lading the words which
provide that if one bill should be performed the others should be of none effect, would
be meaningless."
2 See Select Pleas of the Admiralty (S.S.) i no.
3 See Hurlocke and Saunderson c. Collett (1539) Select Pleas of the Admiralty
(S.S.) i 88, 89.
4 Evans v. Marlett (1697) 1 Ld. Raym. 271.
5 Select Pleas of the Admiralty (S.S.) ii boori.
6 Above 166-167. 7 Above 243.
VOL. VIIL — 17
258 THE LAW MERCHANT
(2) The records of the court of Admiralty, and, at the close
of this period, the cases decided in the common law courts, show
that the obligations undertaken by the parties to the contract of
carriage were giving rise to a number of definite rules of law.
The master or owners were liable if they failed to supply the
ship at the stipulated time. In such a case the merchant could
decline to employ the ship, or, if he employed her, he was
entitled to recover any damages which he had sustained * They
were also liable if they failed to deliver the goods,2 or if the goods
arrived in a damaged condition owing to negligent stowage,3 to
the unseaworthiness of the ship,4 or to any other form of wrongful
act ; 5 and this liability for the safety of the goods lasted till the
cargo was discharged on to the quay or into a lighter.6 We shall
see that losses occurring through acts done to preserve the ship
and cargo were governed by special rules.7 But how far the
master or owners were liable for losses, other than those resulting
from acts done to preserve the ship and cargo, which did not arise
through their fault, was not very clearly settled in this period.8
This uncertainty was to a certain extent aggravated by the
different rules laid down by the civilians and the common lawyers.
The civilians naturally grounded liability upon dolus or culpa.
Therefore they were inclined to hold that, though a person was
liable even for accidental loss if he contracted to be so liable, he
was not otherwise liable.9 Thus for a loss arising from an attack
by pirates,10 or for damage done by rats if there was a cat on board,11
1 Malynes, op. cit. 98 ; Welwod, Tit. vii — " except the master show some excuse
of a notorious necessity, or of a chance that could not be eschewed : and then he loseth
only his freight " ; see Thomas, Early Mayor's Court Rolls 243-245.
2 De Neronia c. Burye (1540) Select Pleas of the Admiralty (S.S.) i 113 ;
Symonds c. Danyell (1541) ibid 105-106 ; Revell c. Bona Stringar (1562) ibid ii
124-125.
3 Ritzo c. Pignea (1597) ibid ii 184-185 ; Dybdale c. Holmes (1556) ibid ii 101
(bad stowage).
4 Borneley c. Troute (1586) ibid ii 163-164 (unseaworthiness); Welwod, op. cit.
Tit. ix.
5 Arnolde c. Anthonison (1551) Select Pleas of the Admiralty (S.S.) ii 14 (goods
negligently thrown overboard); in Vawse c. Bygot (1540) ibid i 110-111 there is a
statement of the general principle — " that the proprietary master or mariner of the
shippe . . . ought and is bounden ... to redeliver the same goods in portu destinato
to the person that the same goods were consigned unto in as good condicion as thei
were received and taken into the shippe."
6 Ladyngton c. Hussey (1552) ibid ii 80-81. 7 Below 263-265.
8 Bodacar c. Block (1571) Select Pleas of the Admiralty (S.S.) ii 146 — liability
for non-delivery though the loss was caused by tempest and pillage ; cp. ibid i 137
(x545) — a clause exempting the shipowner from liability from certain accidents ; cp.
Taylor c. Pennincke (1602) ibid ii 202-203— the shipowner specially undertakes all
risks ; Jaques c. Hulson (1545) ibid i 137 — absence of negligence pleaded as a defence ;
cp. Welwod Tit. ix — the master is only liable for " fault, negligence or chance
eschewable."
6 Taylor c. Pennincke, last note. 10 Welwod, op. cit. Tit. xviii.
11 Ibid Tit. vii — " the master also must be answerable for that harm which the rats
for want of a cat do in the ship to any merchandise,"
THE CONTRACT OF CARRIAGE 259
he would not be liable. But the common law did not ground civil
liability upon dolus or culpa. It grounded it upon the fact that
the defendant had done some act to the damage of the plaintiff,
under such circumstances that the defendant, either by his own
contract or by the law, was obliged to compensate the plaintiff.1
It followed from this principle that a bailee was not excused if the
property entrusted to him was damaged by accident ; and this strict
rule was maintained all through this period.2 Now a carrier is
only a bailee of a particular kind. It followed therefore that a
carrier, whether by land or water, was not excused merely because
the goods had perished without his fault — he was not excused, for
instance, if they had been stolen, in spite of the fact that he had
taken all reasonable precautions against thieves.3 The result was
that different rules were applied to determine the carrier's liability
according to whether the loss occurred at sea and therefore within
the jurisdiction of the Admiralty, or whether it occurred within the
body of a county and therefore within the jurisdiction of the
common law courts.4
That the common law rules were felt to be too strict is clear
from Coke's advice to bailees to make special contracts limiting
their liability.5 His advice was followed;6 and both the incon-
veniences resulting from the strictness of the common law rules,
and from the conflict between the rules of the common law and
those of the civil law, were to a large extent obviated by the
introduction, into charterparties and bills of lading, of clauses ex-
cluding the liability of owners and masters in certain cases.
As a general rule neither freight nor wages were due if the
goods were not carried to their port of destination.7 Of course
much depended on the terms of the particular contract. But here
again there was, at this period, a divergence between the rules of
the common law and the rules of the civil law. As in the case of
1 Vol. iii 375-377-
2 Holmes, Common Law 178-180; Southcot v. Bennet (1601) 4 Co. Rep. 83b;
vol. iii 344; above vol. vii 451-452.
3 Woodlife's Case (1597) Moore 462 ; Holmes, op. cit. 181 ; Symons v. Darknoll
(1628) Palmer 523, Kenrig v. Eggleston (1648) Aleyn 93, cited Holmes, op. cit. 191.
4 This is brought out by the case of Morse v. Slue (1672) 1 Mod. 85, cited Holmes,
op. cit. 192-195 ; in 1 Mod. 85 n. a it was said that, " the master could not avail
himself of the rules of the civil law, by which masters are not chargeable pro damno
fatali."
*Southcote's Case (16 ji) 4 Co. Rep. at p. 84a.
' A case of 1554 is the earliest case of a bill of lading in which the exception of
perils of the seas occurs, Select Pleas of the Admiralty (S.S.) ii 61 ; as to the way in
which this exception was construed in later times see Abbott, op. cit. 252 seqq.
7 Above 253 n. 9 ; cp. Le Buck c. Van Voisdonck (1554) Select Pleas of the
Admiralty (S.S.) ii 93 — a decree for the repayment of prepaid freight when the voyage
had not been performed ; among the cases on the early court rolls of the Mayor's Court
at pp. 192-193, there is a case in 1305, where the agreement as to the port of destination
was varied by the shipper's super cargo.
260 THE LAW MERCHANT
liability for damage to the goods carried, so in respect to freight
and wages, the common law at this period took a stricter view of
the obligation of the ship than the civil law. The common law
judges seem to have held that the ship earned no freight, even
though part of the voyage had been performed, and even though
the failure to complete it was caused by no fault of the master.1
On the other hand, the civil law held in such a case that freight
and therefore wages were due for the part of the voyage per-
formed ; 2 and it is this more equitable principle which has prevailed.3
Similarly Malynes repeats the rule laid down in the laws of Oleron
that if the ship was wrecked, the merchant must pay freight on the
goods saved.4 He must also pay freight if the ship became dis-
abled, and the goods were transhipped and so carried to their
destination.5 Any deviation from the proper route, unless caused
by inevitable necessity, was a breach of the contract.6
On the other hand, the merchant who had chartered a whole
ship must provide a cargo for the ship at the day appointed.7 He
was liable to pay the freight stipulated, whether or no he had
filled her with cargo ; 8 and the master could refuse to deliver the
goods until his freight and other charges were paid.9 He must
pay demurrage if he delayed to load the ship beyond the stipulated
period ; 10 and he was liable for any damage caused to the ship by
the character of the cargo with which he had loaded her.11
Some of the cases of this period, which relate in the colourless
language of the pleader the history of the ships employed under
these contracts of carriage, contain romances of the sea worthy of
1 Bright v. Cowper (1612) 1 Brownlow 21 — voyage not completed owing to
capture by pirates.
2 Malynes, op. cit. 98 — " but if the ship in her voyage become unable without the
master's fault . . . the master may either mend his ship or freight another. But in
case the merchant agree not thereunto, then the master shall at least recover his freight
so far as he hath deserved it " ; Molloy Bk. II. c. 4 § 7, after citing the case of Bright
v. Cowper, says that it would have been decided differently by the civil law, see the
passage cited Abbott, op. cit. 313 ; it was the rule laid down in the laws of Oleron § 4,
above vol. v 122.
3 Anon. (1701) 1 Ld. Raym. 639; Jones v. Hart (1700) ibid 739; Abbott, op. cit.
294 seqq.
4 Op. cit. 101 ; vol. v 122.
5 Laws of Oleron § 4, vol. v 122 ; the principle was followed by the House
of Lords in Lutwidge v. Gray (1737), cited Abbott, op. cit. 298-301.
6 Select Pleas of the Admiralty (S.S.) i xlvi ; Malynes, op. cit. 121 ; Early Mayor's
Court Rolls 243.
7 Welwod, op. cit. Tit. vii.
8Coke c. Fliett (1542) Select Pleas of the Admiralty (S.S.) i 115; Gourden c.
Lovelake (1552) ibid ii 82-83.
9Vawsec. Bygot (1540) ibid i iio-ni ; Bell c. Bryde (1553) ibid ii 84 — " whoso-
ever receives any goods out of any ship or boat at the place of their discharge is bound
first and before all to provide and pay the freight . . . due to such ship or boat to the
master purser or mariners of the same, immediately after the discharge of such goods,
or at least according to the contract of affreightment made and entered into."
10Thurstone c. More (1557) ibid ii 98-99. ll Ibid.
THE CONTRACT OF CARRIAGE 261
Hakluyt's pen. Perhaps the best is that related in the last of Mr.
Marsden's Select Pleas.1 A London ship was chartered for Lagos.
While off Lagos it was attacked by Portuguese, captured, and the
crew confined under hatches. The crew blew up the deck with
gunpowder and with it their captors, and so regained possession of
their ship. They then worked the crippled ship back to London
with her cargo intact. It is satisfactory to learn that the court
gave the ship half her freight to the use of the owners and crew.
Some Incidents of the Contract of Carriage
Under this head I shall consider certain incidents of the con-
tract of carriage by sea, which, in this period, had already given
rise to a number of legal rules.
Bottomry and Respondentia.
If a ship is in a foreign port,2 either the owner or, in case of
necessity, the master,3 can borrow money on the security of the
ship, or of ship cargo and freight. A loan thus contracted is called
a loan upon " bottomry" — a Flemish term derived from the figura-
tive use of the bottom or keel to express the whole ship.4 Simi-
larly the owner of the cargo, or the master in case of necessity,
could borrow money on the security of the cargo laden on the ship.
To such a loan the term " respondentia " is applied.5 In both cases
the lender can only recover the money lent if the ship arrives safely
at her destination ; 6 and, because the lender takes the risks of the
voyage, the interest charged is proportionately high.7
The term bottomry first occurs in the records of the court of
Admiralty in I 593 ; 8 and we have a reference to the contract of
respondentia (though not under that name) in Malynes' work.9
But both contracts were well enough known in Italy in the four-
teenth century ; 10 and, in their modern form, they are developments
of very much older contracts. In Greek law, in Roman law under
the name of pecunia trajectitia, and in early mediaeval law, we meet
with contracts of loan, under which the money lent was only repay-
able if the ship arrived safely.11 But these earlier contracts differ
from the later contracts of bottomry and respondentia. M. Bensa
'Steveins c. Savidge (1602) Select Pleas of the Admiralty (S.S.) ii 205-206.
2 Smith, Mercantile Law (nth ed.) i 576, 577 n. g. 3 Above 248-249.
4 Cargo ex Sultan (1859) S\v. Ad. at p. 510 ; cp. The Atlas (1827) 2 Hagg. Ad. at
p. 58.
5 Ibid. * Smith, Mercantile Law i 574 ; cp. Bl. Comm. ii 458, 459.
7 Smith, Mercantile Law i 575 ; Bl. Comm. ii 459 ; Malynes, op. cit. 122.
8 Select Pleas of the Admiralty (S.S.) ii 176 ; for earlier instances of the contract
in the Admiralty records iee ibid i 55 (1536), 92-93 (1541) ; ii 77 (1573).
9 Op. cit. 122-123.
10 Bensa, Histoire du Contrat d' Assurance au Moyen Age (French tr.) 14-15.
11 Ashburner, the Rhodian Sea Law ccxii-ccxxxiv ; VVelwod, op. cit. Tit. xiv.
262 THE LAW MERCHANT
has pointed out that the pecunia trajectitia gave the creditor no lien
on the ship or cargo — indeed the borrower was not necessarily the
owner of either. The creditor had only a general lien on the goods
of the debtor, if this lien had been expressly conferred upon him.1
But gradually the practice grew up of making the property subject
to the risk primarily liable to pay the debt. This development
was beginning to take place in Italy in the thirteenth century."
When it was complete, the loan on bottomry acquired its distin-
guishing characteristic of conferring upon the lender a lien on the
ship, in addition to the power to enforce payment from the owner
personally ; 3 and the same consequences followed from the contract
of respondentia made by the owner of the cargo, or by the master
acting as his agent.4
A little later a further development took place, to meet the
most usual case in which the loan on bottomry or at respondentia
was made — the case where it was made by the master in case of
necessity.5 Here, instead of giving rise to a merely personal right,
it created a real right. No personal liability was incurred : the
property over which the lien is given was solely liable.6 In some
countries this species of loan on bottomry or at respondentia wholly
superseded similar loans contracted by the owner of ship or cargo.7
Thus the contracts of bottomry and respondentia assumed their
modern form, and fell apart from those contracts of loan under
which money was borrowed (to be repaid on the prosperous ter-
mination of the voyage) simply on the personal credit of the
borrower.8 The former, as M. Bensa says, originate, not in the
classical Roman law, but in the development of that law which
1 Bensa, op. cit. 14 — " Le preteur ne jouissait d'aucune garantie sp£ciale sur les
choses soumises au risque, pr£cisement parce que rien ne d^monttait qu'elles appar-
tinssent a Femprunteur ; il n'avait que droit de gage general sur tous les biens presents
ou futurs de son debiteur, et ce droit lui meme resultait dune clause de style par laquelle
le debiteur autorisait le creancier a se mettre de lui meme en possession des biens et a
les vendre sans intervention de justice."
2 " Peu a peu a l'obligation generate du patrimonie se substitua l'obligation speciale
de l'objet soumis au risque, et le contrat . . . cr£a un droit r£el . . . Cette maniere
de contracter entree en usage au trezieme siecle. se maintint pendant les siecles sui-
vants avec des changements peu importants,'' ibid; cp. Ashburner, op. cit. ccxxix-
ccxxxi, for instances of documents in which there is a special pledge of the ship, or of
specified goods, or of all the borrower's goods.
3 Park, Marine Insurances (1st ed.) 469.
4 Ibid ; Bensa, op. cit. 14-15. 5 Ibid.
6 Abbott, Merchant Shipping (14th ed.) 209 ; Stainbank v. Fenning (1851) 11 C.B.
5*.
7 Bensa, op. cit. 15-16 — this happened at Barcelona ; " Les ordonnances de 1345
y prescrivirent que le prestamo a ricsgo de mar revetit la forme d'un acte public ou in-
terviendraient la capitaine et l'ecrivain du navire pour declarer tous deux, sous la foi
du serment, que les sommes empruntdes a la grosse aventure Pdtaient r£ellement par
suite de n6cessit6s urgentes . . . toutes circomstances qui devaient £tre sp£cific£s
dans le contrat."
8 Park, op. cit. 469, 470.
THE CONTRACT OF CARRIAGE 263
took place in the commercial cities of Italy in the Middle
Ages.1
We have seen that in all these varieties of contract the lender
took the risks of the voyage ; but only the risks of the voyage.
" Therefore if the money miscarry either before the voyage begun
or after the term appointed for the full loan, then the peril pertains
to the borrower thereof and not to the lender."2 Similarly, if the
money were lost by the negligence of the borrower, he must repay
it3 The records of the court of Admiralty show that at this period
some of these principles, applicable to loans on the personal credit
of the borrower, were applied also to loans on bottomry. In the
case of Austen c. Cattelyn (1541)4 it was contended that money
borrowed by the master for the use of the ship was repayable,
although the ship had been lost, because (as the lenders alleged)
she was unseaworthy from the start, and the master, having dis-
charged the greater part of the cargo, had deliberately cast away
the ship with the rest of the cargo, in order to avoid payment of
the loan.
We shall see that these contracts are important in the history
of the development of the contract of marine insurance.5 As late
as this period the contracts of respondentia and insurance were
sometimes combined in one transaction ; 6 and the connection
between them has always been intimate and obvious." As Park
says, " the lender on bottomry or at respondentia runs almost all
the same risks, with respect to the property, on which the loan is
made, that the insurer does with respect to the effects insured." 8
Average.
We have seen that the laws of Oleron provided that when a
jettison was made to save the ship, the ship and cargo, if saved,
must contribute to the loss. We have seen, too, that the rules
laid down in these laws were modified by an ordinance of Edward I.,
1 As M. Bensa has shown, op. cit 11-13, the distinguishing feature of these con-
tracts, and their essential novelty, have been obscured by the speculations of the jurists
of the fifteenth and sixteenth centuries and later, who were intent upon proving that
they were the same as the pecunia trajectitia of Roman Law, and that they were not
usurious ; as M. Bensa says, at p. 11, these contracts in their modern form have their
roots in the commercial customs of the Middle Ages ; it may be noted that they are
confused by Malynes, op. cit. 122 ; but not by Welwod, Tit. xiv, who in that title only
deals with " money lent to sea called Nauticum Foenus."
2 Welwod, op. cit. Tit, xiv. s iD,d.
4 Select Pleas of the Admiralty (S.S.) i 106-110.
5 Below 277. s Malynes, op. cit. 122-123.
7 Thus in Joy v. Kent (1665) Hardres 418, to an action on a bottomry bond, it
was pleaded that the rate of interest was usurious ; Hale, C.B., held that the usury
laws could not apply ; he said, " this is the common way of insurance, and if this was
void by the statute of usury trade would be destroyed " ; as we shall see, below 275,
the extra rate of interest is in the nature of a premium paid to the lender for the risk
he runs.
8 Park, Marine Insurances (1st ed.) 473.
264 THE LAW MERCHANT
which provided that the ship should lose the freight on the
goods jettisoned, but should not contribute to such a loss.1 Dur-
ing this period the question what losses should be considered
to be general average losses, and what property was liable to
contribute to such losses, was worked out in some detail.2
The principle of the law is contained in the Digest. " It is
provided by the Rhodian law that if merchandize is thrown
overboard to lighten the ship, the loss occasioned for the benefit
of all must be made good by all."3 It was necessary that the
goods should be deliberately cast away to ensure the safety of the
rest ; and so the accidental destruction of part of the ship's gear
in a storm gave rise to no such claim,4 since it was not deliberately
destroyed to save the ship.5 The writers of this period repeat the
older rules as to the necessity for a previous consultation before a
jettison was made ; 6 and these rules lived on in some continental
codes.7 As Abbott pointed out, they were not very useful for the
purpose for which they were invented, i.e. to secure that a jettison
should only be made in a case of real danger ; 8 and they have
long ceased to be rules of English law.9
The case of jettison was the earliest case in which a general
average contribution could be demanded. But the principle was
easily extended to other cases where ship or cargo had suffered
for the good of all. Thus Welwod enumerates the cases of money
paid to redeem the ship or goods from a pirate ; 10 damage occas-
sioned to the goods and the ship by reason of a jettison ; u goods
lost in consequence of their being unladen into a lighter, for the
purpose of enabling the ship to take refuge in harbour, in order to
avoid some danger, or to repair ; 12 and collision, where neither
1 Vol. v 123, 124.
2 Welwod, op. cit. Tits, xvii-xxi ; Malynes, op. cit. 109-114 ; Ridley, A view of
the Civil and Ecclesiastical Law 121-124.
3 Dig. 14. 2. 1. — " Lege Rhodia cavetur, ut, si levandag navis gratia jactus mercium
factus est, omnium contributione sarciatur quod pro omnibus datum est."
4 Welwod, op. cit. Tit. xvii.
5 Dig. 14. 2. 2. 1 — " si conservatis mercibus deterior facta sit navis aut si quid
exarmaverit, nulla facienda est collatio, quia dissimilis earum rerum causa sit, quae
navis gratia parentur et earum, pro quibus mercedem aliquis acceperit : nam et si
faber incudem aut malleum fregerit, non imputaretur ei qui locaverit opus. Sed si
voluntate vectorum vel propter aliquem metum id detrimentum factum sit, hoc ipsum
sarciri oportet."
fi Welwod, op. cit. Tit. xvii ; Malynes, op. cit. 113 ; vol. v 123.
7 Abbott, op. cit. 329, 330.
8 " Emerigon, torn, i p. 605, cites an observation of Targa, who says, that during
sixty years, in which he had been a magistrate at Genoa, conversant with this subject,
he had known only Jive instances of regular jettison, all of which were suspected of
fraud, because the forms had been too well observed," Abbott, op. cit. 330 n. g.
9 It may be doubted whether they were part of English law at this period ; in the
case of Whitefeld c. Garrarde (1540) Select Pleas of the Admiralty (S.S.) i 95 no men-
tion is made in the pleading of any preliminary consultation ; cp. Mouse's Case (1609)
12 Co. Rep. 63.
10 Tit. xviii. "Tit. xix. 1J Tit. xx.
THE CONTRACT OF CARRIAGE 265
ship was in fault.1 It was held also in 1575 that, where some
part of a cargo of clothes had been taken by the king of Denmark
for toll, contribution must be made by the merchants whose
clothes had not been taken.2 But it was laid down by the House
of Lords in 1698, in the case of SJieppard v. Wright? that no case
for a general average contribution arose, unless it was the loss of
the goods which perished which contributed to the saving of the
goods which were preserved. So that where a ship was pursued
by enemies into a harbour, and there unloaded part of her cargo,
and then some days after the ship with the cargo left on board
was captured, the cargo unloaded was not liable to contribute to
the loss.
At this period it was settled that in case of a loss necessary to
the preservation of ship and goods, both ship and goods con-
tributed.4 In later law the freight also contributed ; 5 but it is not
clear that this was the rule at this period. Clothes, the personal
effects of passengers, and provisions, did not contribute.6 But
jewels, articles of clothing, and other things carried as cargo and
paying freight, were liable to contribute.7 At this period, the
goods lost were reckoned at their cost price if the loss occurred
before the middle of the voyage ; but at their market price at the
port of destination, if the loss occurred after the middle of the
voyage.8 But later English lawyers evolved a more logical rule.
If the ship gets to its port of destination the value is taken as at
that place, on the logical ground that "the person whose loss has
procured the arrival of the ship at the place of destination should
be placed in the same situation with those whose property has
arrived at that place ; which can only be done by considering his
goods as having arrived there also." On the other hand, if the
ship is compelled to return to the port from whence it started, the
goods only contribute according to the cost price.9
At this period the master could, as under the laws of Oleron,
retain the cargo till the merchants liable had paid their share of
the contribution.10
1 Tit. xx ; cp. Select Pleas of the Admiralty (5.S.) ii lxxxiv ; below 266.
2 The Elizabeth, Select Pleas of the Admiralty (S.S.) ii 39, 40.
3 Shower P.C. 18 ; cp. House of Lords MSS. iii no. 1268 ; and this it seems was
in accordance with the civil law as applied in the sixteenth century, Hicks v. Paling-
ton (1590) Moore, K.B., 297.
4 Welwod, Tit. xvii. 5 Abbott, op. cit. 345.
6 Welwod, op. cit. Tit. xvii ; the civil law rule was otherwise as to clothes and
articles of personal adornment, Dig. 14. 2. 2. 2.
7 Welwod, op. cit. Tit. xvii. 8 Ibid Tit. xxi. 9 Abbott, op. cit. 347.
10 Welwod, op. cit. Tit. xxi — " The imposed taxation, as likewise the freight, is
thought to stick firmly to the said goods ; and therefore the master may hold his hand
thereon, until satisfaction be made, albeit that commonly the withholding of other
men's goods be not allowed " ; vol. v 123.
2G6 THE LAW MERCHANT
Collision.
We have seen that the rules as to collisions by sea contained
in the laws of Oleron were both scanty and primitive.1 If one
ship intentionally collided with another ship at anchor, or, it would
seem, while under sail, the master of the former ship and the
merchants were liable to pay the whole of the damage ; but if the
collision occurred by accident or by negligence the loss was
divided between the two vessels and their cargoes.2
In 1 815, in the case of the Woodrop Sims,s the law as to the
incidence of liability for collision at sea was summed up by Lord
Stowell in four rules : — (1) If the collision was due to the fault of
neither vessel — if it was, in other words, a pure accident — no legal
liability is imposed on the owners of either vessel ; (2) if the
collision was due to the fault of both vessels, the loss must be
apportioned equally4 between the vessels; (3) if the collision is
due to the fault of the ship injured no legal liability arises; (4) if
the collision is due to the fault of the ship which has injured the
other, the injured ship can recover full damages. It was towards
the end of this period that the development of the law was begin-
ning which resulted in these rules. But it was only just beginning,
as all through the sixteenth century collision cases were very rare.5
At this period we can only indicate some of the remote causes
which shaped the law as we know it to-day.
We have seen that the rules laid down by the laws of Oleron
date from a period when the law, not yet having attained to the
conception of negligence, could not found liability upon it.6 But
the civilians who practised in the Admiralty naturally founded
liability upon dolus or culpa. Therefore it became necessary both
1 Vol. v 122-123.
2 Laws of Oleron § 15, Black Book of the Admiralty (R.S.) i 109 ; Early Mayor's
Court Rolls 223 and n. 1, from which these rules seem to have been accepted in 1305.
3 (1815) 2 Dod. at p.. 85 — " there are four possibilities under which an accident of
this sort may occur. In the first place, it may happen without blame being imputable
to either party, as when the loss is occasioned by a storm or any other vis major : in
that case the misfortune must be borne by the party on whom it happens to light ; the
other not being responsible to him in any degree. Secondly, a misfortune of this kind
may arise when both parties are to blame ; when there has been a want of due
diligence or of skill on both sides ; in such a case the rule of law is, that the loss must
be apportioned between them, as having been occasioned by the fault of both of them.
Thirdly, it may happen by the misconduct of the suffering party ; and then the rule
is, that the sufferer must bear his own burden. Lastly, it may have been the iault of
the ship which ran the other down ; and in this case the injured party would be
entitled to an entire compensation from the other."
4 Hay v. Le Neve (1824) 2 Shaw Sc. App. 395 ; cp. Stoomvaart Maatschappy
Nederland v. the P. and O. Steam Navigation Company (1882) 7 A.C. at pp. 818-819 /w
Lord Blackburn; this rule lasted till 1911; The Maritime Conventions Act of that
year (1, 2 George V. c. 57 § 1, 1) provides that where both vessels are in fault the
liability shall be " in proportion to the degree in which each vessel was in fault " ;
it is only if it is impossible to establish different degrees of fault that the liability is
apportioned equally, § 1, 1 a.
6 Select Pleas of the Admiralty (S.S.) ii lxxxiii. 6Vol. v. 122.
THE CONTRACT OF CARRIAGE 267
to reconsider and to supplement the rules contained in the laws of
Oleron. But the rarity of cases in the sixteenth century prevented
very much development All the cases decided seem to be cases
in which either the defendant or the plaintiff is clearly in fault.1
There could therefore be either a clear condemnation or a clear
acquittal. There is only one case in which a negligent master was
made liable to pay half damages ; '2 and there were no cases in
which neither or both the ships were to blame. Welwod's treat-
ment of the subject illustrates the scantiness of the law.3 He lays it
down that, if a collision occur through the fault of neither party, both
must contribute to the loss.4 This view of the law seems to have
been acted on at least once in the seventeenth century ; 5 and it
passed into the maritime law of some foreign states.*5 But Wel-
wod goes on to say that this rule will not apply if one of the
ships perish, assigning the reason given by the laws of Oleron."
On the other hand, he points out that a negligent master may be
answerable to the owner of his own or of the other ship by the
actio legis Aquiliae. The liability which he contemplates seems to
have been the liability of the master. This is in accordance with
the view that the owner is not liable for the master's negligence ; 8
and may perhaps partially account for the paucity of cases on the
subject In many cases the master would not be worth powder
and shot
In the seventeenth century cases of collision are more frequent.9
Was it because the lawyers were coming to the conclusion that the
exercitor, or managing owner of the ship, could be held liable for
the negligence of the master ? 10 Whatever the reason, it was clear
that a number of new problems awaited the judges of the court of
1 The plaintiff recovers in the following cases : — (1538) Spysall c. Walters,
Select Pleas of the Admiralty (S.S.) i 70-71 ; (1539) Gyllet c. Style, ibid 83 ;
(1544) Cocke c. Camp, ibid 133-135 ; (1546) Lorde c. Butter ibid 143-145 ; (1547)
Darcy c. Legg, ibid ii 6, 7 ; the defendant got judgment in the case of Daniell c.
Nokes(i587) ibid ii 167-168, on the ground that the collision was due to the plaintiff's
fault.
8 (x539) Handcocke c. Payne, Select Pleas of the Admiralty (S.S.) i 90 — a case
settled by arbitration.
3 Op. cit. Tit. xx.
4" If two ships rush and cross one over another, and the company swear their
innocence, as that it lay not in their power to stay the same, contribution must be
made for one equal upset of both their losses " ; it should be noted that Tit. xx, in
which he deals with collision, is entitled " Of contribution for lightening and dis-
burdening of ships for their easier entry to the port, and for other chances " ; cp.
Godolphin, Admiralty Jurisdiction, Introd.
5 Select Pleas of the Admiralty (S.S.) ii lxxxiv — a case of 1647.
' Abbott, op. cit 342 — as he says, in England in such a case, the owners of ship
and cargo bear their own loss ; such a misfortune was a peril of the sea ; and in this
English law agrees with the classical Roman Law, Dig. 9. 2. 29. 3.
7 Vol. v 122 n. 10.
8 Above 252. 'Select Pleas of the Admiralty (S.S.) ii Ixxxiii.
10 Above 252 nn. 6 and 7.
268 THE LAW MERCHANT
Admiralty. If the injured vessel or the injuring vessel was alone
to blame the law was plain enough. But what was to happen if
neither was to blame, or if both were to blame, or if the cause of
the collision was not clearly ascertainable ? In all these cases the
court seems to have gone on the principle of dividing the loss
between the two ships ; x and Mr. Marsden points out that at this
period the Dutch lawyers were also beginning to follow a similar
rule.2 The final settlement of the sphere of this rule— this judicium
rusticum as it has sometimes been derisively called — belongs to
the eighteenth and early nineteenth century.
We have seen that the Admiralty lawyers, being civilians,
naturally grounded liability upon dolus or culpa ; and the logical
consequence of this conception is the modern application of the
rule of the division of loss to the case where both ships are at
fault. When the common law came to found civil liability upon
negligence or wrongful intent,3 the principles which it applied
to the cases of collision which fell within its jurisdiction,4 did
not materially differ from the principles applied by the court of
Admiralty as laid down in the Woodrop Sims} The one great
difference was between the common law rule of contributory
negligence, and the Admiralty rule as to division of loss.6 And,
whatever may be the comparative merits of these two opposing
rules from the point of view of practical utility,7 it can hardly be
denied that, if liability for wrong is to be founded upon dolus or
culpa, the Admiralty rule is the more logical of the two.8 The
1 Select Pleas of the Admiralty (S.S.) ii lxxxiii-lxxxv ; Marsden, Collisions at Sea,
note to Chap. vi.
2 Select Pleas of the Admiralty (S.S.) ii lxxxv, citing Neostadius who says, " curia,
cum de culpa authore non constat, vel quod utrobique culpa par erat, damnun commune
ad utrumque spectare censuit, condemnavitque reum ut damni semissem praestaret,
sententiae executione in ipsam navem dirigenda mercesque sequestratas."
3 Below 447-459.
4 The common law courts had exclusive jurisdiction over claims for damage
suffered or committed by a ship within the body of a county ; and the court of
Admiralty was given a concurrent jurisdiction by 3, 4 Victoria c. 65 § 6, and 24
Victoria c. 10 § 7.
5Cayzer v. Carron Company (1884) 9 A.C. at pp. 880-8S1 per Lord Blackburn.
6 The Judicature Act 1873, 36, 37 Victoria c. 66 § 25. 9 enacted that, for the future,
the Admiralty rule was to prevad in all cases of collision between two ships.
7 See Marsden, Collisions at Sea 122, for a discussion of this question — as he says,
the Admiralty rule " prevents the innocent owner of cargo on board either ship from
recovering from the wrong-doing owner of either ship more than half his loss : and it
works in a very arbitrary and uncertain manner when combined with the statutory
limitation of liability."
8 In The Bernina (2) (1887) 12 P.D. at p. 89 Lindley, L.J., points out that, in a
case where the damage has been suffered by the combined negligence of the plaintiff
and defendant, the Admiralty rule as to the apportionment of damages is the more
logical ; cp. L. R. Scott, Collisions at Sea where both Ships are in Fault, L.Q.R. xiii at
p. 20 — " The Admiralty rule is really an advance upon the common law rule in the
direction of apportionment according to blame " ; we may regard the rule laid down
in the Maritime Conventions Act 1911, above 266 n. 4, as a still further advance in
the same direction.
THE CONTRACT OF CARRIAGE 269
common law rule is, as we have seen,1 the logical result of the
mediaeval principle of founding civil liability, not upon negligence,
but upon an act which causes damage — if the act which was the
immediate cause of the damage was that of the plaintiff he cannot
recover. The common law rule dates from a period before the
idea of negligence, as one of the foundations of civil liability, had
been acclimatized in the common law ; and though it may have
its merits as a rule of practical utility, neither its name nor its
contents altogether harmonize with modern foundations upon
which civil liability is now usually based.
Salvage.
That those who rescued persons or property from the perils of
the sea should be rewarded, is a principle recognized from the
earliest times.2 But right down to this period the rules of law
on this subject are scanty, and, to a large extent, turn upon the
character of the cases in which the claims arose.3 In the case of
goods wrecked or derelict, early statutes provided that, if man or
beast escaped, the owner should have them, if he claimed within a
year and a day.4 Such goods, if unclaimed, belonged to the crown,
and later to the Admiral, as Admiralty droits, unless the privilege
of taking them had been granted as a franchise to an individual or
a corporation.5 But those who had salved them were entitled to
a reward,6 the amount of which seems to have been quite uncertain,
though it was usually considered that the salvor should have half.7
In the case of goods recaptured from the enemy the amount to be
awarded was in the discretion of the court.8 In the case of a ship
in distress, which was not technically a wreck, the reward of the
salvors seems to have been treated sometimes as depending upon
the bargain made,9 sometimes as a matter to be determined by
the court.10 The law was therefore in a confused state. It is clear
1 Vol. iii 37S-379. 382 ; below 459-462. 2 Vol. v 85.
'Select Pleas of the Admiralty (S.S.) ii xxxii-xxxix.
4 3 Edward I. c. 14 ; 4 Edward I. c. 14.
5 On the whole subject of the early law of wreck see Select Pleas of the Admiralty
(S.S.) ii xxxix-xli ; vol. i 560-561.
*27 Edward III. st. 2 c. 13 — goods which cannot be called wreck are to be re-
stored to their owners, who are to pay those who have salved them the amount
assessed by sheriffs or other local officials with the advice and consent of four or six
"dez meillours et plus suffisauntes prodehomes du pays."
7 1" 1333 half was alleged to be due by custom, Select Pleas of the Admiralty
(S.S.) i. xxvi ; in a writ to the justices in 1377 to try a case of wreck, there is a direction
that a proper reward be paid to the salvors, ibid i xliv ; in Henry VIII.'s reign half
was awarded to the salvors of a ship, ibid i lxx ; in Maye c. Hawkyns (1573) ibid ii
149 there is a decree for ^938 out of a total value of £1150.
8 Saunderson c. Richardson (1546-1547) ibid i 146-148; Richardson c. Saunderson
(*553) ibid ii 87-88 ; in the latter case there is an allegation that by law only £5 was
due in such cases ; but the court evidently did not consider that this was the law.
9 Ibid ii xxxiii ; Home c. Delapyn (1538-1539) ibid i 66-67.
10 Maye c. Hawkyns (1573) ibid ii 149.
270 THE LAW MERCHANT
that the amount which could be fairly claimed must to a large
extent depend upon the circumstances of the particular case.
Therefore, in the course of the seventeenth century, the practice
grew up of allowing the court in all cases to assess the amount
due, upon proper proceedings being instituted for this purpose.
The first case in which this occurred was in 1633.1 It was a case
in which proceedings had been taken to have a ship condemned
as a wreck. " The owners and salvors intervened ' pro eorum
interesse,' and the salvors claimed a moiety of the property, 'or a
verie good and sufficient reward,' as due to them by custom. This
was the common form of a salvage action throughout the seventeenth
and eighteenth centuries." If the salvage service were performed
on land the common law courts prevented the court of Admiralty
from assuming jurisdiction. But they applied a similar rule. The
salvor could retain possession of the goods until a proper com-
pensation was made ; and, if the parties could not agree to the
amount, a jury could assess it on proper proceedings being taken.2
The Maritime Lien.
At the present day many of the incidents of the contract of
carriage by sea result in the creation of a maritime lien. The
maritime lien has been defined as " a privileged claim upon a
thing in respect of service done to it or injury caused by it, to be
carried into effect by legal process." 3 Thus it is " a right
acquired by one over a thing belonging to another — a jus in re
aliena. It is, so to speak, a subtraction from the absolute property
of the owner in the thing. This right must, therefore, in some
way have been derived from the owner, either directly, or through
the acts of persons deriving their authority from the owner. The
person who has acquired the right cannot be deprived of it by
alienation of the thing by the owner. It does not follow that a
right to a personal claim against the owner of the res always
coexists with a right against the res. The right against the res
may be conferred on such terms, or in such circumstances, that a
person acquiring that right obtains the security of the res alone,
and no rights against the owner thereof personally. A simple
illustration of this is the case of bottomry."4 The chief cases in
which a maritime lien arises at the present day are the cases of
bottomry, salvage, wages, masters' wages disbursements and
liabilities,5 and damage. Thus it appears that at the present day
1 Select Pleas of the Admiralty (S.S.) ii xxxvi-xxxvii.
2 Abbott, op. cit. 383-384.
3 The Ripon City [1897] P. at pp. 241-242 per Gorell Barnes, J.
4 Ibid at pp. 242-243.
5 The lien for masters' wages disbursements and liabilities was given by 57, 58
Victoria c. 60 § 167, 1 and 2.
THE CONTRACT OF CARRIAGE 271
a maritime lien can arise either ex contractu or quasi ex contractu
or ex delicto.
These maritime liens differ wholly from common law liens,
because they are not dependent upon the continued possession by
the lienor of the property subject to the lien ; 1 and they differ
also in some respects from equitable liens.2 The question arises,
How did they originate? On this question different theories
have been advanced ; and probably different theories may be true
in respect of the very different kinds of maritime lien recognized
by modern law. It is clear, at any rate, that we must, in discus-
sing this question, distinguish between the liens which arise from
contract or quasi contract, and those which arise from delict.
We must probably look to an application of the Roman law
of hypothec for the origins of the contractual or quasi contractual
liens.3 The civil law recognized that a person who repaired or
fitted out a ship was a privileged creditor ; 4 and from this it is no
long step to take to say that such a person had a tacit hypothec
on the property fitted out or repaired. Probably also this
development was helped forward by the ordinary form of
Admiralty process, under which the ship was arrested. But of
this I shall speak a little later.5 At any rate, in the sixteenth
century, we find such a lien existing by express agreement in the
case of bottomry,6 and by implication of law in the case of non-
payment of money due for repairs,7 and perhaps in the case of
non-payment of wages ; 8 and in the seventeenth century a similar
lien was recognized in the case of salvage services. 9
It is not probable that the lien which arises from damage (such
as collision) arose from an adaptation of the principle of hypothec.
In some continental laws, it is true, it may have had this origin.10
1 " A maritime lien does not include or require possession. The word is used in
maritime law, not in the strict legal sense in which we understand it in courts of
common law. in which case there could be no lien where there was no possession
actual or constructive ; but to express, as if by analogy, the nature of claims which
neither presuppose nor require possession. This was well understood in the civil law,
by which there might be a pledge with possession and a hypothecation without pos-
session, and by which in certain cases the right travelled with the thing into whosoever
possession it came," The Bold Buccleugh (1850-1851) 7 Moo. P.C. at p. 284 ; vol. vii
5II-5I3.
2 Ibid 513.
3 Gorell Barnes, J., in the Ripon City [1897] P. at p. 239, seems to favour this
view.
4 Dig- 42- 5- 26 — " qui in navem exstruendam vel instruendam credidit vel etiam
emendam, privilegium habet " ; see also ibid 42. 5. 34 ; and 20. 4. 5.
5 Below 272. « Above 262. 7 Above n. 4, 262.
8 In the sixteenth century there appears to be very little evidence of a maritime
lien for wages, see e.g. Tye c. Spryngham (1561) Select Pleas of the Admiralty (S.S.)
ii 122-123— a personal action ; cp. ibid 131-132 in a suit of 1565, against a ship and the
owner, it appears the ship was arrested because the mariners were unable otherwise to
recover their wages from the owner ; in 1597, ibid ii lxxiv (no. 69), there is a decree
against the ship for wages, necessaries, debts, and bottomry.
9 Ibid ii xxxvi-xxxvii. 10 See Abbott, op. cit. (14th ed.) ion n. b.
272 THE LAW MERCHANT
But we do not find this development in English law. Two very
different views have been put forward on this matter. Mr. Justice
Holmes regards it as a surviving form of noxal liability, which
must be attributed to the same set of legal ideas as those in which
the deodand originated.1 But there are several objections to this
view. In the first place, very slight traces of the existence of
such a lien appear in the early records 2 — in fact its existence was
not finally established till 1850-1851.3 But if we are to seek its
origin in these primitive notions as to noxal liability, it is precisely
in the early records that we should expect to find it prominent.
In the second place, it is not very likely that primitive ideas of
this kind would be found in a court, the law and practice of which
were moulded on the civil law. In the third place, it was an idea
which ran counter to the older opinion that the owner was not
liable for the torts of the master and crew.4 Even as late as 1802
it was argued that the "torts of the master cannot be supposed to
hypothecate the ship, nor to produce any lien on it."5 On these
grounds the rival view put forward by Mr. Marsden seems to be
preferable. His view is that this lien arose from an inference
drawn from the Admiralty process of arresting the ship in order
to compel payment.6 But it may be said, if this is so, we might
expect this lien to have arisen very much earlier than it actually
appears. The answer to this objection appears to be as follows : —
In the seventeenth and eighteenth centuries the common law
courts prevented the court of Admiralty from excercising juris-
diction over individuals personally ; but they did not prevent
the court from exercising its jurisdiction over a thing hypothe-
cated or subject to a lien.7 In this period the court claimed
to exercise both these kinds of jurisdiction. As often as not
the arrest of the res was mere process to compel appearance —
alternative to an arrest of the person.8 But when the court was
prohibited from exercising this personal jurisdiction, the actio in
1 The Common Law 25-27.
2 Marsden, Collisions at Sea (6th ed.) 70-71 ; one such case is to be found in Anon.
(1661) 1 Keble 44.
3 The Bold Buccleugh (1850- 185 1) 7 Moo. P.C. 267 ; cp. The Ripon City [1897] p-
at p. 241 ; The Veritas [1901] P. at p. 310.
4 Above 252.
5 Browne, Civil Law (2nd ed.) ii 140 cited by Gorell Barnes, J., in The Veritas
[igoi] P. at p. 310.
6 Collisions at Sea 70-71 — " there are to be found in the books cases which give
some countenance to the doctrine that in Admiralty the ship is the real defendant ; that
the ship is sued because it is she that has done the wrong, and she that pays the
recompence. But it is submitted that this view of the liability of the ship in Admiralty
is not well founded. . . . The process of Admiralty courts against the ship seems
clearly to have originated, not in any such idea as that involved in the'law of deodand,
or in the noxal action of the civil law, but simply as a ready and effectual means of
compelling the wrongdoer to appear and defend the action or to make recompence."
7 The Dictator [1892] P. at pp. 310-311 per Jeune, J. 8 Ibid 311-313.
INSURANCE 273
rem, founded on the arrest of a res, came into greater prominence. !
By an inversion of cause and effect not uncommon in legal history,
it came to be thought that, whenever a res could be arrested in
order that a claim might be asserted against its owner, a lien over
that res existed. This seems to have been the line of reasoning
used by the court in the case of The Bold Buccleugh, which
finally established the existence of this lien.2
At this period, therefore, the modern law as to maritime liens
is still very remote. We see one root of it in the liens which
arise by contract express or implied. But the other root — the
prominence given to the Admiralty jurisdiction in rem by the
prohibition of its personal jurisdiction, and the inference drawn
from that prominence — are as yet in the future.
Ill
Insurance
In modern law insurance would not form merely a section of
a chapter on the Law Merchant. The contract to which we look
to save us harmless not only from the risks incident to life itself,
but also from the risks incident to the various business and social
activities of life in a civilized society, and to the obligations which
a paternal government places upon the most deserving of its sub-
jects, would certainly demand and deserve a chapter to itself. On
the other hand, if we look at insurance only from the point of view
of its origins, we should not give it even a section to itself, but
should class it simply as one of the topics of maritime law. I
shall adopt neither of these methods. Remembering the important
place which this contract was beginning to fill even in this period,
I shall treat it as a separate topic ; and, remembering that we
must look for its origins, and for the earliest and most important
sphere of its application to maritime law, I shall treat it as a topic
which belongs peculiarly to the Law Merchant. In this section
I shall deal, firstly, with the origins of the contract of marine in-
surance ; secondly, with the beginnings of the development of this
form of insurance in English Law ; and, thirdly, with the origins of
other forms of insurance.
1 The Dictator [1892] P. at p. 313 per Jeune, J.
2 " A maritime lien is the foundation of the proceeding in rem . . . and whilst it
must be admitted that where such a lien exists, a proceeding in rem may be had, it
will be found to be equally true that in all cases where a proceeding in rem is the
proper course, then a maritime lien exists," 7 Moo., P.C., at p. 2S4 ; as Gorell
Barnes, J., points out in The Veritas [1901] P. at p. 310 this reasoning is not strictly
true, as there may be rights to proceed in rem though no maritime lien exists.
VOL. VIII.— 18
274 THE LAW MERCHANT
The Origin of the Contract of Marine Insurance
Insurance has been defined l as a contract by which one party
(the insurer) in consideration of a premium, undertakes to in-
demnify another (the insured) against loss. The researches of
M. Bensa 2 have proved that the earliest variety of this contract
was the contract of marine insurance ; that as a separate and in-
dependent contract it dates from the early years of the fourteenth
century ; and that it was evolved, like many other of our modern
mercantile institutions, in the commercial cities of Italy.3 As
M. Lefort has said, this contract was not devised by a legislator. It
was the last term in the evolution of various legal devices invented
to provide against the risks of the sea ; 4 and though there is no
evidence of the existence of an independent contract of insurance
before the beginning of the fourteenth century, we can see in these
various devices the germs from which this contract was evolved.
And, even when in practice it had come to be recognized as a
distinct species of contract, it still continued to be disguised under
the forms of a sale, an exchange, or a maritime loan, in order to
prevent any question whether it was illegal on the ground that it
infringed the laws against usury.0
Among both the Greeks and the Romans we meet with stip-
ulations, accessory to the contract of carriage, which settled the
incidence of the risk of loss of, or damage to, the goods carried.0
For instance, either the carrier 7 or the consignee 8 might guarantee
1 Smith, Mercantile Law (nth ed.) 451.
2 " II contrato di assicurazione nel medio evo ; studi e ricerche (1894)" ; I cite from
the French translation, Histoire du Contrat d'Assurance au Moyen Age, traduit par
Valery, Introduction par Lefort (1897) ; Vance, Insurance Law, Essays in Anglo-
American Legal Hist, iii 104-108, gives some account of M. Bensa's conclusions.
8 Bensa, op. cit. 18-24.
4 '• Le contrat d' assurance maritime n'est pas du au genie d'un legislateur ; c'est
le dernier terme d'une serie devolutions par lesquelles s'est manifestee l'idee de pr£-
voyance dans la lutte contre les fortunes de mer, lutte qui devait erte d'autant plus
vive que de jour en jour augmentait l'importance des vies et des int^rets confi^s aux
caprices des flots," op. cit. Introd. vi.
6 Petrus Santerna, De Assecurationibus Pt. I. §§ 4-6 (Tractatus Universi Juris vi
Pt. I. 348b), cites and refutes various authors who had held insurance contracts void on
this ground ; as he says, § 6, " susceptio periculi simpliciter non facit conventionem
illicitam nisi alias sic illicita " ; and he argues, §§ 10-16, that even a loan of money to
X, who pays a premium to the lender to insure it, is not usury.
6 For some account of these arrangements see Vance, op. cit. 99-103; Lefort, op.
cit. vii ; Ashburner, The Rhodian Sea Law, ccxii-ccxxi, gives the fullest account of the
maritime loans at Greece and Rome, which are the direct ancestors of the insurance
contract.
7 Thus Cicero states, Epist. ad Fam. II. Epist. 17 (cited Vance, op. cit. 99) that
the government should not bear the risks of the transportation of certain public money
from Laodicea — " Laodicete me praedes accepturum arbitror omnis pecuniae public??,
ut et mihi et populo cautum sit sine vecturae periculo."
8 Suetonius states that Claudius assumed the risks of corn transported to Rome,
Life of Claudius V. c. 18 (cited Vance, op. cit. 99)—" Nam et negotiatoribus certa lucra
proposuit, suscepto in se damno si cui quid per tempestates accidisset."
CONTRACT OF MARINE INSURANCE 275
the safe arrival of the goods carried. The maritime loan —
pecunia trajectitia — can be analysed into a contract oi mutuum with
a contract of insurance added to it x ; for the higher interest paid by
the borrower represented a premium, in consideration of which he
was not liable to pay if the ship were lost. Then again we meet,
in the earlier mediaeval period, mutual associations formed to
guard against certain risks of the sea, as for instance against the
risks which arose from the issue of letters of marque, or from the
practice of reprisals ; - and at Genoa there was established an in-
stitution— the Officium Robarie — to give redress against Genoese
citizens who had committed acts of piracy against any trader,
which really gave a sort of state insurance against this particular
risk.3
More immediately connected with the development of the con-
tract of insurance were the stipulations as to risk, introduced into
the ordinary commercial contracts of the thirteenth century. In-
deed, M. Valery thinks that, in the thirteenth century, some of
these contracts, e.g. contracts of sale or loan, were never intended
to be sales or loans, but insurances.4 Thus in the contract of
" commenda" under which A advances money or other property to
B to trade with, there is usually a stipulation as to the party on
whom the risk of accidental loss is to fall.5 In the contract of
mutuum it is probable that, though it evaded the canonical pro-
hibition of usury by calling itself mutuum "gratis et amore," 6 the
lender often paid over the money advanced with a deduction, in
consideration that nothing should be payable if the money were
lost by accident ; and such a deduction is, as M. Bensa has said,
a true premium of insurance. " Similarly, contracts of sale or ex-
change {cambium) were used to disguise transactions intended to
operate as loans at sufficient interest to compensate the lender,
1 Above 261 ; Lefort, op. cit. vii ; cp. Ashburner, op. cit. ccxvi, ccxvii ; Dig.
22. 2. 1. thus defines pecunia trajectitia — " trajectitia ea pecunia est quae trans mare
vehitur . . . Sed videndum an merces ex ea pecunia comparatae in ea causa habentur ?
et interest, utrum etiam ipsa? periculo creditoris navigent : tunc enim trajectitia pecunia
fit."
2 Lefort, op. cit vii n. 4. 3 Ibid 3.
4 Contrats d'Assurance Maritime du XHIe Siecle (1916), in which he analyses
certain documents printed by Blancard, Documents in6dits sur le commerce de
Marseille.
5 Bensa, op. cit. 2 — " les clauses relatives aux risques figurent de tres bonne heure
dans les contrats de commande, car on concoit aisement l'mteret du commandite a
s'affranchir de route responsabilite a raison des cas fortuits dont pouvaient avoir a
soufTrir les marchandises qui lui etaient confiees " ; for this contract see above 195-197.
6 Bensa, op. cit. 3.
7 Ibid 3, 4 — he conjectures that " les integers etaient preleves des le moment de
la formation du contrat sur la somme pretee, exactement comme cela se pratique
encore aujourdhui pour l'escompte des effets de commerce. S'il etait possible de
demontrer la verite de cette conjecture, il faudrait voir dans cette retenue operee
au profit du preteur, le payement d'une prime d'assurance en retour de laquelle il
assumait les risques du pret."
276 THE LAW MERCHANT
both for the use of his money, and for the provision that nothing
was to be payable if the money were accidentally lost.1 The form
of a contract of sale was adapted to this purpose as follows : " In-
stead of B buying goods with money lent by A, A buys the goods
himself and sells them to B, and the price which B agrees to pay
will be (a) payable at a future date ; (b) contingent upon the safe
arrival at the place of payment, either of the original goods or the
goods into which they have been converted ; and (c) sufficient to
meet the sum paid by A with maritime interest Similarly in the
case of exchange, B received coins from A on the terms of paying
different coins (which would be of a different value) at another
time or place ; and according as the coins were at the risk of the
borrower or lender, the value of the coins to be returned would
differ.'2 The difference between the rates of exchange, according
as the money was repayable in any event, or only on the pros-
perous termination of the voyage, represents again a premium of
insurance.3 As M. Bensa has said,4 it is only necessary to split
up such arrangements into their component parts in order to
arrive at the idea of an independent contract of insurance. " It
would only be necessary for a third person to intervene between
a purchaser who intended to purchase goods arrived safely, and a
vendor who wished to throw on the purchaser the risks of the
sea, and to offer to take these risks for the sum which the course
of trade and the rate of exchange had fixed as the difference in
the price, according as one or other party took these risks."5
In 1 347 we have in the archives of Genoa what is perhaps the
oldest contract of insurance ; and the archives of Florence show that,
in the first twenty years of the fourteenth century, it was an
ordinary commercial transaction in the commercial towns of Italy.6
But, as we have seen, the contracts in which the market value of
the element of risk had been thus worked out were chiefly con-
tracts of maritime loan, and all were concerned with the risks
incurred in transport — generally by sea.7 It is not surprising,
1 Bensa, op. cit. 3 n. 2, tells us that in the notarial acts at Genoa we find the ex-
pressions, nomine accometidationis, nomine venditionis et puri cambii, muttio gratis et
amore, used quite indifferently.
2 Ashburner, op. cit. ccxxv ; Bensa, op. cit. 9.
3 Ibid 9, tells us that there are, " innombrables exemples de contrats de change
accompagn£s de Tune des deux clauses, ' rendu sauf a terre,' ou ' aux risques de
mer.' Dans la Pratica della Mercatura de Pegolotti p. 200, on voit que, selon
qu'une lettre de change tir£e de Florence sur l'Angleterre renfermait l'une ou l'autre
de ces clauses, le banquier percevait une commission de 10 sous, ou bien seulement
de 20 petit sous par 100 marcs. La difference de ses deux taux montre que, dans le
premier cas, on payait une veritable prime d'assurance."
4 Bensa, op. cit. 10. 5 Ibid.
6 Ibid 20 et seq. Some have wished to maintain that Portugal was the place
from which the contract came ; Bensa has proved the correctness of the opinion of
Stypmann and Pardessus that it comes from Italy.
7 We do find, however, that the risks of transport by land were insured ; Bensa,
op. cit. 22, says that it appears from the Florentine documents that contracts of insur-
CONTRACT OF MARINE INSURANCE 277
therefore, to find that when the contract of insurance first appears
as an independent contract, it is modelled on the maritime loan,
which developed into the contract of bottomry.1 No very large
modification was needed. In the maritime loan the debtor, who
has borrowed the money, declares that he has received the sum
advanced, and promises to restore an equivalent sum on the safe
arrival of the ship or goods : in the insurance the insurer plays the
part of the debtor, states that he has received the amount for
which the ship or goods are insured, and promises to repay it in
the event of the ship or goods not arriving safely.2 It was only-
natural that the earliest insurers should be shipowners — they could
charge a smaller premium because they could more easily guarantee
a safe arrival ; 3 and it was inevitable that those who drew up the
earliest contracts of insurance should be the same persons as those
who were in the habit of drawing up contracts of loan on bot-
tomry.4 Hence it was from the latter contract that some of the
most important of the technical terms applicable to insurance at
the present day (such, for instance, as "policy" and "premium")
were originally taken.5
But later in the century the form changed. It came to be
modelled on a sale ; 6 and the analogy of a sale was used to ex-
plain its incidents. The contract of sale was adapted to the pur-
poses of an insurance by regarding the property insured as sold to
the insurer, subject to a resolutive condition in the event of its
safe arrival. It was for this reason that the goods were at the
insurer's risk during the whole of the voyage, and that he could
sue for their recovery during this period." Two important
ance were made " non seulement en vue des risques des marchandises sur mer, mais
aussi en vue des risques du transport par terre " ; further it seems, op. cit 46, that the
premium for these risks was about half that for maritime risks ; but even in the middle
of the seventeenth century this form of insurance was comparatively rare ; Marquardus,
De Jure Mercatorum et Commerciorum II. 13. 11 says, " ilia est super rebus quae
terra, haec qua; mari transvehuntur ; rara ilia frequens haec."
1 Ibid 28 ; for this contract see above 261-263.
2 " II y avait, toutefois, une difference : tandis que dans la pret a la grosse le
debiteur, c'est a r!ire l'emprunteur, declarait avoir recu la somme qui lui etait vrai-
ment avancee et s'engageait a restituer une somme equivalente en cas d'arrivee a bon
port ; dans l'assurance, au contraire, le debiteur, c'est a dire l'assureur, feignait d'avoir
recu la somme assuree, s'engageant a la payer a l'assur£ dans le delai convenu, sauf
dans le cas d'arrivee a bon port du navire ou des marchandises," Bensa, op. cit. 28.
3 Ibid 24. 4 Lefort, op. cit. xi.
5 Ibid xi, xii ; cp. ibid xii n. 2 citing Straccha, De Assecuratione Gl. xv 2 who
says, " trajectitia pecunia instar cujus assecuratio inventa est."
6 Bensa, op. cit. 28 — at Genoa, " a partir de 1368, dans tons les actes genois d'assur-
ance, l'assure s'oblige a payer la somme assuree nomine venditionis et puri cambii."
7 Two passages from the Consilia of the Genoese lawyer Bosco, cited Bensa, op.
cit. 29, 30, make this quite clear — " Si contingeretres vel merces, super quibus facta
est assecuratio, petdi, assecurator solvit pretium et valorem pro quo assecuravit, et
recuperat merces quae sunt suo periculo a se emptae, si recuperari possunt " ; and
" Si contingat res illas super quibus est facta securitas capi, dictas res tanquam etTectaa
assecuratorum pro parte qua assecuraverunt super ipsis, per eos vindicantur et recuper-
278 THE LAW MERCHANT
principles of insurance law flowed from this conception. In the
first place, the insured must be the owner, or at least have some in-
terest in the property insured.1 A man cannot transfer to another
what he does not own. Therefore from the first the contract was
a true contract of indemnity, and not a mere wager on the safe
arrival of ship or merchandise.2 In the second place, if the ship
or goods did not arrive safely, and the resolutive condition failed
to operate, the insurers were entitled to so much of the property
insured as could be recovered.3
During the fourteenth century the business of insurance grew
and flourished. In the first half of the fourteenth century Floren-
tine and Genoese merchants treated the cost of insurance as a
regular part of the cost of transport.4 Genoa seems to have been
the centre of the insurance business. Societies of insurance
brokers, employed solely in this business, were known there 5 ; and
that their business flourished can be seen from the fact that, on a
single day in 1 393, a Genoese notary made more than eighty in-
surance contracts.6 The growing popularity of the contract natur-
ally caused it to become still further separated from the contract
of loan on bottomry, or the contract of sale. Shipowners, as such,
ceased to act as insurers ; and the magnitude of the sums assured
led to the practice of several persons joining in the contract, by
writing their names under the policy, with the proportion of the
sum assured for which they were prepared to answer.7 Moreover,
the form of the contract tended to grow less elaborate. Its legality
being now fully recognized, it ceased to be disguised under the
form of a loan or a sale. It came to be regarded as a distinct
species of the large genus innominate contract, reducible to the
formula "do ut facias — I the insured give a premium that you the
insurer may undertaKe a risk."8
antur, et de ipsis tanquam propriis disponunt, quasi tanquam res venditae ex die con-
tracts assecurationis toto viagio fuerint ipsorum emptorum et assecuratorum periculo."
1 Bensa, op. c t. 34. - Ibid 34. 3 Above 277 n. 7.
4 Bensa, op. cit. 21 — citing as authority the books of Francesco del Bene and
Company, of Florence.
5 Ibid 48.
6 Ibid 47 ; Bosco in no. 369 of his Consilia (there cited) says, " Marcus propter
lucrari fecit plures assecurationes sicut faciunt plurimi mercatores de Janua quorum
aliqui de nullo alio vivunt quam de hujusmodi quaestu, qui quandoque est utilissimus,
quandoque damnosus, secundum discretiones assecurantium et secundum cursum tem-
porum et fortunae blandimenta vel adversiones."
7 Bensa, op. cit. 24.
8 Straccha, De Assecuratione, Introd. 47 — " Et illud quasritur, rem tuam rnari vel
terra exportandam salvam fore promisi periculum suscipiens, et periculi gratia pretium,
an nominatus seu magis innominatus contractus censeatur ? Et innominatum con-
tractum esse censit Baldwinius . . . suscipio enim periculum ut des . . . et sic facio
ut des " ; equally also, if looked at from the point of view of the insurer, it is a con-
tract of " Facio ut des," for these innominate contracts, " judicantur diversi modo, ex
parte dantis est do ut facias, ex parte vero facientis est facio ut des, non inspecto ordine
contrahendi, sicut in emptione et venditione, locatione, et similibus."
CONTRACT OF MARINE INSURANCE 279
In early days there was no rule as to the form in which the
contract must be drawn up. There is reason indeed to think that,
in the earlier part of the fourteenth century, contracts of insurance
were sometimes made verbally.1 But the procedural advantages
obtained by getting the contract drawn up in writing by a notary
or a sworn broker, led the parties in almost all cases to adopt this
method of contracting.2 In the first instance these contracts were
sometimes very informally drawn. Mere notes of the necessary
clauses to be inserted in the agreement were taken.3 Probably
the instrument was embodied in complete form only if it was
necessary to take legal proceedings upon it.4 But it is clear that
the practice of employing sworn brokers will lead to the evolution
of a stereotyped form. The form which the brokers of Genoa,
Florence, and Pisa evolved in this century has in substance
shaped the policies of our modern law.5 It was substantially the
form on which Straccha 6 commented in the sixteenth century ;
and it was the form which many governments in the same cen-
tury, partly for fiscal reasons, and partly on account of the
convenience of having one definite form which all traders under-
stood, made obligatory for all insurance contracts.7
This growth of the practice of insurance caused, in the first
place, the ascertainment and elaboration of the rules of law
governing the contract ; and, in the second place, its regulation by
statutes which were passed, either in the interests of the state, or
in the interests of the parties to the contract Since these rules
and statutes are the basis of the insurance law observed in Europe
and in England at the present day, we must glance briefly at
them.
(i) We have seen that, from the first, the contract of insur-
ance was a contract of indemnity, and that therefore the person
insured must have some interest in the subject matter of the
insurance. This requirement sometimes gave insurers the oppor-
tunity of evading their obligations, and led to the insertion of
clauses which bound the insurers to pay whether or not the
1 Bensa, op. cit. 34 — " Les documents que nous possedons admettent, en effet, la
possibility de conclure le contrat cum scriptura vel sine."
2 Ibid 30. 3 See the specimen cited ibid 31, 32. 4 Ibid 31.
5 " Les polices florentines et pisanes etaient assez conformes, dans leur ensemble,
aux polices modernes. . . . Aussi convient il peut-etre de conjecturer qu'a Genes
egalement les polices d'assurance contenaient ces clauses detaillees dont les polices
florentines et pisanes nous revelent l'usage, et qu'elles differaient par la des instru-
ments dresses par les notaires," ibid 33.
6 De Assecuratfone ; the form is at the end of the Introd., and the rest of the
treatise consists of 40 Glosses on the form. The form is dated 1567 ; cp. Bensa,
op. cit. 33.
7 See Magens, Insurances ii 4-7, for two forms of policy prescribed at Florence by
the ordinance of 1523.
280 THE LAW MERCHANT
insured had any interest.1 But the prevalence of these clauses
soon gave rise to the serious evil of facilitating, by means of
insurance, mere wagering contracts on the safety of ships or other
property insured.2 The merchandise assured was, in the earlier
contracts, described with some minuteness, which gave place, in
later contracts, to a more general description.3 The ship on
which the merchandise was loaded , was described ; and the names
of the captain, the consignor, and owner were inserted.4 It was
very rarely that the ship was not designated, and the insured
allowed to load in any ship he pleased.5 At first the insurance
was always for the voyage. Time policies (which never exceeded
a year) were, however, introduced in the course of the fourteenth
century.0 From the earliest time the route was prescribed ; and
any deviation, unless allowed by the policy, avoided the contract.7
The risks against which the insurance was made were generally
carefully specified ; but generally they excluded risks arising from
the barratry of the master ; and sometimes certain other risks
also.8 Sometimes the policy specified a time within which, in
default of news, the ship was to be presumed to be lost.9 In case
of capture and rescue it was a disputed point as to whether the
insurers were liable to pay.10 The better opinion seems to have
been that they were liable ; and policies sometimes provided that
they should not be liable, if they redeemed the goods and de-
livered them safely at their destination.11 The one duty of the
insured was to pay the premium ; and this payment must always
be made in advance.12 Sometimes provision was made for the
1 Bensa, op. cit. 35, citing Bosco, Consilia 392 p. 611 — «' nisi instrumenta
assecurationum essent ita lati et ita ampli tenoris, fatui essent facientes se assecurari
quia assecuratores propter non solvere mille cavillationes excogitarent."
2 Ibid 36.
3 Ibid 37 — eventually, " ou on vient meme a ne plus specifier que les objets
precieux et certaines categories de marchandises ; pour toutes les autres, on em-
ployait la formule generate super rebus, et mercibus."
4 Ibid 38. 5 Ibid 38, 39. 6 Ibid 39.
7 Ibid 39-41 — the question what amounted to a deviation seems to have given rise
to a good many questions.
8 Ibid 42-44 ; see especially the clause taken from a Florentine policy of 1397
cited at p. 43 — " Les risques que les assureurs courent . . . sont ceux de Dieu, de la
mer, des gens, du feu, du jet a la mer, de la retention par le fait des Seigneurs ou des
Communes ou de toute autre personne, ou de repr^sailles, ou d'arret, et de tout autre
cas, peril, fortune, empechement ou sinistre qui, de quelque facon que ce soit, pourrait
se produire, ou se serait produit, et quels que puissent etre les cas et dans quelques
conditions qu'ils se r^alisent, excepts ce qui pourrait concemer le lest et la douane."
9 Ibid 44.
10 Ibid 44 ; for similar doubts in English law see below 291.
11 Ibid 44.
12 Ibid 45 — as M. Bensa says, this custom as to payment in advance may have
originated when the contract took the form of a fictitious sale ; under this form the
insurer declared that he had received the sum for which the property was insured ;
and, when the contract took this form, " l'assureur n'aurait pas eu d'action pour en
poursuivre le payement " ; later this custom passed jnto enacted law,
CONTRACT OF MARINE INSURANCE 281
cancellation of the policy and the return of the premium, if e.g.,
owing to the abandonment of the voyage, the risk was never
incurred.1
(2) The earliest legislation2 on the subject of insurances
comes from Genoa and Florence. The earliest enactment is a
Genoese statute, which comes from the last quarter of the four-
teenth century.3 It was directed to the prohibition of insurances
on foreign ships — a prohibition which was never very effectual,
and was shortly afterwards repealed,4 and to laying down certain
other conditions as to the validity of the contract. For instance,
insurances made after the loss was known were declared to be
void ; and the loss was deemed to be known if any one person
had heard the news.5 Other statutes were passed to impose a tax
upon insurances,5 to settle the form of the contract,7 and to
provide a short and effective procedure for the enforcement of
claims upon insurance policies.3 Towards the end of the fifteenth
century, the greater freedom allowed to the parties to make what
terms they pleased, led to an increase in the practice of making
insurance contracts solely for the purpose of wagering ; and the
legislature at Genoa made attempts to prohibit them, which were
not very successful.9 But none of these statutes covered very
much ground. It is to the statutes of Barcelona that we must
look for the first comprehensive code of insurance law.10 These
statutes, as finally codified in 1484, have had a large influence
upon the insurance law of the rest of Europe, partly because, being
printed and circulated with the Consolato del Mare, they shared
its fame and influence ; u and partly because, being compiled at a
later period than the earliest Italian legislation, the law was more
settled, and therefore better fitted for codification.12 They were
a model for the various codes of insurance law which the chief
1 Bensa, op. cit. 46-47.
3 On this legislation generally see ibid chaps, v-vii.
3 Ibid 52 — we have not got its text, but we can gather its substance from the
commentary contained in the Consilia of Bosco ; it must be before 1383. as an addition
to it was made in that year, ibid.
4 Ibid 54 — repealed in 1408 for fiscal reasons ; for similar laws elsewhere and
their modification see ibid 53, 81-85.
3 Ibid 52, 53 — the loss is known if it has come to the knowledge of a single
person.
* Genoa (1401) ibid 53.
7 Florence (1523) Magens, Insurances ii 1 § 2.
8 Bensa, op. cit. 72-S0; see e.g. the Venetian law of 1468, cited ibid 80.
9 Ibid 84-88, 104 ; M. Bensa seems to dispose successfully of the view of Prof.
Vivante that the growth and extension of insurance contracts was due to the use made
of them to make wagers ; as M. Bensa says, " assurement, les paris ont contribue a
augmenter le nombre de ces contrats ; mais ce n'est qu'apres qu'ils etaient deja
devenus frequents, grace a la realite du besoin auquel ils donnaient satisfaction."
10 For the text of the statutes see Pardessus, Lois Maritimes v 493-554, 507-5 13 ;
they are summarized by Bensa, op. cit. chap. vi.
'* Ibid 50 ; for this code see vol. v 70-71. 12 Bensa, op. cit, 50, 51, 57, 5S.
282 THE LAW MERCHANT
trading countries of Europe passed in the sixteenth and seven-
teenth centuries.1
This legislation is comprised in five statutes which were
passed at Barcelona from 143 5- 1484. They deal with all aspects
of insurance law, and settle the leading principles which underlie
it. The statute of 1435 2 is the basis of the later law. Among
other topics, it deals with the capacity of the parties,3 insurances
on foreign ships,4 the proportion which the value of the property
insured must bear to the amount of the insurance 5 the rules as to
presumption of loss,'5 the regulation of insurance brokers,7 the
payment of the premium,8 the form of the contract,9 the procedure
to enforce it 10 Some small modifications were made in the follow-
ing year ; u and in 1 4 5 8 12 considerable modifications were made in
the direction of allowing greater freedom to insurers and insured.13
Additional rules were made as to the payment of the premium,14
as to proof of the loss,15 and as to the procedure to enforce the
contract ; 1(i and there were some new rules as to the cancellation
of the policy when the risk was not incurred.17 In 1461 18 evasions
of the rules as to insurances on foreign ships, by making use of
the machinery of a sale or a loan, were prohibited. In 148419 all
these rules were summed up in the comprehensive code which, as
I have said, has had a very large influence on the development of
the law throughout Europe.20 The chief change made was the
abolition of all restrictions on the insurance of foreign ships.21
But this freedom obviously tended to encourage mere wagering
policies. In order to discourage them, insurances on ships or
cargoes sailing beyond the Straits of Gibraltar, were prohibited,
unless they were destined for Barcelona;22 and rules were made
to suppress the practice of insuring non-existent cargoes.23 Further
provisions were made to invalidate contracts made after the loss
1 For the text of some of these later laws see Magens, op. cit. ii 23-30 — Antwerp
1563 ; ibid 30-49 — Spanish ordinances of 1556, 1588, and 1618.
2 Pardessus, op. cit. 493-502. 3 § 3. 4 § 1. 5 §§ 2, 4.
6 §15- 7§§8, 17-20. 8§n. »§g. 10§§ 12-14.
11 Pardessus, op. cit. 502-504. la Ibid 507-521. 13 § 1.
14 § 12. « § 14. 16 §§ 8, 9, 18-22. 17 §§ 14. 15.
18 Pardessus, op. cit. 521-523. 19 Ibid 523-543.
20 " Les veritables Ordinations sobre les seguretats, qui, traduites en plusieurs
langues, ont exerce une si grande influence sur la jurisprudence maritime de la
Mediterrande, et aux quelles Ton a coutume de se reTerer quand on parle de la ported
de lois de Barcelone, ne sont pas autre chose que l'ordonnance de 1484, ou la matiere
re^ut sa r£glementation definitive," Bensa, op. cit. 67.
21 §I- • ,x ■
22 § 2 ; as Bensa says, op. cit. 68 — " les assurances in quovis n etaient pas
admises par le droit maritime Catalan. La crainte des simulations et des paris, qui
avait inspire" cette restriction, 6tait telle qu'elle eut pour r£sultat de faire deTendre
absolument les assurances portant, soit sur les marchandises . . . voyageant au dela
du d^troit de Gibraltar . . . soit sur les batiments naviguant dans les memes
parages."
a3§9-
CONTRACT OF MARINE INSURANCE 283
had occurred,1 and as to the presumption of loss from the non-
receipt of news.
These statutes give us, as M. Bensa has pointed out, a very
complete picture of the insurance law of the fifteenth century.
They are, as I have said, especially important in the early history
of this contract in England and in other European countries ; for
it was the Italian and Spanish insurance law of this century which
was already making its influence felt in the trading cities of the
Netherlands and was soon to make its appearance in England.2
To its adventures in England we must now turn.
The Introduction and Development of the Contract of Marine
Insurance in England
As we might expect, the earliest mention of a policy of insur-
ance in England is to be found among the records of the court of
Admiralty. Insurance, as was pointed out in a sixteenth-century
petition to the Council, " is not grounded upon the lawes of the
realme, but [is] rather a civill and maritime cause, to be determined
and discided by civilians, or els in the highe courte of the
Admiraltye." 3 This earliest policy is to be found in the record
of the case of Broke c. Maynard* (1547), in which an action was
brought by the insured on a policy written in Italian, and
subscribed by two underwriters. The action was defended on the
ground that the insurers had already paid part of the sum, and
that they had received no part of goods which had been salved.
It was further alleged that there had been a deviation. The case
shows that at this date the practice of insurance was well known
in England ; and that this was the fact was specifically stated in
the case of Ridolphye c. Nunez 5 (1562), in which the custom in
the city of London of making insurances through agents is thus
set out in the pleadings : "The use and custome of makynge bylls
of assuraunce in the place commonly called Lumbard Strete of
London, and likewyse in the Burse of Antwerpe, is and tyme out
2 Genoese underwriters were established at Bruges in 1370, Bensa, op. cit., 101 ;
"L'Espagne d'abord et pour peu de temps d'ailleurs, puis la Flandre, l'Angleterre et
la France, en recueillant les traditions et les coutumes de l'ltalie, lui succ^derent
dans la mission de les developer conformement aux transformations amenees par la
marche du temps, et aux formes nouvelles du commerce terrestre et maritime,"
ibid 105.
3 Select Pleas of the Admiralty (S.S.) ii Ixxvi.
4 Ibid 47; possibly the case of Emerson c. De Sallanova (1545), ibid lxvi, which
turned upon a claim on an indemnity given against the withdrawal of a safe conduct
by the king of France, may be an earlier case of insurance ; cp. Vance, Essays
A.A.L.H. iii no.
'Select Pleas of the Admiralty (S.S.) ii 52, 53; in 1573-1574 insurance is referred
to as an ancient custom among merchants, Dasent, viii 195-196.
284 THE LAW MERCHANT
of mynde hath byn emongst merchants usinge and frequentinge
the sayde several 1 places, and assuraunces used and observed, that
the partie, in whose name the bill of assuraunce is made, ys not
bounde to specifie in the same whether the goods assured are for
his owne or for any other man's accompte. . . . And yf any
mys fortune chauncethe to the same gooddes in such sort assuryd,
the sayde partie, in whose name the byll of assuraunce is made,
maye demande and oughte to recover them againste the assurers
by vertue of the sayd custome as his owne propre gooddes,
although they perteyne to some other. ... And further he
doothe alledge that commonly merchants, by all the tyme above
declared, have and doo cause ther gooddes to be assured from
porte to porte by ther factors and other ther frends havinge noo
interest or propretie in the gooddes assured, and yet thassuraunce
goodd, and thassurers bounde tanswere the losse of such gooddes
yf any happen."
The Italian origin of insurance law is clear on the face of the
policies which we find in the records of the court of Admiralty.1
The earliest policy which appears there is, as we have seen, written
in Italian ; 2 and in form they are very similar to the Italian
policies of this period. A comparison between some of them, and
the form of policy prescribed by the Florentine legislation of I $23*
will make this quite clear. They are not of course precisely
similar. They are not drawn up in one stereotyped form, and
they therefore vary both in length and in contents. Some are
quite short, while others contain larger and more elaborate clauses.
Two policies contain a "sue and labour" clause;4 and a Dutch
policy of 1638 contains a renunciation of the Antwerp Insurance
Orders, and an agreement to submit to arbitration in the case of
any disagreement.5 But the clause which nearly all the English
policies of this period contain — which in a modified form our
modern policies of marine insurance still retain — to the effect that
this policy shall be of as much force and effect as the surest writ-
ing or policy heretofore made in Lombard Street,6 probably had
the result of producing a uniformity in the legal effect of all these
1 Select Pleas of the Admiralty (S.S.) ii 45-59.
2 Ibid 47. 3 Magens, op. cit. ii 4-7.
4 Select Pleas of the Admiralty (S.S.) ii 56, 58, 59 ; below 290.
5 Select Pleas of the Admiralty (S.S.) ii 59.
6 In the policy of 1547, ibid 48, the clause runs as follows: "As for the aventure
that the assurers shall stande at, it is to be understoode that this preasente writinge
hathe as muche forse as the beste made or dieted byll of surance which is used to be
made in this Lombarde Streete of London " ; in the form of marine insurance set out
in the first schedule to the Marine Insurance Act 1906, 6 Edward VII. c. 41, it runs
as follows : " And it is agreed by us, the insurers, that this writing or policy of assur-
ance shall be of as much force and effect as the surest writing or policy of assurance
heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in
London,"
CONTRACT OF xMARINE INSURANCE 285
policies. It showed that the parties intended to incorporate into
their contracts the rules of the law merchant generally understood
to be applicable to them ; 1 and it therefore enabled the parties to
appeal to, and the court to apply, these rules in any litigation
which might arise.
The growth of England's foreign trade in the latter part of
the sixteenth century increased the importance of insurance law ;
and, from 1574 onwards, the Council began to consider the
expediency of putting this new business under some form of
regulation, and of providing some means by which the rights of
the parties under insurance contracts could be quickly and easily
enforced. That the Council might be informed as to the actual
rules observed, an order was sent in 1574 to the Lord Mayor ot
London to collect and certify the orders made and the rules
applied by the merchants in matters of insurance.2 But nothing
was done that year, although the order was repeated.3 In 1575
the Lord Mayor was further directed to fix the prices for making
and registering policies of insurance.4 But apparently nothing
was done, as later in the same year he was again directed to
summon experienced merchants and civilians, and, with their help,
to collect this information and reduce it to writing ; 5 and it was
necessary to repeat the order in 1576.6
In the meantime the Council had resolved to act upon its own
knowledge, and to adopt two measures, which may well have been
suggested by the practice of other commercial nations. In the
first place, they proposed to regulate the business of insurance by
setting up an office for the making and registering of insurances.
In the second place, they proposed to create a special commission,
consisting of merchants and civilians, for the speedy trial of these
cases, in order that the merchants might, " the better followe theire
trades without incomberaunce or molestinge the one the other by
suites at lawe, bothe to the hinderance of traffick and of her
Majesty's customes."7
1 Thus the Council tell the Lord Mayor, whom they had directed to write down
the rules and orders relating to insurance, to follow the customs of other countries
as to the fees payable.
2 Dasent viii 321. ' Ibid 337.
4 Ibid 397. s Ibid ix 43 (1575).
6 Ibid 163 — " Whereas letters have been often written to him and his predeces-
sours to consider for some order to be made for matters of assuraunce, the wante
whereof doth dailie brede grete trebles, he is now required to sende unto their
Lordships without delaie that hath been doune in that behalf, and also the perfect note
of the rates that hath ben set downe for the registering of assuraunces, and therein to
use the more expedicion for that, upon the certaine knowledge thereof, their Lordships
are to precede therein to the furtheraunce of her Majesties service."
7 That this was their object was stated in a letter written by the Council to the
chief justice of the King's Bench and the judge of the Admiralty in 1601, Dasent xxxi
253 ; as it was said in a petition to the Council in 1570, " the matter . . . constethe
and standeth muche uppon the orders and usages of merchauntes by whom rather than
28(5 THE LAW MERCHANT
(i) The regulation of the business of insurance took the form,
usually followed in the sixteenth century both in England and
abroad, of the grant to an individual of a monopoly right to make
and register insurances, and to charge fees for his services.1 It
was a plan which provided regulation, and, not only paid its own
way, but also might be made to provide some revenue to the
government. About the year i 574 a grant was made to Richard
Candler, giving to him and his deputies the sole right of making
and registering " insurances and policies and other instruments
belonging to merchants."" It is not surprising to find that both
the notaries 3 and the brokers 4 protested ; and very probably it
was the delay caused by these objectors, which caused the Lord
Mayor to be so slow in returning to the Council the information
about insurances, which it desired him to collect.5 Notwithstand-
ing this remonstrance, the grant took effect, and it is probable that
it was the origin of the "Office of Assurances" mentioned in the
statute of i6oi.c But, in order to meet the objectors, the Council,
as we have seen,7 directed the Lord Mayor of London to nominate
commissioners to consider the question of fees and regulations.
These commissioners proceeded to settle the fees which could be
taken in the Office, and to make regulations which permitted
others, besides Candler and his deputies, to draw up policies.8 To
this Candler not unnaturally made objections, which are contained
in a paper which he sent to Walsingham in 1576.9 It is probable
by course of law yt may be forwarded and determyned," Select Pleas of the Admiralty
(S.S.) ii lxxvi.
1 Vol. iv 346-347 ; see the regulations for the registration of insurances contained
in the Guidon de la Mer, cited Martin, History of Lloyd's 42-44 ; and it would seem
that there was a similar office at Antwerp, ibid 39.
2 We have an account of this monopoly in the protests against it made by the
notaries and brokers, which John Strype printed in his edition of Stow's Survey
(published 1720) ii 142; Martin, History of Lloyd's 36-41, has also given the material
portions ; the whole of it is printed by Tawney and Power, Tudor Economic Docu-
ments ii 246-251.
3 The notaries (sixteen in number) stated that they "lived upon the making of
policies, intimations, renunciations and other writings granted unto the said Candler,"
and that this grant would mean their utter overthrow; cp. Scott, Joint Stock
Companies iii 364; for the notaries see vol. v 78-79, 114-115.
4 The brokers (thirty in number) complained that the grant was a gross infringe-
ment of the liberty of the subject, and prophesied that it would open the door to many
inconveniences to the merchants — " If all this serving merchants occasions should be
committed to one particular person, it were not possible but great discommodities
and losses would happen to many for lack of dispatch . . . that it would be a great
bondage to merchants to be tied to one particular person, who might either for favour
or reward dispatch one man, and for displeasure or ill-will delay another."
5 Above 285.
6 43 Elizabeth c. 12 ; Malynes, Lex Mercatoria 105, 106.
7 Above 285. 8 Martin, History of Lloyd's, 39-41.
9 " Yf evvery man maye make pollicies that will, the case will be souche that the
saide Richard Candeler shal not have the regestringe of the tenthe pollecy of
assewraunce that shal be made, for that he shall not knowe on whom to complayne
for not registring their assewraunces. And so his said office shall not be able to
cowntervaille his charges," ibid 40.
CONTRACT OF MARINE INSURANCE 287
that the rates found by the commissioners were accepted as fair
by the government. On the other hand, the government insisted
upon all insurances being registered at the Office, and perhaps
upon the sole right of making them, conferred upon Candler or
his deputies.1 As it was said in a marginal note on Candler's
petition, it was on these provisions in the patent that the govern-
ment relied for the redress of " deceipt in Assewraunces " ; - and,
though the notaries and brokers remained unsatisfied, there is no
evidence that the merchants seriously objected.3 After all, similar
regulations were in force in continental countries.
(2) For the trial of insurance cases the Council appointed a
body of commissioners. We have not got the list of commissioners ;
but it would appear that they consisted of merchants and civilians,4
and that the judge of the court of Admiralty was the chief com-
missioner.5 Whether or no they included any common lawyers I
cannot say. But, in at least one important case, merchants, civil-
ians, and common lawyers were included in the commission.''
The object which the Council had in view was, as they explained
at a later date, to provide that " soche dyfferences as might fall
out betwixt merchantes touchinge this matter should be handled
and decyded amonge themselves by soche as have best knowledge
and experience in those affaires." " It is thus clear that, here
again, the Council intended to follow foreign precedents, and
establish a mercantile court consisting of both merchants and
lawyers, which should administer mercantile custom without those
formalities of procedure and pleading which delayed the hearing
of cases in the regular courts of law.8
But, though tribunals of this kind were found to be perfectly
1 Dasent ix 177 (1576) ; Martin, op. tit 40.
*"So longe as every man maye make his owen pollecy the decipt in
Assewraunces will nevir be redressed, which is the greatest cause of the erection of
the saide Office," ibid 40, 41. It was probably owing to the trouble over Candler's
Patent that in 1576 one Henriques Roderiguez petitioned for a monopoly of the
brokerage of insurances, promising to pay hah" the penalties imposed on those who
infringed this monopoly to the Queen, Select Pleas of the Admiralty (S.S.) ii xvi.
3 It would appear from the letter of the Council in 1601, Dasent xxxi 252-253, that
the merchants complained, not of the existence of the regulations, but of their
ineffectiveness.
* Ibid x 232 (1578); xi 360, 393 (1579-1580); xii 25, 69, 199 (1580); see ibid
199, 200 for a case sent to them by the Council and recommended by the French
ambassador — apparently the insurers had refused to pay.
* Ibid xiii 359-360 (1581-1582) ; on one occasion, xiv 214 (1586), four civilians were
appointed arbitrators, and on another occasion two civilians and the judge of the
Admiralty, xx 202 (1590-1591).
* Ibid ix 168, 230 (i576)—the persons named were the Master of the Rolls, Jus-
tice Southcote, Sir Thomas Gressham, Dr. Hamond, Dr. Forde, Edward Osbume,
Alderman Barne, Thomas Alderzey, Benedict Spinola, and Hectour Nonnez ; and
later the two Chief Justices were added ; it was stated that the case was, " so strainge
as requireth the advice and consultation of such as be experienced in those kinde of
dealinges."
7 Ibid xxxi 253. s See vol. v 150.
288 THE LAW MERCHANT
satisfactory on the Continent, this tribunal set' up by the Council
was not a success. In 1601 the merchants "that use to assure
goodes," stated, in a petition to the Council, that the orders made
by the merchants and confirmed by the Council were not obeyed ;
and that some refused "to submytte and conforme them selves to
the order of Commyssioners appointed to heare those causes,
beinge chosen of skillfull merchantes and sworne by the order of
the Lord Maior to deale indyfferently and uprightlie, to the great
trouble of honest traders and the incouradgement of soch mer-
chantes as have no meanynge to performe their bergaines. " :
The reason for the failure of the insurance commissioners is
probably to be found in the fact that both the court of Admiralty
and the courts of common law continued to exercise a competing
jurisdiction ; and that both were eager to retain and to enlarge it
In 1547 the Admiralty proceeded against a plaintiff for contempt
because he had sued in the city of London court;2 and in 1556
it proceeded against another plaintiff because he had sued before
a commission appointed by the Chancellor.3 In the common law
courts there is, it is true, only one reported case during this cen-
tury of an action upon a policy of insurance.4 But the action of
assumpsit, as developed in the latter part of this century, was quite
capable of affording a remedy upon these policies ; and Malynes 5
tells us that many such actions were brought. It is clear that
these competing jurisdictions afforded many opportunities to the
dishonest and the litigious. Such persons could put pressure on
their opponents by a refusal to submit to the summary jurisdiction
of the commissioners, which would compel them to have recourse
to a formal trial before a law court.0 And, even if the case were
brought before the commissioners, it would seem that they some-
times declined to obey their orders, perhaps under the plea that
legal proceedings were pending in the Admiralty or at common
law. The fact that the Council had not given, and indeed could
not give, exclusive jurisdiction to these commissioners was fatal to
their efficiency.
1 Dasent xxxi 252, 253.
2 Broke c. Maynard, Select Pleas of the Admiralty (S.S.) ii 47.
3 Ibid lxvii.
4 A case of 1589 cited in Dowdale's case (1606) 6 Co. Rep. at p. 47 b.
5 Op. cit. 106 — he explains that he attended before the committees engaged on
the Act of 1601, and that it passed with some difficulty, "because there were many
suits in law by action of Assumpsit before that time, upon matters determined by the
Commissioners for Assurances, who for want of power and authority could not compel
contentious persons to perform their ordinances."
°" Of late years divers persons have withdrawen themselves from that arbitrarie
course (i.e. settlement by arbitration), and have soughte to drawe the parties assured
to seeke their moneys of everie severall Assurer, by Suites commenced in her
Majesties Courtes, to their greate charges and delayes," 43 Elizabeth c. 12
Preamble.
CONTRACT OF MARINE INSURANCE 289
In consequence of the petition of the merchants to the Council
in 1 60 1,1 the chief justice of the King's Bench and the judge of
the Admiralty were directed to hold an enquiry ; 2 and the result
of this enquiry was a resolution to strengthen the jurisdiction
of the commissioners, by giving it statutory authority. The
statute of 1 60 1, which was passed with some difficulty through
Parliament,3 evidently intended to set up for London a com-
mercial court of the ordinary continental type, for the hearing of
actions upon policies of marine insurance. The preamble sets out
the antiquity, the prevalence, and the advantages of the custom of
marine insurance, and recites the measures taken to decide the
controversies arising by the arbitration of commissioners. The
statute then enacts that the Lord Chancellor shall be empowered
to appoint a standing commission to hear all cases arising upon
all policies of insurance entered in the London Office of Insurances.
This commission was to consist of the judge of the Admiralty, the
recorder of London, two doctors of the civil law, two common
lawyers, and eight "grave and discrete merchants." These com-
missioners, or any five of them, were to adjudicate upon insurance
cases " in a briefe and summarie course, as to theire discretion
shall seeme meete withoute formalities of pleadinges or proceed-
ings."4 They were given power to examine on oath, or to
commit to prison those who disobeyed their final decrees.5 An
appeal from their decision could be brought to the court of
Chancery ; but execution was not to be suspended pending an
appeal.6 The commissioners were to be sworn to act honestly,
and no commissioner interested in any case could take any part
in the decision of that case.7
Thus a commercial tribunal of the continental type8 was for
the first time established in England by statutory authority. But
it suffered from two grave defects. Firstly, its jurisdiction was
confined to policies registered in the London Office of Insurances,
so that it did not extend to insurances made in other seaport
towns. Secondly, it did not exclude specifically the jurisdiction
of the courts of common law and the court of Admiralty. It is
possible that, if the king and Council had continued to exercise
the control over the courts which they exercised in the Tudor
period, these defects might have been remedied. But the consti-
tutional controversies of the seventeenth century were fatal to
institutions which depended upon the prerogative. The Office of
1 Above 288. 3 Dasent xxxi 252, 253.
3 Malynes, op. cit. 106. * § 1. 5 § 2.
8 § 3 — the sentence must be satisfied or the money deposited with the Commis-
sioners.
7 §4. "Vol. v 150.
VOL. VIII.— 19
290 THE LAW MERCHANT
Insurances seems to have disappeared ; and the new court was
left to wage an unequal contest with the victorious common law.
There was indeed an attempt in 1662 to remedy certain minor
defects in the Act.1 For instance, the necessary quorum was
reduced from five to three ; 2 and power was given to punish
parties or witnesses who refused to appear,3 to make orders
against the person or goods of a defendant,4 and to issue com-
missioners to examine witnesses beyond the sea.5 But these
amendments were wholly ineffectual in the face of the determined
opposition of the common lawyers. They held that a judgment
of the court was no bar to subsequent proceedings at law ; 6 that
it could hear disputes only as to policies of marine insurance ; 7
and that, even in these cases, it could act only when it was the
insured who was plaintiff.8
The natural result was that, during the sixteenth and seven-
teenth centuries, the law of insurance was in a very backward
state. Neither in the court of Admiralty in the earlier part of
this period, nor in the courts of common law and equity in the
latter part, were any very general or certain rules evolved. This
fact is proved by some of the decisions of these tribunals.
In the court of Admiralty it is assumed in several cases that
the contract of insurance is a contract of indemnity. It follows
that the insurer who has paid is entitled to the goods salved, on
paying salvage for them ; 9 and that, if goods salved were not
made over to the insurers, they were not liable to pay the sum
assured.10 It was in order to induce the insured to do their utmost
to salve the goods for the benefit of the insurers that the " sue and
labour" clause was inserted in these policies.11 It is fairly clear
1 13, 14 Charles II. c. 23. 2§ 2. 1.
3§2. 2. 4§§3- 2, 5. 1. 5§3- 1.
"Came v. Moye (1658) 2 Sid. 121.
7 Denoyr v. Oyle (1649) Style 166-167— There was however a doubt whether the
court might not have jurisdiction on a life policy if the assured was going to sea " on
merchants affairs."
8 Delbye v. Proudfoot (1693) 1 Show. 3g6.
9 Select Pleas of the Admiralty (S.S.) ii 149 (1573), Lopez, an insurer, gets recap-
tured goods, paying salvage.
10Cavalchant c. Maynard (1548) ibid ii 45 — in a defence to an action on a policy
it is stated that, "yf any of the goods so assured shulde within the tyme of assurance
. . . fall to any wrack . . . and yet sume parte of the same happen to be savyd
that parte . . . which shulde be so saved . . . oughte to be devyded equallye be-
twene thassurers . . . accordinge to every assurers proporcion . . . before any
assurance can be demanded of them " ; Broke c. Maynard (1547) ibid ii 47 ; cp. ibid ii
lxx (1573) action for freight on wine brought to London by insurers after the ship had
been wrecked.
11 Ibid ii 56 — a French policy of 1565 ; 58— a Dutch policy of 1638 ; in the former
policy the clause runs, " And we gyve to him . . . ample powar to helpe and gyve
order for to save them said shippes and marchandises or part of the same to sell and
distribute them yf ned be aswell to our prouffytte as dommage withowte asking us
leave or license. And we shall paye all charges averedge and expenses whiche shall
beren at the sewte and saving of them said shippes and merchaundisses be yt that
there be anything recovered or not."
CONTRACT OF MARINE INSURANCE 291
that deviation was a defence to an action on a policy ; l and that
no news of a ship for a year was presumptive evidence of its loss.2
We can see the influence of the continental rules in the assumption
that a reassurance is invalid ; 3 but apparently an insurance upon
the goods of alien enemies was at this period valid4 — though,
after some conflict of opinion, such insurances have been finally
decided to be invalid.5 It is clear too that the benefit of a policy
could be assigned.6
In the courts of common law it was clear that deviation was
fatal to the policy ; 7 but that for a loss occurring before the devia-
tion the insured could recover.8 There were also a few cases as
to the interpretation of the risks borne by the insurers. It was
held at law that pirates were a " peril of the sea " ; 9 and in equity
that the term " restraint of princes " did not cover a restraint due
to the wilful default of the insured.10 The ship and goods insured
were at the peril of the insurers till the ship arrived and was un-
loaded, if the policy was so expressed ; n but in England, as
abroad, there was some doubt as to the insurer's liability if the ship
was captured, and then recaptured, before being taken infra
prasidia}% It was clear that when the ship had been taken infra
prasidia and condemned, the original owner lost his property in
her;13 and Holt ruled in 1699 that, as the property in the ship
was gone, the insurer was freed from liability.14 But, as late as
1 7 1 2, the question was treated as open to argument, though the
court inclined to adopt Holt's view.15 There was an important
case, noticed by several reporters, upon the stipulation that the
1 Broke c. Maynard (1547) Select Pleas of the Admiralty (S.S.) ii 47.
2 De Salizar c. Blackman (1555) ibid ii 49 ; cp. ibid lxviii (1562-1563) — a year and
a day is the period stated ; it was to obviate questions of this kind that the clause
" lost or not lost " was inserted in insurances, Malynes, op. cit. 107.
3 Ravens c. Hopton (1561) Select Pleas of the Admiralty (S.S.) ii 120.
4Ibidii, xv, lxviii (1562-1563) ; lxx (1569-1570) ; cp. Park, Marine Insurance (1st ed.)
15, 16 ; and see above 281-283 for the earlier continental rules.
'Furtado v. Rogers (1802) 3 B. and P. 191, overruling Lord Mansfield's view in
Planche v. Fletcher (1779) 1 Dougl. 251.
6 Duckett c. Barne (1570) Select Pleas of the Admiralty (S.S.) ii 143.
7 Green v. Young (1702) 2 Salk. 444 ; this decision is really the converse to earlier
cases which held that loss after a deviation enabled the holder of a bottomry bill to
sue, Western v. Wildy (1684) Skin. 152; cp. Williams v. Steadman (1694) Holt,
K.B 126.
8 Green v. Young (1702) 2 Salk. 444.
9 Pickering v. Barkley (1672) 2 Rolle Ab. 248 — the merchants gave evidence
that this was the view held by the court for assurance cases ; s.c. reported by
Style 132 ; cp. Barton v. Wolliford (1688) Comb. 56.
10 (1690) 2 Vern. 176. u Anon. (1685) Skin. 243.
12 Above 280. 13Anon. (1642) March N.R. no.
14 Anon. (1699) 1 Ld. Raym. 724.
15Assievedo v. Cambridge (1712) 10 Mod. 77 — a report of the arguments of the
civilians ; on this argument the court inclined in favour of the insurer, but the point
was ordered to be argued by the common lawyers in the following term ; cp. Park,
op. cit. 81-82.
292 THE LAW MERCHANT
ship was "warranted to depart with convoy." It seems to have
been settled that the stipulation was satisfied if she so departed,
even though she was afterwards separated by tempest, and
captured.1 The question of the possibility of parol variations of a
policy gave rise to two decisions.2 It was settled both at law and
in equity that if the risk was not run the premium could be
demanded back.3 The court of Chancery i differing from the courts
of law,5 held that if the insured had no interest the policy was
void. Whether the fact of having advanced money on bottomry
was a sufficient interest was not perfectly clear.
It is obvious that these few cases cover very little ground. It
is also obvious that it was owing to the defects of the procedure of
the common law courts and the court of Chancery that the cases
were so few. At common law it was necessary to bring a separate
action against each of the underwriters ; and either the under-
writers or the insured could compel their opponent to proceed to
trial on all these actions." If a case was reserved, counsel were
left to draw it up at their leisure.7 These cases were often
argued in private, so that the decision could never be a guide to
any future case.8 In fact not much guidance could be expected
from such of these cases as were heard in open court, since both
judges and counsel were ignorant even of the meaning of the
ordinary technical terms used by merchants and seamen ; 9 and
the judge consequently left the case to the jury without any ex-
planation of the principles applicable.10 It was apparently the
custom always to hear two arguments ; u and in these, as in other
1 Jefferies v. Legendra (1692) Carth. 217; s.c. 3 Lev. 321 ; 2 Salk. 443 ; 1 Show.
320 — a long report of the argument for the plaintiff; 4 Mod. 58; cp. Lethulier's Case
(1693) 2 Salk. 443 ; Bond v. Gonsales (1704) 2 Salk. 445.
2 Kaines v. Sir R. Knightly (1682) Skin. 54 ; Bates v. Grabham (1703) 2 Salk.
445
263
716
3 Martin v. Sitwell (1692) 1 Show. 156 ; Deguilder v. Depeister (1684) 1 Vern.
4Goddard v. Garrett (1692) 2 Vern. 269; Harman v. Vanhatton (1716) 2 Vern.
sAssievedo v. Cambridge (1712) 10 Mod. 77 at p. 80; Depaba v. Ludlow (1721)
1 Comyns 360.
6 Park, op. cit. xli ; cp. Goram v. Fouke (1672) 2 Keble 722 ; and the preamble,
to 43 Elizabeth c. 12, cited above, 288 n. 6.
7 Park, op. cit. xliii. 8 Ibid xlii.
9 See Pepys, Diary iii 363-365, for an amusing account of the trial of an insurance
case in 1663 before Hyde, C.J., at the Guildhall — "it was pleasant to see what mad
sort of testimonys the seamen did give, and could not be got to speak in order; and then
their terms such as the judge could not understand ; and to hear how sillily the counsel
and judge would speak as to the terms necessary in the matter, would make one
laugh."
10 " In former times the whole of the case was left generally to the jury, without
any minute statement from the bench of the principles of law, on which insurances
were established; and as the verdicts were general, it is almost impossible to deter-
mine from the reports we now see, upon what grounds the case was decided," Park
op. cit. xlii.
" Ibid xliii.
CONTRACT OF MARINE INSURANCE 293
cases, it was always possible to delay the proceedings at law by
filing a bill in equity.1 Nor was the court of equity any more
satisfactory. Its delays were notorious.'2 It was out of touch
with commercial life and ways of thought. The somewhat over-
fine standards of morality, which it was beginning to require, were
hardly suited to the world of trade. A court, for instance, which
could decide that it would not assist the holder of a bottomry bond
because it carried unreasonable interest,3 which refused to accept
the value set upon the goods in a valued policy,4 was obviously
out of touch with the elementary principles of commercial and
maritime law applicable to these transactions.
If we compare the state of the law of insurance at the end of
the seventeenth century with its state at the end of the sixteenth
century, we can see that it has made no appreciable progress. At
neither period had there been any legislation, comparable to that
of continental states, directed against obvious abuses, such as the
practice of cloaking mere wagers under policies of insurance. At
neither period had much progress been made in the work of con-
verting those mercantile customs and that continental jurisprudence,
which Malynes describes,5 into ascertained rules of English law.
In one respect indeed there had been retrogression. The
business of underwriting was subject to some sort of control in the
sixteenth century ; but in the seventeenth century, that control
ceased with the disappearance of the Office of Assurances.6 It
was not till the early part of the following century that the Legis-
lature attempted to repress some of the abuses which were dis-
figuring the law ; and it was not till later in that century that
Lord Mansfield evolved from mercantile custom and foreign
precedents the principles of our modern law. Similarly we must
look to the same period for the humble beginnings, at Lloyd's
coffee house, of the voluntary association which has supplied, far
more efficiently than any governmental institution, that measure
of control over the business of underwriting which had been
attempted by the Council in the sixteenth century.
1Vol. i 465 and n. 4; Thus in Harman v. Vanhatton (1716) 2 Vern. 716, a plain-
tiff, having recovered on an insurance, brought an action on a bottomry bond, alleging
that, though the ship was lost, there had been a deviation ; a bill was then filed in
equity to stay this action, which was dismissed.
2 Vol. i 423-424, 426, 437-439.
3 Dandy v. Turner (1701) 1 Eq. Cas. Abr. 372 ; cp. the remarks on this case made
by Park, op. cit. 477, 478.
4Le Pypre v. Farr (1716) 2 Vern. 716.
5 Op. cit. chaps, xxv, xxvii, xxviii.
6 In 1693-1694 Luttrell, Diary iii 264, mentions a project "to make his
majestie sole insurer of all ships at a moderate rate, which should lye in bank at the
custome house, to answer the merchants losses " ; but it came to nothing.
294 THE LAW MERCHANT
The Origins of Other Forms of Insurance
I have dealt so far only with marine insurance. During the
whole of this period it was by far the most important branch of
insurance law. It was the only branch which the Council at-
tempted to regulate ; and it was the only branch which the
Legislature noticed.
Analogous to insurances against the risks of transport by sea
are insurances against the risks of transport by land. We have
seen that this species of insurance was known abroad ; * and per-
haps it was known in England2 — though there is not much
evidence as to this.3 Gradually, in addition to these insurances
of property against the risks of transport, insurances against other
dangers to property developed. But, during the sixteenth and
seventeenth centuries, the only other danger to property which
could be insured against was danger by fire ; and as yet it was
only houses that could be insured.4 As early as 1 591 a system of
fire insurance was in operation in Hamburg ; and proposals to
establish this kind of insurance in England had been made in 1635
and 1638.5 But it was not till after the Great Fire that it was
actually established. In 1 66j Barbon established an office which,
in 1680, was transferred to a company." In 1682 the City of
London started a rival undertaking.7 About the same time two
partners established a mutual society, known as the Friendly
Society ; and in 1696 another mutual society, known as the Hand
in Hand, was started.8
But, before fire insurance had developed, insurances against
risks, not to property, but to the person, were known both on the
1 Above 276 n. 7.
2 Malynes, op. cit. 107 — "other assurances are made upon goods and merchan-
dises sent by land from one place to another, by the conductors or carriers to Venice,
Frankford, or any other places, wherein the goods commonly are declared, and the
mark also : and this manner of assurance is especially performed by the conductors,
who take for the charges a certain allowance for every pound weight that the goods
do weigh, and moreover, 2, 3 or 4 upon the hundred pounds in value that the said
goods are esteemed to be worth : and he doth appoint a sufficient guard of souldiers
to convey the same by land and rivers to the places intended, which nevertheless by
a stronger power have many times been taken by the freebooters."
3 Scott, Joint Stock Companies iii 374 n. 2, cites the Merchant's Dayly Companion
(1684) 355, in which mention is made of insurances of goods "sent by wagon or cart
etc. by land from all robbers or thieves."
4 It was not till 1706 that Charles Povey founded an office to insure against losses
of goods and merchandise by fire, Scott, Joint Stock Companies iii 374.
6 Ibid iii 372. 6 Ibid. 7 Ibid 373 ; Luttrells Diary i 135.
8 Scott, Joint Stock Companies iii 373; it is there pointed out that there was a
difference between the Joint Stock and the Mutual Societies — " the former, through
the security deposited in the names of trustees, were in a position to pay claims, even
although the sums, received from premiums, had already been exhausted. A mutual
society on the other hand was constituted on the basis of exacting less for premiums,
and making up any deficit, when required, by a levy upon its members."
OTHER FORMS OF INSURANCE 295
continent and in England Of the early history of this form of
insurance I must say a few words.
In modern times the contract of insurance against risks to the
person takes the form either of life or accident insurance ; and
both are very different in character from the insurances against
risks to property. Life insurance is a contract of indemnity in so
far as it enables the insured to make provision against death or
the incapacities of old age. But it is also both in England ] and
elsewhere ■ a method of investment ; and it is this aspect of the
contract which is the most important, and causes it to differ
essentially from insurances against risks to property. Insurances
against risks to property are, as we have seen,3 simply contracts
of indemnity. The result is that, if the loss occurring from the
happening of the risk is otherwise made good, the insurer is not
liable, because the loss has not been incurred. On the other hand,
the contract of life insurance is not simply a contract of indemnity.
It is an absolute promise to pay at the death of the insured a
fixed sum of money, in consideration for the payment of certain
premiums during life, the amount of which is calculated by ref-
erence to the probable duration of the life insured.4 The amount
insured is payable whether or not any loss is incurred as a result
of the death ; and in this important respect the contract of
accident insurance resembles the contract of life insurance.5
During this period we can see nothing resembling the modern
contracts of life or accident insurance. The statistical knowledge,
which has rendered those contracts possible in modern times, was
wholly wanting ; 6 and even if it had been available, it is probable
1 Below n. 4.
2 Bensa, op. cit. 89—" L'assurance sur la vie, telle qu'on la concoit aujourd'hui,
n'est, a proprement parler, un veritable contrat d'indemnite. Au fond, cet acte de
prevoyance revient a n'etre que l'accumulation des epargnes qu'il est loisible a tout
particulier de faire selon sa condition de fortune, le role de la Compagnie qui assure se
bornant a garantir a l'assure qu'une mort prematuree ne viendra pas empecher la for-
mation du capital qu'il a entrepris de constituer par ses economies."
3 Above 278, 290.
4 This is clearly explained by Page Wood, V.C., in Law v. London Indisputable
Life Policy Co. (1855) x Kay and J. at p. 228 ; he said : " policies of insurance against
fire or marine risk are contracts to recoup the loss which parties may sustain from
particular causes. When such loss is made good aliunde, the companies are not liable
for a loss which has not occurred ; but in a life policy there is no such provision. The
policy never refers to the reason for effecting it. It is simply a contract that in con-
sideration of a certain annual payment, the company will pay at a future time a fixed
sum, calculated by them with reference to the value of the premiums which are to be
paid, in order to purchase the postponed payments " ; cp. Dalby v. India and London
Life Assurance Co. (1854) 15 C.B. at p. 387 ; "life assurance," said Parke, B., "is a
mere contract to pay a certain sum of money on the death of a person, in consideration
of due payment of a certain annuity for his life, the amount of the annuity being
calculated in the first instance according to the probable duration of his life."
5Bradburn v. The Great Western Railway (1874) L.R. 10 Ex. 1.
•Valery, Les Origines De L' Assurance sur le Vie 7-10; Pardessus, op. cit. v.
331-332, thought that it was possible that the contract of marine insurance was able to be
296 THE LAW MERCHANT
that the dangers and uncertainties of life in a comparatively
turbulent age would have made these contracts commercially
impossible. But we do see in Italy in the Middle Ages, and in
England during the sixteenth and seventeenth centuries, a few
insurances against certain risks to the person, which we can regard
as the germs from which our modern life and accident insurances
have grown up.
M. Bensa has shown that in Italy in the Middle Ages there
are instances of contracts of insurance against certain kinds of risks
to the person.1 There are insurances against risks of pregnancy,2
against death by the plague,3 or against death generally for a
certain limited period.4 It is interesting to note that in some of
these policies, as in modern life policies, there are stipulations as
to the parts of the world to which the insured may travel. But
it is probable that these insurances were never very frequent — the
definition of the contract of insurance given by Straccha in the
sixteenth century does not cover them.5 And, when they began
to develop, they were so often made a disguise for mere wagers,
that they were prohibited in Italy, Spain, and the Netherlands.6
Consequently they never developed, as marine insurance developed,
into an independent form of contract. The specimens which
developed in Italy because the progress made in mathematical studies gave insurers
some basis for the calculation of risks ; but, as Bensa, op. cit. 47-48, says, as yet no
proof of the truth of this conjecture has appeared. The fact that it was marine insur-
ance that was principally developed, and the fact that the risks were pretty constant
and well known, would seem to point to the fact that the risk was calculated by the
practical instinct of the parties to the contract ; as Bagehot says, Economic Studies g,
" men of business have a solid judgment — a wonderful guessing power of what is
going to happen — each in his own trade."
1 According to Petrus Santerna, De Assecurationibus et Sponsionibus Mercatorum,
Pars Secunda §§ 7-21, the legality of insurances upon various miscellaneous events
was determined by considering whether a stipulation, made conditional on the happen-
ing or not happening of these events, would have been valid; as "omnis causa non
inhonesta, etiam extranea, justificat stipulationem " (§ 18), so on all events not illegal
or immoral an insurance can be made; apparently even mere wagering contracts
(§§ 21-23) are valid, provided that the wager is not made upon any illegal game or
event — though, " magis solatii causa quern lucri concipiuntur."
2 Bensa, op. cit. 90-94 ; at Genoa a person accused of illicit connection with an-
other's slave was presumed to be the father of the child, if the slave, and her master
and mistress (being persons of good repute) swore to their belief in his guilt, and there
was any other corroborating fact ; such a person was liable to a heavy fine, which
was doubled if the slave died ; it was this risk which was frequently the subject of
insurance.
3 Ibid 97. 4 Ibid 95.
5 De Assecuratione, Introd. 46 — " Assecuratio est alienarum rerum, sive mari, sive
terra exportandarum periculi susceptio, certo constituto pretio."
6 Val£ry, Les Origines de L' Assurance sur la Vie 5 ; a good illustration of this
legislation is to be found in § xxxii of an Ordonnance of Philip II., which was pub-
lished by the Duke of Alva while he was governor of the Netherlands ; it runs as
follows : " et pour empecher les abus, fraudes, dols, et crimes commis a l'occasion des
assurances sur la vie des personnes, et des gageures sur voyages et autres inventions
semblables, nous les avons prohibees et deTendues, les prohibons et d^fendons comme
nuisibles et contraires au bienetre general et comme de mauvais example," Pardessus,
op. cit. iv 116.
OTHER FORMS OF INSURANCE 297
M. Bensa has collected are in the form of a sale. The insurer de-
clares that he has bought a certain amount of property from the
insured, and that he has promised to pay a fixed price for this
property by a certain date — the date being that on which the
risk terminates. The fixed price represents the amount of the
insurance. It is then declared that if a certain event — the risk
insured against — does not happen, the money is not to be pay-
able.
There is some evidence that contracts of this kind were known
in England during this period.1 In the only two cases on the
subject which have got into the books we have an insurance upon
the life of one who was going abroad,2 and an insurance upon the
life of a certain person for one year ; 3 and Rolle says that the
latter form of insurance was in common use both among merchants
and others.4 In other words, we get, as in the Middle Ages, in-
surances in view of certain definite risks, or for a definite period.
But, it would seem from Rolle's statement, that these insurances
were beginning to be used more extensively than in the Middle
Ages ; and Rolle's statement is corroborated by Malynes.
Malynes says:5 "Other Assurances are made upon the lives of
men, for divers respects, some because their estate is meerly for
term of life, and if they have children or friends to leave some
part of their estate unto, they value their life at so many hundred
pounds, for one or more years, and cause that value to be assured
at five, six, ten, or more for every hundred pounds, and if he do
depart this life within that time, the assurors pay the money ; as
it happened of late, that one being ingaged for Sir Richard Martin
knight, Master of the Mint, caused ^300 to be assured upon the
life of the said Sir Richard, being some ninety years of age, and
therefore gave twenty and five pro centum to the assurors : the
ancient knight died within the year, and the said assurors did pay
the money. Also one Master Kiddermaster having bought an
office of the six clerks of the Chancery, and taken up money of
others, caused for their assurance for many years together two
thousand pounds to be assured upon his life after four and five in
1 There is an account in the records of the court of Admiralty of an action between
the representatives of William Gibbons and sixteen underwriters, who had insured his
life from June 18, 1583, for twelve months; the insurance was for the sum of
£383 6s. 8d. and the premium was 8 per cent. ; the insured died May 29, 1584, and
the underwriters disputed payment on the ground that the insurance only lasted for
twelve periods of twenty-eight days ; the court gave judgment for the representatives
of Gibbons, Encycl. Brit. tit. Insurance.
2 Denoyr v. Oyle (1649) Style 166-167.
sSir Robert Howard's case (1700) 2 Salk. 625 ; s.c. 1 Ld. Raym. 480.
* " Issint si home garrant que tiel home viver a un an, car ceo est le common use
del securers enter marchants et autres, Trin. 39 Eliza. B.R.," Rolle, Ab. Action sur
case (A) 3 i p. 97.
5 Op. cit. 107.
298 THE LAW MERCHANT
the hundred, until he had paid that money; which is very com-
modious. Likewise a traveller undertaking a voyage to Jerusalem
or Babylon, delivering out money payable at his return, will
providently assure a sum of money upon his life, either to secure
some men that do furnish him with money to perform his voyage,
and to put forth the greater sum, or to leave some means unto his
friends, if he should die and never return."
Malynes makes it clear that these kinds of insurances against
personal risk were beginning to be used somewhat as they are used
in modern times. It was beginning to be discovered that " men
cannot invent or imagine anything but the value of it may be
assured." l But as yet this discovery was a new thing. It is not
till the eighteenth and nineteenth centuries that the legal incidents
and consequences of these new forms of insurances, whether against
personal risks or against risks to property other than risks of
transport, begin to be defined.
The developments of legal doctrine described in this chapter
show that, by the end of the seventeenth century, the foundations
of English commercial and maritime law had been laid. Commer-
cial law, and large parts of maritime law, had ceased to be separate
bodies of law, and were being absorbed into the system of English
law. It was only those parts of maritime law, which were still
administered by the court of Admiralty, which as yet remained to
some extent outside that system. The accomplishment of this
result had necessarily involved a large reception of foreign
principles ; but those principles had been modified by contact with
a common law which, as the result of the political controversies of
the seventeenth century, had won a position of supremacy in the
state ; and they were being adapted to a legal system in which the
law was supplemented by a system of equity administered in a
distinct tribunal. As I have already pointed out, the need for
this modification and adaptation caused the development of
English commercial and maritime law to be slower than in states
where they were administered in separate tribunals, which applied
1 Malynes, op. cit. 107 ; this is illustrated by a tale about a lottery told by Pepys'
Diary iv 192; in this lottery each ticket cost £10 and there was only one blank, and,
says Pepys, " the wisest man I met with was Mr. Cholmley, who insured as many as
would, from drawing of the one blank for i2d ; in which case there was the whole
number of persons to one, which I think was three or four hundred. And he so in-
sured about 200 for 200 shillings, so that he could not have lost if one of them had
drawn it, for there was enough to pay the £10 ; but it happened another drew it, and
so he got all the money he took " ; in the case of Davenant v. Midy (1695-1696)
House of Lords MSS. (N.S.) ii p. 196 no. 1009 there is mention in 1695-1696 of an
appeal to the House (which never came to a hearing) which turned on " policies of
insurance concerning the taking or not taking of towns."
CONCLUSIONS 299
the principles which civilians and canonists had for centuries been
developing from a basis of Roman law.1 But, from the point of
view of the common law, the absorption of this new domain of
commercial law was absolutely necessary to the consolidation of its
position of supremacy in the state. It did for that part of the
common law which was concerned with private relations, what the
results of the political controversies of the seventeenth century had
done for that part of it which was concerned with public law. For
just as the results of those political controversies had made it the
supreme law in the state, so this absorption of the domain of com-
mercial law gave it its continued supremacy over the private law
of the future.
Down to the seventeenth century the land law had been by far
the most important branch of the common law. The common law
possessed a body of principles applicable to this part of the law,
which were both more numerous and worked out into greater
detail, than the principles applicable to any other part of the law.
The broad result of the developments related in this chapter was
to establish commercial law as a rival to the land law — a rival
which will in the succeeding centuries oust the land law from its
old positioa But this result will not be accomplished immediately.
The immediate results were a broadening of the horizon of the
common lawyers, and a consequent willingness to receive new
ideas and new points of view, which were conditions precedent to
the continued supremacy of a law which claimed to guide the legal
development of a progressive state. Nor are these results surpris-
ing. This commercial law which had been thus received into the
common law was jus gentium ; and its reception had the same
results upon the mediaeval fabric of the older parts of the common
law, as the reception of the Roman jus gentium of the peregrine
praector had long ago had upon the jus civile.
Already at the end of the seventeenth century these results
had begun to be apparent. We cannot, it is true, say that they
produced much direct effect upon the land law. That law, as we
have seen, continued to be very mediaeval right down to the
reforms of the nineteenth century ; and, in spite of those reforms,
it still bears many marks of the fact that it is a branch of our
private law which dates from that feudal period when it was much
more than merely private law. But we have seen that the new
needs and new ideas of this age had left their marks even on the
land law, and that its rules were being adapted to the new needs
of landowners. On all other branches of the common law the
effect of the ideas which came with this new commercial jurisdic-
tion is beginning to be directly apparent. We have seen that the
1 Vol. v 153-154 ; vol. vi 522.
300 THE LAW MERCHANT
result of Holt's controversy with the merchants over the negotia-
bility of promissory notes, was to make it clear that the lawyers
must adapt their technical rules to the needs and usages of
commerce ; x and the manner in which other branches of the
common law were developing show that the lawyers were alive to
this necessity. We have already seen that the development of
the law of bailment,2 of the conception of a chose in action,3 and
of many branches of the law of contract,4 illustrate this fact ; and
that it is to a small extent reflected in the statutory developments
of the criminal law as to forgery,5 larceny,5 and shipping.6 We
shall see in the following chapter that it is also reflected in the
developments made in the law both as to specific torts, and in the
principles of liability for tort.
1 Above 176. 2 Vol. vii 432-433, 450-455, 461-463 ; above 259.
3 Vol. vii 515 seqq. 4See above chap, iii § 2. 6Vol. iv 501-503.
6 Vol. vi 400-401.
CHAPTER V
CRIME AND TORT
THREE sets of influences have shaped the technical develop-
ment of this branch of the law during this period — the
Legislature, the new ideas introduced by the Council and
the Star Chamber, and the doctrines of the common law. I have
given some account of the first1 and second2 of these influences
in the first Part of this Book. In this chapter I shall deal mainly
with the third of these influences — the doctrines of the common
law — and show how these doctrines, as both expanded and
modified by the first two of these influences, have created our
modern law of crime and tort
In this, as in the mediaeval period,3 the influence of the
Legislature upon the growth of the criminal law has been great.
We see it in the creation of new statutory treasons either to meet
particular political emergencies, or to supplement the deficiencies
of Edward III.'s Statute of Treason. We see it no less in the
creation of various new felonies. Some of these were intended to
supplement the law of treason by providing a more severe punish-
ment for such offences as riots, seditious libels, or conspiracies.
Others were directed to an object which, at this period, was con-
sidered to be closely cognate to the suppression of offences akin
to treason — the penalizing of dissent from the national church,
whether the dissenter was a Roman Catholic, a Protestant, or an
atheist Others created new or extended old offences against
person or property. Others were connected with that long series
of statutes in which the state had prescribed its policy in relation
to industry and commerce.4 Others were passed to penalize
certain forms of immorality, which the weakness of the ecclesiasti-
cal courts made it expedient to hand over to the common law.
And the activity of the Legislature was not exhausted by the
creation of these new treasons and felonies. We have seen that
this period is marked by the creation of many new crimes below
the degree of felony. These " misdemeanours " are definitely
criminal offences, and become gradually quite distinct from those
1 Vol. iv 492-532 ; vol. vi. 399-407. 3 Vol. v 167-214.
3 Vol. ii 449-453 ; vol. iii. 277. 4 Vol. iv 314 seqq. ; vol. vi. 313 seqq.
30I
302 CRIME AND TORT
quasi-criminal trespasses which are so striking a feature of the
mediaeval common law.1 They are either less serious forms of
similar offences which rank as felonies, or they are minor forms of
wrongdoing, which are, for the most part, matters to be dealt
with by the justices of the peace sitting in their petty or quarter
sessions. It was the creation of these misdemeanours which won
back to the field of criminal law many forms of wrongdoing,
which the emphasis laid in the Middle Ages on the civil aspect of
trespass had tended to annex to the field of tort.
But this enlargement of the field of criminal law was not due
entirely to the Legislature. It owed at least as much to the new
ideas introduced by the Council and the Star Chamber. We have
seen that it was through the influence of the procedure of the Star
Chamber that the criminal procedure of the common law tended
to acquire rules, which, by giving many advantages to the Crown,
increased the strength of the criminal law.2 The Star Chamber
also materially helped the development of the law as to riot, and
created the law as to the illegality of attempts to commit crimes.
It added important new elements to the crime of conspiracy, and it
created the crime of libel. It helped to enlarge the ideas of the
common law as to fraud ; and by its firm action in regard to such
offences as maintenance, champerty, and embracery, it helped to
make them less serious menaces to the proper administration of
the law, and thus to reduce them to the comparatively unimpor-
tant position which they hold in modern law.3
Both the enlargement of the criminal law by the Legislature,
and the new doctrines of the court of Star Chamber, necessarily
exercised important effects upon the development of many
common law doctrines in the sphere of crime and tort. But in
both spheres the common law contributed something of its own.
In the sphere of treason we shall see that it added to the law the
doctrine of constructive treason ; and that this addition, to a large
extent, rendered unnecessary those statutory extensions of
Edward III.'s statute, which were so frequently made during the
sixteenth and seventeenth centuries.4 In the sphere of felony it
developed and filled up the somewhat bare outlines of the mediaeval
common law as to the essentials of the common law felonies. One
or two illustrations of this process will indicate the manner in
which the rules of this branch of the modern criminal law were
built up on the basis of mediaeval principles.
The readiness with which all classes resorted to lethal weapons
to assert their rights, or to avenge any insult real or fancied, gave
abundant opportunity for elaborating the distinctions between the
1 Vol. iii 317-318, 370-371. 2 Vol. v 188-196.
3 Ibid 201-203. 4 Below 309-310.
COMMON LAW FELONIES 303
various kinds of Iwmicide, and, in particular, the distinction between
murder and manslaughter.1 Thus it was ruled in 1 553 - that, if A
set on B intending to kill him, and C suddenly intervened in the
combat, and B was killed, though it was murder in A, it was only
manslaughter in C ; and, it would seem from Plowden's comment,
that this ruling settled a point of law which had long been doubt-
ful.3 In 1 61 2 it was ruled that if a man, being provoked, in hot
blood beat another with a weapon not likely to cause death, and
it did cause death, he was only guilty of manslaughter ; * but it
was held in 1666 that the fact that there was provocation would
not reduce the crime from murder to manslaughter, if the accused
had used a weapon likely to cause death,5 a decision which was
approved by Holt, C.J., in 1698. 6 On the question what would
amount to a provocation, it was ruled in 1666 that mere words
would not be an adequate provocation for homicide ; " but if
upon ill words both parties suddenly fight, and one kill the other,
this is but manslaughter, for it is a combat between two upon
sudden heat." ~ But other cases show that this question gave
rise to many difficult questions and divisions of judicial opinion.8
In cases where the death had not followed immediately upon,
and was not solely occasioned by, the stroke, the law was inclin-
ing to the view that the person who gave the stroke was guilty
of homicide ; 9 but that a person who, without using physical
violence, had occasioned a death by " working on the fancy of
another," or by unkind or harsh usage, which was not ordinarily
calculated to have this effect, was not guilty.10 The rules as to
1 For a more detailed account of the development of the law during this period
see Stephen, H.C.L. iii 46-73 ; for the development of the principles of criminal
liability in relation to homicide and other crimes see below 433-446.
a Points ruled at the sessions held at Salop, Plowden at p. 100.
1 " Quod nota bene lector, for I have heard this greatly doubted, viz. if the
master lies in wait in the highway to kill a man, and his servants attend upon him,
and the master does not make his servants privy to his intent, and afterwards he, for
whom the master lies in wait comes, and the master attacks him, and his servants
seeing their master fighting, take his part, and all of them kill the man, whether or no
this should be murder in the servants. . . . But this is by the above rule of the Court
put out of doubt, viz. that it shall only be manslaughter in the servants," ibid at p. 101.
4 John Royley's Case, Cro. Jac. 296. 5 R. v. Grey Kelyng 64-65.
6 R. v. Keite, 1 Ld. Raym. at p. 144.
7 Resolutions preparatory to the trial of Lord Morley, Kelyng 55.
8 R. v. Huggett (1666) Kelyng 59-62 ; the whole subject was fully dealt with in
the elaborate judgment in R. v. Mawgridge (1707) Kelyng 119 in which all the judges
except Trevor, C.J., concurred ; R. v. Oneby (1727) 2 Ld. Raym. 1485 ; see Stephen,
H.C.L. iii 70-73.
9 Hale P.C. i 428-429. " This hastening of the death (by the wound or stroke)
is homicide or murder ... in him that gives the wound or hurt, for he doth not die
simply ex visitatione Dei . . . and an offender of such a nature shall not apportion
his own wrong, and thus I have often heard that learned and wise judge justice Rolle
frequently direct."
10 " In foro humano it cannot come under the judgment of felony because no ex-
ternal act of violence was offered . . . and hence it was that before the statute of
j Jac cap. 12 (vol. iv 510-511) witch-craft or fascination was not felony," ibid 429.
304 CRIME AND TORT
what facts would prove that a man had killed another by misad-
venture 1 or se defendendo *2 were being elaborated. Similarly the
cases in which homicide was justifiable were restated ; 3 and the
construction of the statute of 1 532/ which excused from guilt those
who killed persons attempting robbery or murder in or near the
highway, or in mansion houses, gave rise to a number of decisions
as to the cases which fell within its protection.5 The suicide of
Hales, J., in 1554 gave rise to a restatement of the rule that this
form of homicide was murder, because it was ot malice propense ; 6
but we shall see that it was during this period that the lawyers
were beginning to develop certain constructive extensions of this
requirement of malice, which in many cases gave it a very
artificial meaning, and tended to render very technical the dis-
tinctions between the different forms of homicide.7
The inconvenience caused by the very narrow ground covered
by larceny? led the judges to widen it as far as possible, by hold-
ing that a very small physical interference with the property would
amount to an asportation.9 The differences of judicial opinion as
to whether the appropriation of the bed linen by a lodger in
furnished apartments was larceny,10 led, as we have seen, to a
statute which declared that in such a case larceny had been com-
mitted ; u and the relations both of husband and wife, and of the
co-owners of property, led to some difficulties where goods were
appropriated by a wife or a co-owner.12 In the case of robbery
the law was inclined to construe somewhat liberally both the acts
which amounted to the taking of property by "putting in fear,"
and the acts which amounted to "a taking from the person";13
but the view was strictly adhered to that there must have been a
taking, and that the taking must have been effected by violence or
putting in fear.14 It was during this period that the essentials of
the offence of burglary were precisely ascertained.15 It was settled,
after some conflict of opinion, that there must be an actual break-
1 Coke, Third Instit. 56 ; R. v. Levett (1640) Cro. Car. at p. 538.
2 Hale, P.C. i 479-485.
3 Vol. iii 312; Foxley's Case (1601) 5 Co. Rep. at ff 109b, 110a.
4 Vol. iii 312 n. 3. 5 Hale, P.C. i 487-488.
H Hales v. Petit (1563) Plowden at p. 261 per Dyer, C.J.
7 Below 435-437. 8Vol. iii 361-366. "Hale, P.C. i 508.
10 R. v. Raven (1662) Kelyng 24 — held not to be larceny ; but this decision was
doubted, see ibid 81-82 ; Hawkins, P.C. Bk. i c. 33, § 10.
11 3 William and Mary c. g § 5 ; vol. vi 402.
12 Hale, P.C. i 513-514- 13 Ibid i 532-533-
14 See the case of R. v. Harman (1620), cited Hale, P.C. i 534-535.
15 Ibid 549-550. I stated, vol. iii 369, that for the rule that burglary must be
committed at night no earlier authority than a case of Edward VI. 's reign has been
cited ; but Marowe, Reading, Oxford Studies vii 378, states the rule as an essential
part of the offence. It is possible that it was not a perfectly well settled rule when
Marowe wrote in 1503 — though he states it as such ; and that the sixteenth-century
statutes, cited vol. iii 369, had something to do with its definite settlement.
MISDEMEANOUR AND TORT 305
ing, and that a mere breaking in law 1 was not sufficient.2 On
the other hand, an entry gained under false pretences in order to
commit a felony, was a sufficient breaking,3 and so was the break-
ing of an inner door by one who had come in through an open door
or window.4 In the case of arson we have seen that it was
settled in this period that a man who had burned his own house
was not guilty of this crime.5
The distinctions between principals in the first and second
degree, and between principals and accessories were elucidated
by their application to the facts of various cases ; G and we shall
see that the principles of criminal liability established in the
Middle Ages were elaborated, and in some respects modified."
The enlargement of the sphere of misdemeanour during this
period was due rather to the action of the Legislature 8 and the
Star Chamber,9 than to the action of the common law. But the
common law showed a tendency to follow this lead, and to hold
that obvious wrongs, which did not amount to felonies, were mis-
demeanours. Thus in Holmes's Case the court held that the
offence of burning one's own house, though it did not amount to
arson, was a misdemeanour punishable by fine and imprisonment.1"
In this period, however, as in the mediaeval period,11 it is in the
sphere of tort, rather than in the sphere of crime, that the common
law made its most important contribution to the law as to wrongs
under the degree of felony. We have seen that, even in the
mediaeval period, there were some signs that new developments
were beginning in this sphere ; and that the means by which
these developments will be made will be a liberal use of the
action on the case.12 All through this period this development
proceeded rapidly. It followed, firstly, that certain rules applic-
able to certain specific torts began to be developed, with the result
that these torts began to assume their modern characteristics ; and,
secondly, that the mediaeval principles of civil liability began to
be added to and modified.
1 " Everyone that enters into another's house against his will or to commit a
felony, tho' the doors be open, doth in law break the house," Hale, P.C. i 551.
8 " And altho' in the remembrance of some yet alive Sir Nicholas Hide chief
justice did hold that a breaking in law was sufficient to make a burglary . . . yet the
law is that a bare breaking in law ... is not sufficient to make a burglary without
an actual breaking," ibid i 551-552.
3 Kelyng 42-43 ; cp. R. v. Cassy and Cotter (1666) ibid 62-63.
4 R. v. Cassy and Cotter, Kelyng 62-63 ; R- v. Johnson (1666) ibid 58-59 ; it was
held in the last cited case that if no door had been broken, but only a trunk or box,
the offence did not amount to burglary.
5 Vol. iii 370 n. 7.
e(I553) Plowden 97-98; Kelyng 52-53; Hale, P.C. i 615-618; vol. iii 307-310.
7 Below 433-446. 8Vol. iv 512-521; vol. vi 402-405.
9 Vol. v 197-214. 10(i635) Cro. Car. 376.
"Vol. iii 318, 370-371. ^Ibid 406-407, 407-411.
VOL. VIII.— 20
30G CRIME AND TORT
But, in certain cases, the development of the law relating to
those wrongs, which hover on the border line of crime and tort,
was complicated by the two somewhat different streams of doctrine,
which originated in the courts of common law and in the Star
Chamber. When the jurisdiction of the Star Chamber was
abolished, many of the doctrines which it had developed were
taken over by the common law courts. These courts were there-
fore obliged to co-ordinate and reconcile these divergent streams
of doctrine. No doubt the common law was enriched by the
reception of these new ideas. But they tended to produce a
development of the law which was not altogether harmonious, or
altogether convenient ; and we shall see that its results are plainly
visible to-day in such branches of the law as defamation l and
conspiracy.2 In particular, it tended to obscure still further the
line between crime and tort. In the Middle Ages and later, the
double nature of, and the wide field covered by trespass and its
offshoots, effectually prevented any real distinction between tort
and crime, based upon the nature of the act done.3 In this
period, the fact that the Star Chamber treated certain acts as
criminal, while the common law courts remedied the same or
similar acts by a civil action on the case for damages, made it
more impossible than ever to draw any distinction on these lines.
" If," says Professor Kenny,4 "we know any particular occurrence
to be a crime, it is easy to ascertain whether or not it is also a
tort, by asking if it damages any assignable individual. But
there is no corresponding test whereby, when we know an oc-
currence to be a tort, we can readily ascertain whether or not it
is also a crime. We cannot go beyond the rough historical
generalization that torts have been erected into crimes, whenever
the law-making power had come to regard the mere civil remedy
for them as being inadequate,"
The only certain lines of distinction are to be found in the
nature of the remedy given, and the nature of the procedure to
enforce that remedy. If the remedy given is compensation,
damages, or a penalty enforced by a civil action, the wrong so
redressed is a civil wrong. If the remedy given is the punish-
ment of the accused, which is enforced by a prosecution at the
suit of the crown, the wrong so redressed is a crime or criminal in
its nature.5 Even this test sometimes fails to establish a clear
line of difference.6
The need to adjust the doctrines of the mediaeval criminal
1 Below 361-367. 2 Below 379-384, 392-394.
3 Vol. iii 317-318, 370-371. 4 Outlines of Criminal Law, 20-21.
5 See the classification of the various kinds of proceedings which may be taken
against wrongdoers in Kenny, op. cit. 16-17.
6 See Attorney-General v. Bradlaugh (T885) 14 Q.B.D. 667.
CONSTRUCTIVE TREASON 307
law to their new environment in the modern state ; the need to
modify, to enlarge, and to elaborate the law of tort and the prin-
ciples of civil liability, to meet the new demands caused by the
more varied and complex life of such a state ; and the need to
adjust and to harmonize the two similar yet divergent lines of
doctrine, which, during the sixteenth and seventeenth centuries,
were being simultaneously developed by the common law courts
and the Star Chamber — all had their influence on the technical
development of many of the rules of the law of crime and tort.
One or other of these causes is historically at the root of the
most salient of these developments during this period. With
these developments I shall deal in this chapter under the follow-
ing heads: — £ i. Constructive Treason and other Cognate Offences;
§ 2. Defamation ; § 3. Conspiracy, Malicious Prosecution, and
Maintenance ; § 4. Legal Doctrines Resulting from the Laws
against Religious Nonconformity ; § 5. Lines of Future Develop-
ment ; § 6. The principles of Liability.
§ 1. Constructive Treason and other Cognate
Offences
Constructive Treason
The three clauses of Edward III.'s Statute of Treason which
are designed to protect the safety of the state, are the clauses
which make it treason to compass or imagine the king's death,
to levy war against the king, and to adhere to his enemies.1
The last of these clauses can be briefly dismissed. It has not
been extended by construction in the same way as the first two
clauses. The only difficulty which has arisen in connection with
it has been the difficulty of deciding whether adherence to the
king's enemies out of the realm is included in it.2 This difficulty
arises solely from the wording of the clause, which enacts that it
shall be treason, " if a man do levy war against our Lord the
King in his realm or be adherent to the king's enemies in his
realm giving to them aid and comfort in the realm or elsewhere."3
This clause might be construed to mean that the words " or else-
where " govern only the words " giving to them aid or comfort,"
so that adhering to the king's enemies outside the realm is not
treason; or it might be construed to mean that the words "or
1 For this statute see vol. ii 449-450 ; vol. iii 287-293.
2 All the authorities on this subject are collected in R. v Casement [1917] 1 K.B.
98.
3 " Si homme leve de guerre contre notre dit Seigneur le Roi en son Roialme ou
soit aherdant as enemys notre Seigneur le Roi en le Roialme donant a eux eid ou
contort en son Roialme ou per aillours."
308 CRIME AND TORT
elsewhere" govern the whole clause, so that adhering to the
king's enemies, and it would seem also the levying of war,1 out-
side the kingdom are treason.2 It would seem from the pre-
cedents cited by Hale that, before the statute, adhering to the
king's enemies outside the kingdom was treason ; 3 and it seems
to have been assumed that the statute had not altered the law.
This is reasonably clear from a dictum in a case of 1 382, in which
it was laid down that, if a man adhered to the king's enemies in
France, "his adherence shall be tried where his land is, as has
been often done of adherents to the enemies of the king in Scot-
land."4 If he had no land, Hale thought that he might be tried
in any county in England, which is by no means improbable.5
No doubt there was some difficulty as to the trial of persons who
had thus committed treason out of the kingdom, owing to the
difficulties arising from the rules of venue.6 But we have seen
that this difficulty was removed by the statute of 1 543-1 544 ; 7 and
the wording of that statute makes it clear enough that, in the
opinion of the Legislature, acts committed abroad might amount
to treason.8 It follows, therefore, that Coke,9 Hale,10 and Haw-
kins u were well warranted in holding that adhering to the king's
enemies outside the kingdom was an offence which came within
the scope of Edward III.'s statute. Later cases have all laid
down the law in the same way ; n and, after an elaborate review
of the authorities, this interpretation was finally established as
correct in 191 6 in the case of R. v. Casement.
It is the first two of these three clauses of the statute, and
especially the first, which have been widely extended by judicial
construction. I shall deal firstly with the clause as to compassing
1 There seems to be no authority on the question whether levying of war out of
the realm is treason; but the reasoning of R. v. Casement [1917] 1 K.B. 98, and the
authorities on which that decision is based, clearly apply; on the other hand, Coke,
Third Instit. 9, and Hale, P.C. i 130, 154-158, seem to say that the levying of war must
be in the realm ; and Kenny, Criminal Law 269, takes this view.
2 R. v. Casement [1917] 1 K.B. at p. 122 per Lord Reading, C.J.
3 Case of Poynter, Claus. 7 Ed. III. part 1 m. 9, Hale, P.C. i 166 ; case of Culwin
Clans. 7 Ed. III. part 1 m. 15, ibid 167-168.
4 Fitz. Ab. Trial pi. 54 — " Si home soit adherent as enemys le roi en Fraunce sa
terre est forfetable, sa adherauns serra trei lou sa terre est come ad este souvent foitz
fait des adherauntz as enemies le Roy en Escoce " ; the translation is taken from the
note to R. v. Casement [1917] 1 K.B. 145.
5 P.C. i 170. 6 For these rules see vol. v 117-ng, 140-143.
7 35 Henry VIII. c. 2 ; vol. iv 524.
8 See R. v. Casement [1917] 1 K.B. at p. 124 per Lord Reading, C.J.
» Third Instit. 10-11. 10 P.C. I. cap. xv. » P.C. Bk. ii. cap. xxv § 46.
12 See the cases cited in R. v. Casement [1917] 1 K.B. at p. 128; the opinion of
the law officers in 1775, cited ibid at p. 143 ; Mulcahy v. R. (1868) L.R. 3 H. of L.
at p. 318 ; R. v. Lynch [1903] 1 K.B. 444 ; note also that in R. v. Vaughan (1696) 13
S.T. at p. 525 Holt, C.J., laid it down quite generally that, " for a subject of England
to join with the king's enemies, in pursuit of a design to burn or take any of the
king's or his subjects' ships, that is an adherence to the king's enemies."
CONSTRUCTIVE TREASON 309
or imagining the king's death, secondly with the clause as to levy-
ing of war against the king, and thirdly with the later history of
this branch of the law.
(i) Compassing or imagining the king's death.
The act made treason by the statute of Edward III. is not the
killing of the king, but the compassing or imagining his death —
the intention to kill him.1 Therefore in 1660 the judges resolved
that the regicides should be indicted for compassing ; and that the
actual murder of the king " should be made use of as one of the
overt acts to prove the compassing of his death." 2 Even in the
mediaeval period, the judges had seen that the fact that the gist
of the offence was an intention to kill the king, could be used to
extend its scope ; for they had held that the mere speaking of
words might be an overt act which evidenced such an intention.3
They had seen as clearly as their successors that such an intention
can be proved only by overt acts, " for the thought of man is not
triable" ; and that the statute could be extended by inferring an
intention to kill from overt acts which were only remotely con-
nected, if they were connected at all, with a formed intention to
kill the king. But these cases were not followed. The modern
construction of this clause, though it started from somewhat similar
premises, was elaborated under a different set of legal and political
conditions, and, unlike these mediaeval constructions, it resulted
in the establishment of a definite body of legal doctrine.
The Tudor kings respected the law ; and they were well aware
that nothing could be more dangerous to the security of their none
too secure throne than any attempt to pervert it It was for this
reason that, during the first sixty or seventy years of the sixteenth
century, many statutes were passed to extend the scope of treason,4
and that very little is heard of any constructive extension of this
clause of Edward III.'s statute. Hale, commenting on the statute
of 1 540-1 541, which made certain riots treason, remarks that it
shows, "how careful they were in this time not to be overhasty in
introducing constructive treasons, and to shew how the opinions of
the parliaments of Edward VI., queen Mary, queen Elizabeth went,
as to the point of constructive treason, and how careful they were
not to go far in extending the statute of 25 E. 3 beyond the letter
1 Vol. iii 292-293.
2 " It was resolved that the indictments should be for compassing the death of the
late king (the very compassing and imagining the king's death, being the treason
within the stat. 25 Ed. 3) and then that we might lay as many overt acts as we would, to
prove the compassing of his death : but it was agreed, the actual murder of the king
should be precisely laid in the indictment, with the special circumstances as it was
done, and should be made use of as one of the overt acts, to prove the compassing of
his death," Kelyng 8.
3 Vol. iii 293. * Vol. iv 492-498.
310 CRIME AND TORT
thereof." 1 The repeal of the new treasons created by Henry VI II.
on the accession of Edward VI., and the repeal of Edward VI. 's
statutes on the accession of Mary,2 show that the creation of new
treasons, even by Parliament, was not a popular exploit. It could
hardly be expected, therefore, that the courts would undertake
their manufacture.
But, though there was always a tendency to revert to the
statute of Edward III., it was abundantly clear that that statute
was wholly inadequate to protect the state. The Legislatures
which repealed Henry VIII.'s and Edward VI.'s statutes were
always obliged to re-enact some of the provisions of those statutes.3
The result was that, by Elizabeth's reign, the nation had begun to
grow accustomed to the necessity for an extended law of treason,
and to acquiesce in it. This changed attitude was due, not only
to the existence of these statutes, but also to two other causes. In
the first place, the modern territorial state was now well established.
It was coming to be generally recognized that allegiance to the
state ought to override all other ties. Hence it was realized that
the statute was, as Stephen has said, " worded too narrowly if it
was to be construed literally."4 In the second place, the dangers
to the queen's life from the constant Roman Catholic plots, and
the certainty that possibly the existence of the English state, and
certainly its orderly development, were bound up with her safety,
led the nation to acquiesce in any measures that could be devised
to preserve it. Hence the constructive extensions of this clause
of the statute came to be not only acquiesced in, but even approved
as necessary means of defence in a time of national emergency.
Under these circumstances, it is not surprising to find that it was
in the latter part of the sixteenth century, that the constructive
extension of this clause of the statute began to be made.
It would seem that, even before this date, the Legislature was
aware that the vagueness of Edward III.'s statute made the exact
content of its clauses by no means certain. Hale, while admitting
that it was "a fair topical argument," that the offences made
treasons by new and temporary Acts were not treasons within
Edward III.'s statute, yet points out that it is by no means con-
clusive ; for some of these new treasons turned out to be within
that statute ; and certain statutes which made offences felonies
"have this wary clause, 'the same not being treason within the
statute of 25 E. 3."'5 The vagueness of the statute helped the
1 P.C. i 293. a vol. iv 495. » Ibid. * H.C.L. ii 263.
5 " That tho' generally it be a fair topical argument, that when offences are made
treasons by new and temporary Acts, they were not treasons within the statute of
25 E. 3, for if they were, they needed not to have been enacted to be treason by new
statutes, as introductive of new laws in such cases, yet that doth not hold universally
true, for some things are enacted to be treason by new, yea, and temporary laws,
CONSTRUCTIVE TREASON 311
judges to extend it ; but, as I have already pointed out, the fact
that it was the intention to kill the king, and not his murder, which
was made treason, was the main reason why this clause could be
so extensively construed. As we shall now see, the construction
put upon it grew gradually more and more extensive, till it came
to include much of the ground covered by the clauses relating to
the levying of war against the king and adhering to his enemies.1
It is obvious that an intention to kill the king must be proved
from overt acts, which show that the person doing them had such
an intention. " This compassing, intent, or imagination," says
Coke,2 "though secret is . . . to be discovered by circumstances
precedent, concomitant, and subsequent" Now it is clear that it
is only from overt acts, which obviously point to a design to kill
the king, that an intention to kill him can properly be inferred.
But the judges, in considering overt acts alleged to prove this in-
tention, did not limit themselves to overt acts of this kind. They
considered the overt acts of the accused " with all endeavour for
the safety of the king." 3 Therefore they were led to rule that
acts which showed an intention, not to kill him, but to put any
kind of restraint or force upon him, might be good evidence of an
intention to kill him.
We can see the doctrine in its initial stage in Coke's Third
Institute. Treason, he says, must be proved by an overt act, " as
if divers do conspire the death of the king, and the manner how,
and thereupon provide weapons, powder, poison, assay harness,
send letters, etc., or the like, for execution of the conspiracy.
Also preparation by some overt act to depose the king or to take
the king by force and strong hand, and so imprison him till he
hath yielded to certain demands, this is a sufficient overt act to
prove the compassing and imagination of the death of the king :
for this upon the matter is to make the king a subject, and to
dispoil him of his kingly office of royal government. And so it
was resolved by all the judges of England, Hil. I Jac. Regis, in the
case of Ld. Cobham, Lord Gray, and Watson and Clark, seminary
priests : And so had it been resolved by the justices Hil. 43 Eliz.
in the case of the earls Essex and Southampton, who intended to
go to the court where the queen was, and to have taken her into
their power, and to have removed divers of her counsel, and for
that end did assemble a multitude of people ; this being raised to
the end aforesaid was a sufficient overt act for compassing the death
of the queen. And so by woeful experience in former times it
which yet were treason by the statute of 25 E. 3, as will appear in the sequel. And
therefore the statutes of 1, 2 Ph. and M. cap. 3, 1 E. 6 cap. 12, 23 Eliz. cap. 2,
making several offences felony, have this wary clause, the same not being treason
within the statute of 25 E. 3," Hale, P.C. i 261.
1 Below 314-318. 3 Third Instit 6. ' Coke, ibid 6.
312 CRIME AND TORT
has fallen out in the cases of Ed. 2, R. 2, H. 6, and E. V. that
were taken and imprisoned by their subjects." 1 Similarly, "if a
subject conspire with a foreign prince beyond the seas to invade
the realm by open hostility, and prepare for the same by some
overt act, this is a sufficient overt act for the death of the king." 2
And, if such overt acts were advocated in a published book, the
writing and publication of such a book was an overt act of com-
passing.3 Further, Coke decided in R. v. Owen^ that saying that
the king, being excommunicated by the Pope, may lawfully be
deposed and killed by any whatsoever, and that such killing was
not murder, was treason. Though, as we shall see, Coke held that
merely speaking scandalous words of the king was not treason, he
was of opinion that words which, to use Bacon's phrase, "disabled
the king's title," 5 and a fortiori words which incited to his murder,
were an overt act which proved the compassing of his death.
Clearly in Coke's day the constructive extension of this clause
of the statute had begun. That it had begun was due largely to
the political conditions prevailing in England and Europe. Coke's
illustrations make this clear. All the acts ruled to be overt acts
proving a compassing of the king's death were obviously dangerous
to him, and might easily lead to his death ; and this was especially
true in Elizabeth's reign, when the fate of the Reformation seemed
at times almost to depend upon her life. But this constructive
extension had not as yet gone very far ; and neither Coke nor
most of his colleagues were prepared to push it much further.
Thus, firstly, Coke was of opinion that mere scandalous words of
the king, importing that he was unfit to reign, unless they were
words which disabled his title, were not an overt act from which a
compassing of his death could be inferred — " it is commonly said
that bare words may make a heretick, but not a traytor without
an overt act " ; 6 and this was agreed to be law by all the judges
in Pines Case in 1629,7 after an exhaustive survey of the earlier
precedents. Some of the mediaeval precedents, it is true, pointed
1 Third Instit. 12. 2 Ibid 14.
3 " Cardinal Poole ... in his book of the supremacy of the Pope, written about
27 H. 8, incited Charles the Emperor, then preparing against the Turk, to bend his
force against his natural sovereign lord and country ; the writing of which book was
a sufficient overt act within this statute," ibid 14.
* (1616) 1 Rolle Rep. 185.
5Spedding, Letters and Life of Bacon v 109.
6 Third Instit. 14.
7 Cro. Car. 117 — " the speaking of the words before mentioned, though they were
as wicked as might be, were not treason. For they resolved that unless it were by
some particular statute, no words will be treason ; for there is no treason at this day
but by the statute 25 Edw. 3 c. 2 for imagining the death of the king etc., and the in-
dictment must be framed upon one of the points in that statute ; and the words spoken
here can be but evidence to discover the corrupt heart of him that spake them ; but of
themselves they are not treason, neither can any indictment be framed upon them."
CONSTRUCTIVE TREASON 313
in the opposite direction ; and some lawyers, including Bacon,1
would have liked to follow them. But probably the judges were
influenced by the wording of the statutes which had, in the pre-
ceding reigns, created new treasons. In many cases treasonable
words had been made only a misdemeanour for the first offence,
which shows, as Hale points out,2 that, in the opinion of the
Legislature, " words, tho' of an high nature, were not treason, nor
an overt act of compassing the king's death." Secondly, though,
as we have seen, Coke agreed that treasonable words set down in
writing and published were an overt act of treason by compassing
the king's death,3 in Peachanis Case* neither he, nor many of the
other judges, could be persuaded that the writing of treasonable
words in a sermon, which was never preached or published, nor
intended to be preached or published, was treason.5 No doubt
opinion was divided on this point ; 6 but Peacham, though found
guilty, was not executed. It would seem that Coke regarded such
an unpublished document as being equivalent to mere words, or
perhaps, as they were not published, as even less heinous. Thirdly,
Coke laid it down that a mere conspiracy to levy war was "no
overt act to or manifest proof of the compassing of the death of the
king within this Act," on the somewhat inconclusive ground that
so to hold would confound the several clauses of the statute.7
These limitations upon the constructive extension of this
clause of the Act were not wholly logical. They were, as I have
said, largely the product of the political conditions of the day ;
and it is clear that they were distasteful to the crown lawyers of
James I.'s reign. Bacon, in his conference with Coke on Peacham s
Case, contended that "there be four means or manners whereby
the death of the king is compassed or imagined. The first by
some particular fact or plot The second by disabling his title ;
as by affirming that he is not lawful king, or that another ought
to be king, or that he is an usurper or a bastard, or the like. The
1 Spedding, Letters and Life of Bacon v 109, 120 ; cp. vi 92-93.
2 P.C. i 315 ; and cp. his comment on 1, 2 Phillip and Mary c. 3 at p. 312.
3 Above 312 and n. 3.
••(1615) Cro. Car. 125 ; Spedding, Letters and Life of Bacon v 127.
5 " Edward Peacham was indicted of treason for divers treasonable passages in a
a sermon which was never preached, or intended to be preached, but only set down
in writings, and found in his study ; he was tried and found guilty, but not executed.
Note, that many of the judges were of opinion that it was not treason," Cro. Car. 125.
6 Thus Chamberlain, writing to Carleton Feb. 20, 1614, says, " the king since his
coming hath had the opinion of the judges severally in Peacham's Case, and it is said
that most of them concur to find it treason. Yet the lord chief justice is for the con-
trary," cited Spedding, op. cit, v 121 n. ; for James's own view that Peacham was
guilty of treason see ibid 105-106.
7 " One of them (i.e. the different treasons set out in the Act) cannot be an overt
act for another. As for example : a conspiracy is had to levy war, this (as hath been
said and so resolved) is no treason by this Act until it be levied, therefore it is no
overt act or manifest proof of the compassing of the death of the king within this Act
... for this were to confound the several clauses, " Third Instit. 14.
314 CRIME AND TORT
third by subjecting his title ; as either to pope or people ; and
thereby making him of an absolute king a conditional king. The
fourth by disabling his regiment, and making him appear in-
capable and indign to reign."1 Coke's view that mere words
coming under the fourth head were not treason, unless accompanied
by some other overt act, prevailed.2 But some of the more
general rules laid down by Bacon were, as we shall now see,
destined to prevail in the succeeding centuries ; and even un-
published writings and mere words were, at the latter part of the
seventeenth century, allowed to have a weight which it is difficult
to suppose would have been approved by Coke and his fellow
judges.
Thus, by the beginning of the seventeenth century, the con-
structive extension of this clause of the statute had begun.
During the latter part of that century it made rapid progress.
Firstly, it was laid down in 1663 that a conspiracy to levy war
could be regarded as an overt act to prove a compassing of the
king's death.3 Hale approved of this resolution ; 4 and he pointed
out that some of the sixteenth-century cases were not wholly con-
sistent with Coke's opinion to the contrary.5 He endeavoured to
reconcile Coke's opinion with the new construction of this clause,
by drawing a distinction between a mere constructive levying of
war 6 and an actual levying of war. He held that a conspiracy to
levy what was merely a constructive war was not, and a conspiracy
to levy an actual war was, an overt act to prove a compassing of
the king's death.7 This distinction is accepted by Foster,8 and is
undoubtedly good law ; but it is doubtful if it really expresses
Coke's meaning. The much more probable view is that the con-
structive interpretation of this clause had been extended between
the dates of Coke's and Hale's works. It was both an obvious
and an inevitable extension, but it was none the less an extension.
Secondly, it was laid down in R. v. Twyn 9 that the printing of a
book, in which the people were incited to sedition, to rebellion,
1 Spedding, Letters and Life of Bacon v 109. 2 Above 312.
3 " It was resolved and agreed by all now as it was before in Tong's case, and
Sir H. Vane's case, that the meeting and consulting to levy war is an overt act to prove
the compassing the king's death within the stat. of 25 Ed. 3. Altho' the consulting
to levy war is not actual levying within the statute, and so cannot be indicted there-
upon, for that treason of levying war, yet if they be indicted for the treason of
compassing and imagining the king's death, that consulting to levy war is an overt
act to prove that treason, altho' Co. PI. Cor. 14 delivers an opinion against this,"
Kelyng 20.
4 P.C. i 119.
5 Ibid i 120-122 ; it is clear, for instance, that the line between a conspiracy with
a foreign prince to invade this country, which Coke admitted to be a good overt act
to prove a compassing of the king's death, and a conspiracy to levy war, is very thin,
see ibid 122.
6 For what amounts to a constructive levying of war see below 319-321.
7 P.C. i 122-123. 8 Crown Law 213. 9 (1663) Kelyng 22.
CONSTRUCTIVE TREASON 315
and to the killing of the king, was an overt act, which could be
used to prove a compassing of his death. This was in conformity
with Coke's opinion.1 But in Algernon Sidney s Case- this ruling
was extended to cover the case of a writing, in which it was in
effect alleged that the king was subject to Parliament, and that
kings could be deposed.3 As it was not proved that the paper
was published,4 this goes very near to holding, contrary to Coke's
view, and in accordance with actual verdict in Peachairis Case,
that the mere writing of such a paper was an overt act of com-
passing the king's death.5 This ruling could only be justified in
one of two ways — either on the unproved assumption that the
writing was intended to be published, or, on the stronger ground,
that it was so connected with the other overt acts alleged, that the
writing, though not published, was evidence to support and ex-
plain them.6 The latter ground was, as we shall see, accepted as
good law after the Revolution.7 Thirdly, shortly after Pine's Case,8
in which, as we have seen, it had been laid down that merely
scandalous words spoken of the king did not amount to treason,9
it had been laid down in R. v. Crohagan 10 that, if words purporting
an intention to kill the king were accompanied by an overt act,
which seemed to imply an intention to put the intention into exe-
cution, this would amount to treason. In that case the accused,
being at Lisbon, had said, M I will kill the king if I may come to
him." He had then come to England, and, when arrested, had
spoken scornfully of the king. It was held that he was rightly
convicted for compassing the king's death. This case came near
to that of R. v. Owen ; u but the court seems to have laid some stress
I Above 312 and n. 3. * (1683) 9 S.T. 818.
3 See the indictment ibid at p. 819; and the passages from the book read to the
court, ibid at pp. 855-858.
4 Sidney denied that he had ever published anything in his life, ibid 878 ; and
no evidence was offered that he intended to publish these papers.
5 Thus Jeffreys, C.J., said in his summing up, "in the next place I am to tell you,
that though some judges have been of opinion that words of themselves are not an
overt act ; but my lord Hales nor my lord Coke, nor any other of the sages of the law,
ever questioned but that a letter would be an overt act sufficient to prove a man guilty
of high treason ; for scribere est agere" ibid at p. 889.
6 " Another thing which I must take notice of to you in this case, is to mind you,
how this book contains all the malice and revenge and treason that mankind can be
guilty of: it fixes the sole power in the parliament and the people ; so that he carries
on the design still, for their debates at their meetings were to that purpose. And
such doctrines as these suit with their debates ; for there a general insurrection was
designed, and that was discoursed of in this book and encouraged," ibid at
p. 893; Foster admits, Crown Law, 198, that if, "the papers found in Mr. Sidney's
closet had been plainly relative to the other treasonable practices charged in the in-
dictment, they might have been read in evidence against him, though not published."
7 Below 316-317. 8 (1629) Cro. Car. 117.
9 Above 312. 10 (1634) Cro. Car. 332.
II (1616) 1 Rolle Rep. 185 ; above ; Hale, P.C. i 115-116, draws from these cases
the moral that words, " that are expressly menacing the death or destruction of the
king, are a sufficient overt act to prove that compassing of his death " ; in Crohagan's
Case he lays stress on the act of coming to England.
316 CRIME AND TORT
upon the facts that the words were accompanied by the overt act
of coming to England, and that he had used scornful words when
arrested ; and this is the manner in which the case was explained
and justified by later lawyers.1 It followed that words could give
a treasonable colour to an otherwise innocent overt act. It is,
therefore, not surprising that, in 1660, the judges showed a
tendency to minimize the importance of the difference between
written and spoken words. "Words spoken," it was said,2 "are
the same thing if they be proved. Words are the natural way for
a man whereby to express the imaginations of the heart. If it be
any way declared that a man imagineth the king's death, that is
treason within the stat. 25 Edw. 3." And this tendency appears
in Jeffreys' summing up in Sidney s Case.3
The view that there was no difference between written and
spoken words was not followed after the Revolution. The rule
adopted was in accordance with the cases decided earlier in this
century — R. v. Owen, Pines Case, and R. v. Crohagan. "Loose
words," said Holt, C.J., in 1696,4 "spoken without relation to any
act or project are not treason : but words of persuasion to kill the
king are overt acts of high treason ; so is a consulting how to kill
the king ; so if two men agree together to kill the king, for the
bare imagination and compassing makes the treason, and any ex-
ternal act that is a sufficient manifestation of that compassing and
imagining is an overt act " ; and words, as Foster says,5 " may
explain the meaning of an overt act." But it was only under
these conditions that words could be an overt act of treason.
Similarly, the view that unpublished writings could be given in
evidence to prove an overt act of compassing, was rejected. Such
writings can only be given in evidence if they are relevant to en-
force or explain other overt acts charged in the indictment. Thus,
as Foster explains,6 "the papers found in Lord Preston's custody,
those found where Mr. Layer had lodged them, the intercepted
letters of Dr. Hensey, were all read in evidence as overt acts of
the treason respectively charged on them. . . . For those letters
1 Foster, Crown Law 203. 2 Kelyng 13. 3 Above 315 n. 6.
4Charnock's Case 2 Salk. 631: "the difference (between words and writings)
appeareth to me to be very great, and it lieth here. Seditious writings are per-
manent things, and if published they scatter the poison far and wide. They are
acts of deliberation, capable of satisfactory proof, and not ordinarily liable to mis-
construction. . . . Words are transient and fleeting as the wind, the poison they
scatter is at the worst confined to the narrow circle of a few hearers. They are
frequently the effect of a sudden transport, easily misunderstood and often misre-
ported," Foster, Crown Law 204.
6 Crown Law 204 ; he says that the reasons which Hale gives for this rule (P.C. i
m-115, 323) "founded on temporary Acts or Acts since repealed, which make
speaking the words therein set forth felony or misdemeanour, are unanswerable,"
ibid 201.
6 Ibid 198.
CONSTRUCTIVE TREASON 317
and papers were written in prosecution of certain determinate
purposes which were all treasonable and then in contemplation of
the offenders, and were plainly connected with them." The rule
as so settled was probably the rule which Hale considered to be
the law.1
But, except in these two cases, the seventeenth-century
decisions, extending the constructive interpretation of this clause,
were adopted, and even carried further, after the Revolution.
And, here again, the extension was probably inevitable. If a con-
spiracy to levy war, and the publication of a writing advocating the
deposition of the king, or merely arguing that it is lawful to depose
him, are overt acts which can be given in evidence to prove the
compassing of his death, it will be difficult to draw the line at these
acts. It will be difficult to rule out any acts done in preparation
for any other act, which, if accomplished, will be an overt act.
That no attempt was made to draw the line is clear from the case
of Lord Preston.2
Foster's summary of that case is as follows:3 "Lord Preston
and two other gentlemen had procured a smack to transport them
to France, but were stopped before they got out of the river, and
their papers seized Among the papers was found a scheme in-
tended to be laid before the French king or his ministers for
invading the kingdom in favour of the late king James II. ; with
many letters, notes and memoranda, all tending to the same pur-
pose. Lord Preston upon his trial insisted, among other matters,
that no overt act was proved upon him in Middlesex, where all
the overt acts were laid, for he was taken with the papers in the
county of Kent But the court told the jury, that if upon the
whole evidence they did believe that his lordship had an intention
of going into France, and to carry those papers thither for the
purposes charged in the indictment, his taking boat at Surrey stairs
which are in Middlesex, in order to go on board the smack, was a
sufficient overt act in Middlesex. Every step taken for those
purposes was an overt act." 4 The last sentence contains the gist
of the matter. It comes to this — every act, however remotely
connected with an overt act of compassing the king's death, is itself
an overt act As the future Lord Eldon contended, when, as
1 Hale, P.C. i 118 ; Foster, Crown Law 198.
2 (1691) 12 S.T. 646. 3 Crown Law 196.
* " Gentlemen give me leave to tell you, if you are satisfied upon this evidence
that my lord was privy to this design, contained in these papers, and was going with
them into France, there to excite an invasion of the kingdom, to depose the king and
queen, and made use of the papers to that end, then every step he took in order to
it, is high treason wherever he went ; his taking water at Surrey stairs in the county
of Middlesex will be as much high treason as the going a ship-board in Surrey, or
being found on ship-board in Kent, where the papers were taken," per Holt, C.J.,
12 S.T. at p. 740.
318 CRIME AND TORT
attorney-general, he was prosecuting Hardy in 1794/ any act
which showed that the person doing it intended " to put the king
in circumstances in which, according to the ordinary experience of
mankind, his life would be in danger," might be given in evidence
as an overt act of compassing his death. It followed that this
clause of the statute could be made to cover the ground covered
both by the clause against levying war against the king, and by
the clause against adhering to his enemies.2
It was attempted in 1794 to apply these doctrines to the
activities of the Constitutional and the London Corresponding
Societies.3 They were advocating universal suffrage and annual
Parliaments ; and they carried on their propaganda through their
branches, and through a convention in which their branches were
represented. They asserted that they only wished to press for
these reforms by constitutional means. The Crown asserted that
they were preparing for the deposition of the king and the estab-
lishment of a republic. The jury, by acquitting them, showed that
they did not believe the contentions of the crown. But this ac-
quittal by no means meant the end of the doctrine of constructive
treason. As Stephen has pointed out, it was applied in 1797 and
1798.4 But the trials of 1794 showed that it was an exceedingly
unpopular doctrine ; and the acquittals may have been partly
due to that fact.5 However that may be, it was in 1795 6 that we
got the first of those statutory interferences with the doctrine,
which have ended by putting the law on a different basis. But
with this legislation I cannot deal till I have considered the con-
structive extension of the clause as to levying war against the
king.
(2) Levying war against the king.
The offence declared to be treason by Edward III.'s statute
was the actual levying of war, and not a conspiracy to levy war.
A conspiracy to levy war was not made treason by the statute ;
and this defect was, as we have seen, cured at first by statute,7
and eventually by the constructive extension of the clause directed
against the compassing or imagining the king's death.8 Thus,
the wording of the clause against levying war, shows that its
constructive extension was bound to follow a line very different
from that followed in the case of the clause which has just been
1 24 S.T. at p. 256, cited Stephen, H.C.L. ii 276.
2 Foster, Crown Law 197 — " levying war is an overt act of compassing . . . and
so is a treasonable correspondence with the enemy, though it falleth more naturally
within the clause of adhering to the king's enemies."
3 24 S.T. 199 (Trial of Hardy); 25 S.T. 1 (Trial of Home Tooke) ; Stephen,
H.C.L. ii 274-277.
4 H.C.L. ii 278-279. 8 Ibid 277. 6 36 George III. c. 7.
7 Vol. iv 496-497. 8 Above 311 seqq.
CONSTRUCTIVE TREASON 319
considered. In fact it proceeded upon the line of giving a greatly
extended meaning to the phrase " levying war."
It is probable that the extensive construction put upon this
clause began at an earlier date than that put upon the clause as to
the compassing of the king's death ; and that it was suggested
by the distinction, drawn in the statute itself, between levying war
against the king, and a mere private war.1 Coke tells us that " it
was resolved by all the judges of England in the reign of king H.
8 that an insurrection against the statute of Labourers, for the in-
hansing of salaries and wages, was a levying of war against the
king, because it was generally against the king's law, and the
offenders took upon them the reformation thereof, which subjects
by gathering of power ought not to do."2 This, Hale tells us,
is the first instance that he had seen of "this interpretative levy-
ing of war." 3 But it is clear that the judges, who came to this
resolution, had arrived at the principle upon which the constructive
extension of this clause proceeded — the distinction between the
use of force for a merely private end which was a mere riot, and
the use of force for a public object which was treason ; and it is
clear that this distinction is directly suggested by the statute.4
This distinction was applied in many cases in the sixteenth
and seventeenth centuries. Thus in 1 597, in the case of R. v Brad-
shaw and Others, it was resolved that a rising to put down all en-
closures was a levying of war within the statute ; 5 and no doubt
the judges were encouraged to give this wide construction to the
statute by the Legislature, which had shown a readiness to
extend it by making a conspiracy to levy war, and occasionally
even a mere riot, treason.6 But it is obvious that it was some-
times difficult to draw the line between a riot raised to gratify a
merely private quarrel, and a riot raised to effect some public
general object Thus, in the case of a riot of weavers in 1675,
for the purpose of destroying engine looms, the judges were
equally divided as to whether it was treason or not Those who
held that it was treason emphasized the fact that the design was
to destroy all engine looms. Those who held that it was not,
regarded it as being "only a particular quarrel and grievance be-
tween men of the same trade against a particular engine that they
thought a grievance to them."7 And the manner in which the
provisions of the statutes already referred to, had extended this
clause, sometimes caused a difference of opinion. Thus, in 1668,
1 Vol. iii 291 ; Coke cites these words of the statute, and then says, " whereby it
appeareth that bearing of arms in war-like manner, for a private revenge or end, is no
levying of war against the king within this statute. So that every gathering of force is
not high treason," Third Instit. 10.
2 Third Instit 10. • P.C. i 132. * Above n. 1.
8 Third Instit, 9, 10. «Vol. iv 497. ' Hale, P.C. i i43*-i46\
320 CRIME AND TORT
in the case of R. v Messenger, Basely and Others, Hale refused
to agree with the other judges that a riot to pull down bawdy
houses, and to release prisoners, was treason, on the ground that a
statute of Mary had enacted that such offences were felony.1 It
was, however, agreed on all hands that there must be clear evi-
dence that the intention was to effect a purpose by warlike
violence ; 2 and that, if several persons had agreed to levy war,
and some had proceeded with their warlike design, and others
had not actually appeared in arms, the latter were equally guilty
of treason, because there are no accessories in treason.3
As in the case of the constructive extension of the clause dir-
ected against the compassing or imagining the king's death, so
in the case of this clause, the Revolution did not stop the develop-
ment of the law. The law laid down by Coke and Hale was re-
stated and applied in 1 710 in the case of Dammaree and Purchase ,4
who were convicted of treason for raising a riot to destroy all dis-
senting meeting-houses. In Stephen's opinion, their conviction
was a more severe application of the law than any of the previous
decisions5 — indeed he almost questions its correctness.6 But it
is difficult to see what other conclusion could have been reached,
without disregarding established authority ; and Foster does not
question its correctness.7 The provisions of the Riot Act of
17148 have generally prevented a recourse to the doctrine
applied in that case. But it was always possible to have recourse
to it; and in 1781 Lord George Gordon was indicted for treason
for helping to excite the riots, which raged between June 2nd and
June 6th in that year, in consequence of the passing of the Act
which had mitigated the penalties to which Roman Catholics were
liable.9 In his charge to the jury Lord Mansfield laid down the
law exactly as it had been laid down by Coke, Hale, and Foster.10
Lord George Gordon was acquitted, partly because the jury took
1 Kelyng 75 ; P.C. i 134-135. 2 Hale, P.C. i 150 ; below 328.
3 Kelyng 19. * 15 S.T. 522. 5 H.C.L. ii 270.
6 " If Dammaree's case is good law it seems difficult to say that any riot excited
by any unpopular measure, whether executive or legislative, is not high treason," ibid
ii 271.
7 See his account of the case which he had heard when a student, Crown Law
213-216.
8 1 George I. st. 2 c. 5 ; below 328-329. 9 21 S.T. 485.
10 " There are two kinds of levying war : — one against the person of the king ; to
imprison, to dethrone, or to kill him ; or to make him change measures or remove
counsellors — the other which is said to be levied against the majesty of the king, or, in
other words against him in his regal capacity ; as when a multitude rise and assemble
to attain by force and violence any object of a general public nature ; that is levying
war against the majesty of the king ; and most reasonably so held because it tends to
dissolve all the bonds of society, to destroy property, and to overturn government ;
and by force of arms to restrain the king from reigning according to law. Insurrections
by force and violence to raise the price of wages, to open all prisons, to destroy
meeting-houses, nay to destroy all brothels, to resist the execution of militia laws, to
throw down all inclosures .... have all been held levying war," ibid at p. 644.
CONSTRUCTIVE TREASON 321
the view, strongly urged upon them by Erskine,1 his counsel,
that he had had nothing to do with the riots ; and partly perhaps
because they disliked the doctrine of constructive treason.2 This
case, therefore, like the cases of Hardy and Home Tooke,3 effected
no modification in the legal doctrine of constructive treason ; but,
like those cases, it showed that some change in the law was
needed. But, though, as we shall now see, important changes
have been made, these changes have not affected this part of the
doctrine of constructive treason.
(3) The later history.
In 1795 4 a statute was passed which, in effect, gave statutory
force to the constructions which had been put upon the clause of
Edward III.'s statute relating to the compassing of the king's
death. It provided that it should be treason to compass : (i) not
only the death, but also the bodily harm, imprisonment, or restraint
of the person of the king, or his deposition ; (ii) the levying of
war on him either in order to compel him to change his policy, or
in order to overawe both or either of the houses of Parliament ;
(iii) the stirring up of any foreigner to invade any part of the king's
dominions ; such compassing being evidenced by printing, writing
or other overt act. In 1 848 5 it was in effect enacted that, such
of the treasons set out in the last cited Act as related to the com-
passing the death or bodily harm, the imprisonment or restraint of
the person of the king, should be treason ; and that the other
compassings specified in the Act should be felony.6 But nothing
in the Act was to affect the statute of Edward III.7 That statute
must of course be taken to bear the construction which the judges
have put upon it ; for there is nothing in this legislation to negative
that construction.8 The result is that the acts made felony by the
statute of 1848 could, if the crown wished, be treated as construc-
tive treason by virtue of the Act of Edward III. As Professor
Kenny justly says,9 it is "a singular juridical anomaly that
1 21 S.T. 587-621 ; see especially pp. 591-592, cited Stephen, H.C.L. ii 273, and the
peroration at pp. 616-621.
2 Dr. Johnson's saying (cited Stephen, H.C.L. ii 272 n.) that " he was glad Lord
George Gordon had escaped rather than a precedent should be established of hanging
a man for constructive treason," is well known.
3 Above 318.
4 36 George III. c. 7 § 1 ; made perpetual by 57 George III. c. 6 § 1.
5 n, 12 Victoria c. 12 § 1 ; the object of the Act was, by diminishing the penalty,
to render it easier "to prosecute these crimes with success," Kenny, Criminal Law
274.
6§3-
7 " Provided always . . . that nothing herein contained shall lessen the force of
or in any manner affect anything enacted by the statute passed in the twenty-fifth
year of king Edward III.," § 6.
8 Stephen, H.C.L. ii 280. 9 Criminal Law 274.
VOL. VIII. — 21
322 CRIME AND TORT
precisely the same action should thus occupy, simultaneously,
two different grades in the sphere of crime."
This legislation did not touch the clause relating to the levying
of war against the king. The result is that the constructive ex-
tension of this clause is in no way affected. Therefore, as Stephen
says,1 " a great riot for any public object " could still be treated as
treason.
Offences Cognate to Treason
At the time when the statute of Edward III. was passed treason
was regarded rather as an offence against the person of the king
than as an offence against the state.2 It has never ceased to be
an offence against the person of the king. In fact, since the Act
of 1848, it is only offences against the state which take the form of
attempts against the person of the king, which must be treated as
treason. But it is obvious that, as the conception of the state was
more distinctly realized, and as the king came to be conceived as
the head and representative of the state, treason must come to be
regarded as essentially an offence, and the most heinous offence,
against the state. We have seen that technical expression was
given to this transformation in the conception of treason, partly by
the Legislature, and partly by the growth of the doctrine of con-
structive treason. And, as the result of this transformation, we
can see the growth of a group of offences cognate to treason. As
compared with treason they are minor offences ; but they all have
this feature in common with treason that they are either (i) seditious
in character or tendency, i.e. they aim directly at the diminution of
the authority of the state ; or (ii) if not seditious, they involve
serious breaches of the peace, and an interference with the orderly
government of the state. I have already dealt with such of these
cognate offences as were created by statute during the sixteenth
and seventeenth centuries.3 At this point I propose to deal with
such of these offences as were mainly shaped by the writings of
the lawyers and the decisions of the courts.
The offences, directly seditious, which fall under the first of
these heads, are, firstly, the publication of seditious words or writ-
ings, and, secondly, seditious conspiracies. Of these two matters
I shall speak in the two following sections.4 The offences, less
directly seditious, which fall under the second of these heads, are
misprision of treason, and unlawful assemblies routs and riots. It
is with these topics that I shall now deal.
(1) Misprision of treason.
We have seen that the term " misprision " meant originally the
offence committed by a person who, knowing that a treason or
1 H.C.L. ii 280-281. 2 Vol. iii 289-290.
3 Vol. iv 497. 503 ; vol. vi 399-400. ■* Below 337-346, 379-384-
OFFENCES COGNATE TO TREASON 323
felony had been committed, failed to disclose it ; ! but that in the
sixteenth century it had got an extended meaning.2 When we
talk of misprision of treason or felony we are using the term in its
original sense ; and that its original sense was distinct from its
secondary sense is clear from the fact that Coke deals with mis-
prision of treason and felony, and with misprision generally, in
separate chapters.3
When Coke wrote, the offence had, as a result of statutes of
Edward VI. and Mary's reigns, been distinguished from treason ;
and, even before that time, its punishment had been definitely
fixed.4 Its punishment was imprisonment for life, forfeiture of
goods, and forfeiture of the profits of land for life.5 Misprision of
felony bore the same relation to felony as misprision of treason
bore to treason. It differed only in the fact that its punishment —
fine and imprisonment 6 — was less severe. But, though by the
middle of the sixteenth century misprision of treason had been
distinguished from treason, it was not till the middle of the seven-
teenth century that the two offences were clearly differentiated, by
the definition of the extent of the knowledge, the concealment of
which would amount to misprision. Firstly, in 1662 it was re-
solved by the judges," " that where a person knowing of the design
does meet with them, and hear them discourse of their traitorous
designs, and say or act nothing ; this is high treason in that party,
for it is more than a bare concealment, which is misprision, because
it sheweth his liking and approving of their design ; but if a person
not knowing of their design before, come into their company, and
hear their discourses, and say nothing, and never meet with them
again at their consultations, that concealment is only misprision of
high treason. But if he meet with them again, and hear their
consultations, and then conceal it, this is high treason. For it
sheweth a liking and an approving of their design." Secondly,
in 1663 it was resolved8 that "to make a misprision of treason,
there must be a knowledge of the design, and of the persons
or some of them ; for a man cannot be said to conceal what he
doth not know ; and therefore if one tell J. S. in general, that
there will be a rising without acquainting him with the persons
1 Vol iii 3S8-389. 2 Ibid 389 n. 1. 3 Third Instit. cap. iii and lxv.
4 '• Tho' some question was antiently, whether bare concealment of high treason
were treason (vol. iii 3S9 n. i), yet that is settled by the statute of 5, 6 E. 6 cap. 11,
and 1, 2 P. and M. cap. 10, viz. that concealment or keeping secret of high treason
shall be deemed and taken only misprision of treason, and the offender therein to
suffer and forfeit, as in cases of misprision of treason, as hath heretofore been used,"
Hale, P.C. i 371.
5 Coke, Third. Instit. 36 ; Hale, P.C. i 374. « Coke, Third Instit. 36.
7R. v. Tong, Kelyng 17; there was a similar resolution in the following year
ibid 21.
8 Kelyng 21, 22.
324 CRIME AND TORT
who are to rise or with the nature of the plot, if J. S. conceal
this, this is no misprision of treason, because he hath no knowledge
of the treason."
Certain statutes of Elizabeth's reign made misprision of treason
"a kind of substantive offence, and not consequential upon the
making of treason." * For instance those who counterfeited foreign
gold coin,2 or who failed to disclose any offer of reconciliation to
the Roman Catholic religion,3 or who aided or maintained any
person who tried to pervert any of the queen's subjects from their
allegiance to the church as by law established,4 were declared to
be guilty of this offence.
(2) Unlawful assemblies routs and riots.
It would seem that these three allied offences were beginning
to acquire their modern characteristics during the latter part of the
sixteenth century. A note in Brooke's Abridgment states in
substance that the offence of unlawful assembly is committed, if
there is an assembly for an illegal purpose against the peace, though
nothing is done in pursuance of that purpose ; that if the assembly
proceed on their way to the execution of their purpose the unlaw-
ful assembly becomes a rout ; that if they proceed to execute their
illegal purpose the rout becomes a riot ; and that the offence of
riot, and therefore of rout and unlawful assembly, cannot be com-
mitted by less than three persons.5 These definitions given by
Brooke, and, as we have seen,6 the treatment of these offences by
the court of Star Chamber, are the foundation of the definitions of
these offences recognized by our modern law.
Of the offence of " rout" it is not necessary to speak further.
The two important offences are unlawful assembly and riot We
1 Hale, P.C. i 376. 2 14 Elizabeth c. 3. 3 13 Elizabeth c. 2.
4 23 Elizabeth c. 1. All these statutes are cited, Hale, P.C. i 376-377.
5".\ota quod intelligitur quod ryot nest nisi per 3 al meyns, et doyent faire
illoyal acte, mes poet estre illoyal assemble, si le peuple eux assemble insimul pur
male purpose contra pacem, coment que ils fesont rien, tamen videtur per rehearshals
in statutes que si ils eurent assembles et puis procedunt ou chivauchent, ou allent
avant, ou mouvent per instigacion dun ou plures que est conductor de eux, cest un
route, eoque ils meuvent, et procede en route et nomber," Bro. ab. Riots pi. 4 ; Coke,
on the other hand, adopted, from Marowe's Reading, Bro. loc. cit. pi. 5, Putman,
Oxford Studies vol. vii 339, another definition of a rout — it signifieth, he says, " when
three or more do any unlawful act for their own or the common quarrel etc. as when
commoners break down hedges or pales, or cast down ditches, or inhabitants for a
way claimed by them or the like," Third Instit. 176; but, as Brooke says, the first
definition is the better, and it is that which is now recognized, Hawkins, P.C. Bk. i
c. 65 § 8 ; Kenny, Criminal Law 283 ; Blackstone, Comm. iv 146, tries to combine
the two.
6 Vol. v ig8-igg; [note it should have been there pointed out that Hudson's
definition of a rout is more correct than Coke's and Marowe's, and is probably based
on Brooke's; at p. 198 line 9 for "both by Hudson and Coke " read "by Marowe,
Brooke, Hudson and Coke," and line one from the bottom for " Coke " read
" Brooke."]
OFFENCES COGNATE TO TREASON 325
have seen that certain kinds of acts, which are included in the
definition of these two offences, had been the subject of important
statutes of Edward VI., Mary and Elizabeth's reigns ; l and, during
the whole of this period, both ofifences were becoming the centres
of important bodies of legal doctrine. I shall deal with the de-
velopment of this body of legal doctrine under the following heads :
(i) The definition of these offences ; (ii) the relation between the
repeal of the earlier legislation on the subject of riot to the distinc-
tion between riot and treason ; and (iii) the liabilities of rioters, and
the measures which may or ought to be taken for the suppression of
riots, and the dispersal of unlawful assemblies.
(i) The definition of these offences.
The view recognized by the court of Star Chamber,2 that it
takes at least three persons to commit the offence of riot or unlaw-
ful assembly, was acted upon in the case of R. v. Sudbury in 1700.3
In that case three persons having been indicted for an unlawful
assembly a rout and a riot, one was acquitted and two found guilty ;
and judgment was arrested because two could not be guilty of these
offences.4 It is obvious that to constitute a riot the element of
violence must be present ; and as it is clear that the offence of
unlawful assembly has, from the first, been regarded as an offence
which is preparatory to or contemplates a riot,5 it cannot be com-
mitted unless both the purpose of the assembly is illegal,6 and
there is an element of violence in the illegal purposes for which
the assembly is gathered together. It follows that a definition
of this offence, which makes it include an assembly which con-
templates the commission of any illegal act, is not historically sound ;
and it is the better opinion that it is not good law.7 Moreover,
there must be an element of deliberate purpose ; for if the members
1 Vol. iv 497. sVol. v 198. 3 1 Ld. Raym. 484.
4 It was pointed out that, " if the indictment had been that the defendant, with
divers other disturbers of the peace etc. , had committed this riot and battery, and
the verdict had been as in this case, the King might have had judgment," ibid.
5 " An unlawful assembly is when three or more assemble themselves together
to commit a riot or rout, and do it not," Coke, Third Instit. 176; Hawkins, P.C.
Bk. i c. 65 § 9 ; vol. v 198.
"Thus an assembly of a man's friends in his house merely for purposes of de-
fence is an assembly for a legal purpose, Y.B. 21 Hy. VII. Mich. pi. 50 ; Semayne's
Case (1605) 5 Co. Rep. at f. 91b ; Hawkins, P.C. Bk. i c. 65 § 10 ; but the purpose of
such an assembly must be strictly defensive — " si on fuit menace que si il vient a tel
marche, ou in tiel lieu, il sera batte la; en ceo cas il ne puit assemble des gens de
luy assister d'aller la in saufgard de sa personne, purceque il ne besoigne de aller la,
et il puit avoir remedy per surete de paix," Y.B. 21 Hy. VII. Mich. pi. 50 per
Fineux, C.J. ; and other authorities cited lay down the same law.
7 Vol. v 198 ; Y.B. 3 Hy. VII. Hil. pi. 1 ; Marowe's Reading, Putnam, Oxford
Studies vol. vii. 340-341 ; Kenny, op. cit. 281 ; Dicey, Law of the Constitution (7th ed.)
500. The source of the error was perhaps Blackstone, who, adapting Coke's defini-
tion of a riot to an unlawful assembly, says that it is " when three or more do assemble
themselves together to do an unlawful act, as to pull down enclosures, to destroy a
warren, and the game therein ; and part without doing it or making any motion
towards it " ; the qualification appears in the illustrations, but it is not explicitly stated.
326 CRIME AND TORT
of a lawful assembly suddenly fall out and come to blows, it was
settled, as early as I 503, that those falling out are guilty of an
affray, and that no guilt attaches to the other persons attending
the assembly.1
Coke had limited somewhat narrowly the sort of violent wrong-
doing which an assembly must contemplate in order to make it
an unlawful assembly. He defines it simply as "when three or
more assemble themselves together to commit a riot or rout and
doit not";2 and Blackstone simply repeats Coke.3 But, before
Blackstone's time, it was coming to be the general opinion that
this definition was too narrow, i t was coming to be thought that
account must be taken, not only of the purpose of the meeting, but
of its character ; and that, if it was of a character which would in-
spire the average citizen with reasonable fear, it might be held to
be an unlawful assembly. Marowe had put forward this view as
early as 1503 ;4 and it came into favour during the seventeenth
century. There was some slight authority for it in precedents of
1566 and 161 7 cited in a Star Chamber case of 1617;5 it was
more distinctly asserted by Holt, C.J., in 1708 ;(! and was clearly
stated by Hawkins a few years later.7 The later history of the
development of this offence is mainly concerned with working out
the consequences of this aspect of the offence ; and of establish-
ing criteria to distinguish between the cases when a meeting can
be held to inspire this fear, and so be an unlawful assembly, and
the cases when the fear, being inspired only by the unlawful acts
1 Marowe's Reading, Putnam, Oxford Studies vii 340; "if several are assembled
lawfully without any evil intent, and an affray happens, none are guilty but such as
act ; but if the assembly was originally unlawful, the act of one is imputable to all,"
R. v. Ellis (1708) 2 Sa!k. 595 /><r Holt, C.J.
2 Third Instit. 176.
3 Comm. iv 146.
4 " Item le maner de le fesaunce de le assemble poet faire une Riott lou assemble
fut loiall devant ; sicome home que entendj de aler al cessions ou merkett et vient
en harnes et ceux servantes aussi ove luy en harnes, et uncore paraventur son entent
ne fut de faire ascun Riott, mes le maner de luy face le Riott pur le presens del people,"
op. cit. 340.
5 Howard v. Bell and Others, Hob. 91 ; in that case tenants, having a common
interest, had assembled together to maintain their title ; the court inclined to the view
that this was lawful ; but the Lord Chancellor cited a case of 1566 where, in a similar
case, a riot had resulted ; it was not proved that the defendants had been concerned in
the riot; one Bell was fined for assembling the tenants, and "Hodson another tenant
was also punished for being present at that assembly, and the event of such an assembly
is in no man's power to moderate."
8 R. v. Soley 2 Salk. 594 ; at p. 595 it is said that, " the Chief Justice thought an
assembly might meet together with such circumstances of terror as to be a riot. He
called it a kind of assault upo.i the people."
7" But this seems to be much too narrow a definition ; for any meeting whatso-
ever of great numbers of people with such circumstances of terror, as cannot but
endanger the public peace, and raise fears and jealousies among the king's subjects,
seems properly to be called an unlawful assembly ; for no one can foresee what may
be the event of such an assembly," P.C. Bk i c. 65 § 9.
OFFENCES COGNATE TO TREASON 327
of strangers to the meeting, will not make the meeting an unlawful
assembly.1
The suggestion that a meeting is an unlawful assembly, if it
meets with intent to incite disaffection to the government as by
law established, does not seem to have been made in England till
nearly the middle of the nineteenth century.2 Generally, it would
seem, the members of such an assembly would be indictable for
conspiracy ; but, as Dicey suggests, they might be indicted for
this offence "if the circumstances of the time were such that the
seditious proceedings at the meeting would be likely* to endanger
the public peace."3
The growth of the law as to the offence of unlawful assembly
has thus been a comparatively late development. We may per-
haps find a reason for this in the history of that aspect of the law
as to riot with which I am about to deal.
(ii) The relation between the repeal of the earlier legislation
on the subject of riot to the distinction between riot and treason.
We have seen that a statute of I 549-50 4 provided that, if
twelve or more persons assembled together to make a riot with
the object of killing or imprisoning a Privy Councillor, or of un-
lawfully altering the laws established by Parliament ; and if they
remained together for one hour after a summons to disperse, all
so remaining should be guilty of treason ; and the same provision
was made for assemblies of forty persons or more, who remained
together for two hours and upwards, for purpose of committing
certain other traitorous rebellious or felonious acts. It was also
provided that those taking part in certain other riotous assemblies,
and not dispersing after due notice, should be guilty of felony ;
and that those who summoned, procured, moved, or stirred any such
assemblies should be guilty of the same offence. We have seen
that in 1 5 53 3 the offences which were made treason under this
Act were reduced to felony ; that this enactment was renewed in
1558;6 and that it remained in force till the end of Elizabeth's
reign, when it expired."
It is clear that these Acts hit most cases of riot and unlawful
assembly. While they were in force, therefore, there was not much
need to invoke the assistance of the common law. Moroever, any
other cases could be and generally were dealt with by the Star
1 Dicey, Law of the Constitution (7th ed.) 500-504.
2 " Any meeting of her Majesty's subjects which a party procures to assemble for
the purpose of addressing a seditious speech ... a meeting called for that purpose
and used for that purpose is an unlawful meeting," R. v. Ernest Jones (1848) 6
S.T.N. S. at p. 816 per Wilde, C.J. ; a similar ruling by the same judge was given
in R. v. Fussell (1848) ibid at p. 764.
3 Law of the Constitution (7th ed.) 501 n. 1.
4 3, 4 Edward VI. c 5 ; voL iv 497. 5 1 Mary Sess. 2 c. 12 ; vol. iv 497.
6 1 Elizabeth c. 16. ? Vol. iv 497 n. 9.
328 CRIME AND TORT
Chamber. When these Acts expired, political conditions made it
very unlikely that Parliament would pass any Act giving to the
crown powers which might easily be used against its political oppo-
nents ; and the Star Chamber was fully competent to deal with any
ordinary case of riot or unlawful assembly. But at the Restor-
ation the courts were faced with a new set of political conditions.
The Star Chamber had been abolished, and the courts were there-
fore obliged to use their common law powers. It was no doubt
because their powers were inadequate, that we see in this period
a development of the constructive extension of the clause of
Edward I II. 's statute of treasons, which made the levying of war
against the king treason.1 For if a riot could be brought within
the sphere of treason, not only was the punishment much more
severe, but also, as we shall see,2 the common law powers of
magistrates soldiers and others to suppress it were greater. But
the consideration of these cases necessarily involved a closer de-
finition of the essential features of the offence of riot. And it is
therefore, in this period, that the modern definition of this offence is
ascertained. In the first place, the object of the riot must be
merely a private object. " A recovers possession against B of a
house etc. in a real action or in an ejectione firmae, and a writ of
seisin or possession goes to the sheriff. B holds his house against
the sheriff, with force, and assembles persons with weapons for
that purpose, who keep the house with a strong hand against the
sheriff, tho' assisted with the posse comitatus. This is no treason
either in B or his accomplices, but only a great riot and mis-
demeanour." 3 In the second place, if the aspect of the assembly
was not warlike, it could only be a riotous assembly, and its acts
of violence could only amount to a riot. To make the acts of a
riotous assembly treasonable, " it must be such an assembly as
carries with it speciem belli, as if they ride or march vexilis ex-
plicatis, or if they be formed into companies, or furnished with
military officers, or if they are armed with military weapons. . . .
and are so circumstanced that it may reasonably be concluded
they are in a posture of war, which circumstances are so various,
that it is hard to define them all particularly."4
It is clear from this passage that the line between a mere riot
and a constructive levying of war was fine. As we have seen, it
caused differences of judicial opinion ; 5 and as, in many cases, the
penalty was out of all proportion to the offence with which in-
dividual rioters were charged, it shocked the public conscience.
It was for this reason that in 17146 the present Riot Act was
passed, which re-enacted in a modified form the provisions of the
1 Above 319-320. 2 Below 330-331. 3 Hale, P.C. i 146. 4 Ibid 150.
6 Above 319-320. 6 1 George I. st. 2 c. 5 ; Bl. Comm. iv 143.
OFFENCES COGNATE TO TREASON 329
Acts which had been in force during Mary and Elizabeth's reigns ;
and we have seen that it was due to this enactment that the govern-
ment generally avoided recourse to this species of constructive
treason.1 This statute in effect provides that, if twelve or more
persons are unlawfully assembled to the disturbance of the peace,
and a mayor, sheriff, or justice of the peace command them to dis-
perse, and they continue together for one hour after such com-
mand, all so continuing are guilty of felony ; and those who after-
wards disperse the assembly are indemnified for the consequences
of any violence which they may employ.
This Act has generally been found sufficient to deal with un-
lawful assemblies, the demeanour of which is obviously threatening,
and with actual riots. It was the large increase in meetings held
to advocate public objects, which occurred at the end of the
eighteenth and the beginning of the nineteenth centuries, which
has led to the development of the law as to unlawful assembly,
which I have already noticed.2 Their demeanour was generally
not obviously threatening ; and they were not assembled with
the direct object of committing a riot. In many cases, however,
it was fairly clear that a riot might easily result from their
meeting. But to them the provisions of the Riot Act were not
immediately applicable ; and therefore they have caused not only
a development of the law relating to unlawful assemblies, but also
some reconsideration of the law as to powers of the authorities in
dealing with these assemblies.3
(iii) The liabilities of rioters, and the measures which may or
ought to be taken for the suppression of riots, or the dispersal of
unlawful assemblies.
The law as to the liability of rioters who, in the course of their
riotous conduct, committed a felony, was strict and satisfactory.
It was established, as early as Edward III.'s reign, that all were
equally liable for the felony.4 "Note also," says Dalton,5 "that
if divers persons come in one company to do any unlawful thing,
as to kill, rob or beat a man, or to commit a riot, or to do any
other trespass, and one of them thereof kill a man, this shall be
adjudged murder in them all, that are present of that party abetting
him, and consenting to the act, or ready to aid him, altho' they
did but look on." Hale quotes this passage from Dalton with
approval, and cites a case of 1675 m which this rule of law was
restated.6 But, if no felony was committed, the law was not equally
1 Above 320. 2 Above 326.
3 Dicey, Law of the Constitution (7th ed) 504-512.
4 Fitz. Ab. Corone pi. 350 (3 Ed. III.).
5 Cited Hale, P.C. i 441.
6 Ibid 462-463 ; cp. Mackalley's Case (1612) 9 Co. Rep. at f. 67b.
330 CRIME AND TORT
satisfactory. Each individual rioter was only liable for a mis-
demeanour, whatever damage he did ; and thus the technical dis-
tinction between felony and misdemeanour tended sometimes to
lighten unduly the liability of the rioters.
The same cause tended also to hamper the authorities in sup-
pressing riots, or in dispersing unlawful assemblies ; and to render
the position of the ordinary citizen, who helped to suppress or
disperse them, somewhat dubious. It was largely for this reason
that the provisions of the Riot Act 1 were needed. This will be
clear if we look at the rules on this matter, some of which, though
elaborated and extended in this period, originated in the Middle
Ages.
In the sixteenth century every citizen was justified in taking
all reasonable means to put a stop to breaches of the peace com-
mitted in his presence. 2 He was therefore justified in intervening
to help to suppress a riot or to disperse an unlawful assembly.
But, if no felony had been committed, he could only use reason-
able force for this purpose ; and to-day 3 as in the thirteenth
century,4 he must at his peril hit the mean between excess and
defect.5 On the other hand, if a felony has been committed, all
the rioters are, as we have seen,6 guilty of felony ; and it is the
duty of every citizen to apprehend the felon.7 If, therefore, in
such a case a rioter is killed in resisting apprehension, the
homicide is justifiable.8 A fortiori, the same rule applies if some
duly constituted officer of the law has raised the posse comitatus,
or has called for assistance to suppress a riot or to disperse an
unlawful assembly, and a private person goes to his help, and kills
1 1 George I. st. 2 c. 5.
2 Marowe, Oxford Studies vii 336 ; Coke, Third Instit. 158 ; R. v. Pinney (1832)
3 S.T.N.S. at p. 4. Coke cites no authority, though in fact his statement is justified
by the resolution of the judges in the Case of Armes (1597) Pop. 121 ; the rule may
well be a sixteenth-century extension of the duty to arrest felons, vol. iii 599-601 ;
Maitland says, " we may strongly suspect that in general the only persons whom it is
safe to arrest are felons, and that one leaves oneself open to an action, or even an
appeal, of false imprisonment if one takes as a felon a man who has done no felony,"
P. and M. ii 580-581 ; this is justified by Marowe's statement, loc. cit., that though a
man could stop an affray, he had no action if he were hurt, but that those guilty of the
affray had an action if he hurt them; and see Stephen, H.C.L. i 193 ; in fact the right
to arrest felons merely on suspicion seems to be denied in 42 Ass. pi. 5 ; however, it
seems to be admitted in Y.B. 11 Ed. IV. Trin. pi. 8 that a private person may arrest
another whom he suspects of felony; and in Y.B. 10 Hy. VII. Pasch. pi. 8 it was said
that if A had wounded B, A could be arrested, till it could be known whether B died
of the stroke; this implies a power to arrest for an act which was not ascertained to be
felony ; and the rule stated by Coke may well be a further stage in the extension of
these precedents.
s Kenny, Criminal Law 283.
4 " The ordinary man seems to have been expected to be very active in the
pursuit of malefactors, and yet to act at his peril," P. and M. ii 581.
5 In R. v. Pinney (1832) 3 S.T.N.S. at p. 510 Littledale, J., speaking of the duty
of a magistrate called on to suppress a riot, said, "he is bound to hit the exact line
between an excess and doing what is sufficient."
u Above 329. 7 Vol. iii 599-600. 8 Hale, P.C. i 495.
OFFENCES COGNATE TO TREASON 331
a rioter who resists the attempt to apprehend him.1 And in this
case it would seem that the homicide of those resisting dispersal or
arrest would, prima facie at any rate, be justifiable, even though
no felony had been committed. -
Since an ordinary citizen might be made liable if he did not
help to suppress a riot or disperse an unlawful assembly when
called upon to do so, a fortiori an official could be made liable if
he neglected this duty. And just as statutes had added to the
powers of officials to take measures to arrest rioters,3 so other
statutes had rendered them liable to special penalties if the}'
failed in their duties.4 But these statutes only rendered more
explicit the common law principles ; and it is these principles
upon which the modern common law rests.5 The erroneous idea
that the Riot Act had somehow modified these principles, led to
the failure of the authorities to check the Lord George Gordon
riots in their initial stage, and to the authoritative correction of
this error.6
The development of the law of treason during this period, and
of offences cognate thereto, represents the contribution made by
the common law to the maintenance of the authority of the state
and its law. Professor Kenny has said that the severity of the
law on these matters was largely due to the inadequacy of its
powers for the prevention of crime — an inadequacy which was
due to the absence of efficient police. " The law felt its parish
constabulary to be comparatively powerless to prevent any offence
that involved the presence of a plurality of offenders. It con-
sequently attempted to supply the defect by very comprehensive
prohibitions of all such crimes." " This is true, but not I think
the whole truth. It explains, I think, the rules which have just
been discussed as to the measures which may or ought to be
taken by officials and others for the suppression of riots ; and, to
1 Hale, P.C. i 495.
3 " And it seems, as to this manner of killing rioters, that resist the ministers of
justice in their apprehending, it is no other but what the common law allows, or at
least what the statute of 13 H. 4 cap. 7 implicitly allows to two justices of the peace
with the sheriff or undersheriff of the county, by giving them power to raise the posse
comitatus, if need be, and to arrest the rioters. . . . And it seems the same law is for
the constable of a vill in case a riot happen within the vill," Hale, P.C. i 495 ; accord-
ing to Marowe, Putnam, Oxford Studies, vii 33S-339 the sheriff had, apart from this and
other statutes, no power to call for assistance — " Quar per le comen ley null puit com-
maunder les homez del conte de aler ove luy en cest cas forsque le Roie tantum ; quar
cest commaundement fut entendue une sequestracion de loure liberte."
3 34 Edward III. c. 1 ; 17 Richard II. c. 8 ; 13 Henry IV. c. 7 ; Hawkins, P.C.
Bk. i c. 65 §§ 15-29.
4 13 Henry IV. c. 7 ; 2 Henry V. c. 8 ; 19 Henry VII. c. 13.
* See Tindal C.J.'s charge to the grand jury at the opening of the special com-
mission to try the Bristol rioters in 1832, 3 S.T.N.S. 4-6.
B Kenny, Criminal Law 285. " Ibid 280.
332 CRIME AND TORT
some small extent, it perhaps explains the severity of the rules as
to these and other offences cognate to treason. But, it seems to
me, the severity of these rules admits not merely of explanation,
but of a justification, which is as much applicable to the present
age as to the age in which they were evolved.
However efficient the police system may be, a neglect to deal
severely with these and the like offences of a seditious kind will
speedily undermine the authority of the state and the law ; and,
as the history of the criminal law in this period shows, firm
measures of suppression will, even in the absence of an adequate
police system, vastly diminish their power for evil. More really
depends on the spirit which animates the rulers of the state than
upon the material means of coercion at their disposal. If a
state allows its subjects too large a freedom to express opinions
directly hostile to its authority, and too large a power to combine ;
and, if, in addition, it puts the most formidable of these combina-
tions above the law ; it will soon sink back to the condition in
which the English state found itself at the time of the Wars of
the Roses. It will soon find that its authority is small in com-
parison with that of its over mighty subjects, and that the duty of
allegiance to it is held to be of small account, when it conflicts
with the allegiance exacted by these usurpers of its authority.
In fact, the history of the law of treason and of the offences
cognate thereto, shows that the creation and preservation of a law-
abiding instinct is as difficult to maintain as it is easy to under-
mine. This work can only be successfully accomplished by a firm,
a far seeing, and an intelligent administration of the rules designed
to safeguard the state against those who attempt, from whatever
motives, to set up rivals to its authority, — an administration of
these rules which, on adequate grounds, is not afraid to be cruel.
As I have already pointed out,1 the more firmly the law is
administered on these lines, the less need there will be for cruelty ;
for the state will cease to fear its criminals, and will consequently
feel itself able to be generous. It was largely due to the fact that
the criminal law was administered on these lines during these two
centuries, that, at the end of this period, the state and its law had
emerged supreme. It is true that all through this period lawless-
ness was rampant. But the measure of the success which had
been achieved in dealing with this lawlessness, and especially with
lawlessness of the seditious variety, can be best measured by the
contrast between the state of England in 1 500 with its state in
1700. At the latter date life and property Were far more secure,
and the foundations of the future commercial prosperity of the
country had been laid.
1 Vol. v 196.
DEFAMATION 333
That this result had been attained was also due to the fact that
the common law had been careful to guard against many other
offences, which were almost as much cognate to treason as those
which have just been described. We shall see in the ensuing
sections that its rules as to the treatment of seditious speeches and
writings, as to conspiracy, and, to some extent, the rules which
imposed legal disabilities upon religious nonconformists, all helped
towards the attainment of this result ; for they all helped to form
a consistent public opinion upon such fundamental matters as the
sanctity of the law, the protection of property, and the sacredness
of contract Both the experience of the Commonwealth period,
and the experience of our own days, prove that the unlimited
tolerance of all opinions tends to undermine all these fundamental
principles upon which the stability of the state, and, therefore, of
civilization itself, depend.
§ 2. Defamation
The wrong of defamation is sometimes a crime pure and
simple, sometimes a tort pure and simple, and sometimes it can be
treated either as a crime or a tort at the option of the injured
person. Defamation is a crime when it consists of the publication
seditious obscene or blasphemous speeches, or the publication of
of seditious obscene or blasphemous writings, or the utterance of
writings or the utterance of speeches which directly incite to a
breach of the peace. Defamation is a tort when it consists of the
publication of writings, or the utterance of speeches, which hold
another person up to hatred contempt or ridicule, provided, in the
case of speeches, special damage can be proved or is presumed.
Defamation can be treated either as a crime or tort at the option
of the injured person, if it consists of the publication of writings
which hold him up to hatred contempt or ridicule.1
There is nothing anomalous in the fact that defamation is thus
treated sometimes as a crime, sometimes as a tort, and sometimes
as either a crime or a tort ; for it is obvious that defamatory
writings or speeches may, according to their contents, either (i)
affect the stability or the peace of the state or the morals of its
subjects, or (ii) cause loss of reputation or pecuniary loss to an
individual, or (iii) be both dangerous to the peace of the state and
harmful to an individual. In Roman law some forms of defama-
tion could be regarded either as delicts or as crimes ;a and, if no
1 Kenny, Criminal Law 305-314.
2 Girard, Droit Romain 393 — " Le droit imperial continua le mouvement com-
mence par la loi Cornelia et donna, finalement dans tous les cas, a la victime de
l'injure, le droit de choisir entre Taction d'injures et une punition physique infligee au
coupable extra ordinem par le magistrat que le jurisconsult recent Hermogenien re-
pre^ente comme choisie d'ordinaire de son temps."
334 CRIME AND TORT
specific person was defamed, the defamation could only be
criminally prosecuted.1 Nor is there anything anomalous in the
manner in which English law treats seditious obscene or blas-
phemous writings or speeches, or writings or speeches which
directly incite to breaches of the peace. What is anomalous is
the manner in which it treats defamation, when it consists of
writings or speeches which hold up another person to hatred con-
tempt or ridicule. In this part of the law a sharp line is drawn
between written and spoken defamation, which puts them into
two very different categories. Other systems of law sometimes
provide that the penalty shall be increased if the defamation is
written.2 No other system treats what is essentially the same
offence in two essentially different ways.
In English law the written defamation of another is a libel
which is actionable per se, and can be treated at the option of the
injured person as either a crime or a tort. On the other hand,
spoken defamation of another can only be a tort, and will only be
a tort if the words fall into a limited class of cases in which words
are actionable per se, or if they cause temporal loss. The result
is, as it has been well said, " absurd in theory, and very often
mischievous in its practical operation."3 It is only partially
remedied by the growth of the specific tort of slander of title,'1 and
of the analogous tort of maliciously uttering falsehoods which
damage a plaintiff's business.5 It is clear that this anomalous
state of the law can only be explained by the history of the way
in which the law on this, and other branches of the law of defam-
ation, has grown up.
Some of the leading principles and characteristics of the
modern law of defamation began to take shape during the last
half of the seventeenth century. The shape which they took is
the product of the earlier development of this branch of the law.
Of that earlier development I have already said something.6 But
in order to understand its modern development, a brief recapitu-
lation is necessary.
The primitive codes of the Anglo-Saxons 7 and other Teutonic
1 " Quod senatus-consultum necessarium est, cum nomen adjectum non est ejus,
in quern factum est : tunc ei, quia difficilis probatio est, voluit senatus publica quaes-
tione rem vindicari. Ceterum si nomen adjectum est, et jure communi injuriarum agi
poterit : nee enim prohibendus est privato agere judicio, quod publico judicio prae-
judicatur, quia ad privatam causam pertinet," Dig. 47. 10. 6 ; cp. Code 9. 36.
2 See e.g. the provisions of the German law cited L.Q.R. x 160 ; and the Scotch
law follows the same rule, ibid 161.
3 Veeder, The History of Defamation, Essays, A.A.L.H. iii 446.
* Below 351-352.
5 Below 352.
6 Vol. ii 366, 382-383; vol. iii 409-411 ; vol. v 205-212.
7 Vol. ii 382 n. 11.
DEFAMATION 335
races,1 like the primitive code of the Twelve Tables,2 punished
defamatory words ; and in later days the manorial and other
local courts gave remedies for this offence.3 But the provisions of
the Anglo-Saxon laws on this matter have no continuous history ;
and the jurisdiction of the manorial and other local courts decayed.
Unless the defamation was of a sort which came within the
statutes which created the offence of scandalum magnatum,4 the
mediaeval common law gave no remedy. For all other defamation
the suitor was obliged to go to the ecclesiastical courts. It was
not till the beginning of the sixteenth century that the common
law courts began to compete with the ecclesiastical courts in this
field of jurisdiction, by allowing an action on the case for defama-
tion.5 As usually happened when the common law courts and the
ecclesiastical courts came into conflict, the common law courts
soon deprived the ecclesiastical courts of the greater part of their
jurisdiction. This was due partly to the fact that the common
law courts prohibited the ecclesiastical courts from entertaining
any suit for defamation, unless the defamatory words had charged
the plaintiff with some offence of exclusively ecclesiastical cog-
nisance ; and partly to the popularity of the common law remedy
of damages, as compared with the merely ecclesiastical penalty
which the ecclesiastical courts could inflict.'5 In fact, so popular
was the common law remedy, that the common law courts found
themselves obliged to take measures to diminish the flood of
litigation which threatened to overwhelm them.7
Since the common law remedy was an action on the case,
damage was the gist of the action. And damage was construed
in a narrow proprietary sense. As Sir F. Pollock has said,8 " the
law went wrong from the beginning in making the damage and
not the insult the cause of the action." But this defect was in-
herent in the form of action by which alone redress could be
given ; and there is no doubt that the inherent defect of this way
of looking at this wrong was aggravated by the measures which
the courts took to stem this tide of litigation. We shall see that,
in order to discourage litigants, they insisted on construing words,
whenever possible, as innocent ; and that, in their endeavours to
give them a "mitior sensus," they construed them with the same
1 " Even the rude Lex Salica decrees that if one calls a man ' wolf ' or ' hare ' one
must pay him three shillings, while if one calls a woman ' harlot,' and cannot prove
the truth of the charge, one must pay her forty-five shillings. ... In the Norman
custumal it is written that the man who has falsely called another ' thief or ' man-
slayer ' must pay damages, and, holding his nose with his fingers, must publicly
confess himself a liar," P. and M. ii 536.
2 '* Nostrae contra xii tab. cum perpaucas res capite sanxissent, in his hanc quoque
sanciendam putaverunt : si quis occentavisset sive carmen condidisset, quod infamiam
faceret flagitiumve alteri," Cicero De Rep. iv 10, 12.
3 Vol. ii 382-383. * Vol. iii 409-410. « Ibid 411 ; vol. v 205-208.
■ Ibid 206. 7 Ibid ; below 353 seqq. s Torts (r2th ed.) 324.
336 CRIME AND TORT
strictness as they were accustomed to construe writs or pleadings,
with results which were often absurd and sometimes unjust.1
But, while the development of the tort of defamation was thus
being warped by the action of the common law courts, a wholly
new conception of this offence was being developed in the court
of Star Chamber. We have seen that the Council and the Star
Chamber had, in the interests of the peace and security of the
state, assumed a strict control over the press.2 Naturally the
Star Chamber assumed jurisdiction in all cases in which its rules
on this matter had been infringed ; and this led it to regard de-
famation as a crime. Borrowing perhaps from the Roman law as
to Libella Famosa,3 it treated libels both upon officials and private
persons as crimes. The former were seditious libels, and directly
affected the security of the state. The latter obviously led to
breaches of the peace. On the same principle it dealt with
seditious words.4 But we have seen that in this case its practice
was not always consistent ; for, at any rate in the case of words
which were not seditious, their truth was allowed to be pleaded as
a defence — a defence which is, as we have seen, wholly out of
place if defamation is regarded as a crime.8
When the Star Chamber was abolished, the law of defamation
thus consisted of two very divergent parts. In the first place,
there was the body of law developed in the Star Chamber, which
regarded defamation as a crime ; and, in the second place, there
was the body of law developed round the common law action on
the case, which regarded defamation as a tort. The common law
judges after the Restoration took over the law as developed by the
Star Chamber, and further developed it on similar lines. They
also further developed the conception of the tort of defamation.
Naturally these cognate bodies of law, being developed by the
same tribunals, exercised a reciprocal influence on one another ;
and our modern law is the result. The history of its construction
during this period I shall trace under the two heads of Defama-
tion as a Crime, and Defamation as a Tort.
Defamation as a Crime
The two main varieties of the crime of defamation were dis-
tinguished by Coke in the case De Libellis Famosis.6 It can be
committed either against a private person, or against a magistrate
or other public person ; and the latter is the much more serious
offence, " for it concerns not only the breach of the peace but
the scandal of Government." The first variety can be quickly
1 Below 355-356 ; vol. v 206. 2 Vol. vi 367-370. 3 Vol. v 208.
4 Ibid 211. 5 Ibid 211-212. 6(i6o6) 5 Co. Rep. 125a; vol. v 208,
DEFAMATION AS A CRIME 337
disposed of. It was defined by the common law courts and
punished, just as the Star Chamber had defined and punished
it.1 The chief addition made by the common law courts to the
earlier law was the definite settlement of the rule, foreshadowed
in the earlier law,- that mere spoken words defamatory to a I
private person cannot be treated as a crime.3 We shall see that I
this decision is important in the history of defamation as a
tort ; for it probably had a good deal to do with creating the
unfortunate distinction between the torts of libel and slander.4
It is the second variety of libels which is the most important,
and it is the law as to these libels which was the most developed
during this period. Naturally, as we shall see, some of the
principles thus developed helped to elucidate some of the incidents
of the first variety of the crime of libel.
The crime of publishing defamatory statements against the
government falls under several heads. It may be committed by
publishing seditious writings or by speaking seditious words, or
by publishing blasphemous or obscene writings, or by speaking
blasphemous or obscene words, or by uttering words which incite
directly to a breach of the peace.5
With the history of the law as to blasphemous writings and
speeches I shall deal later.6 With regard to obscene writings and
speeches, Holt, C.J., seemed to think that this was matter for
the ecclesiastical courts, and was not remediable by indictment ; "
but a few years later this opinion was reversed, and the law was
placed on its modern basis by the decision in R. v. Cur/.s With
regard to words which tend to a breach of the peace, Holt, C.J.,
ruled in R. v. Lang-ley0 that "words that directly tend to breach
of the peace may be indictable ; but otherwise to encourage
indictments for words would make them as uncertain as actions
for words are." M It is the history of the law as to seditious
writings and words which is the most important. The history
of the manner in which it was shaped by the common law courts,
after they had taken over this jurisdiction from the Star Chamber,
I must now relate.
Stephen has pointed out u that the view which the law takes
1 See R. v. Beare (i6gg) i Ld. Raym. 414 ; S.C. 2 Salk. 417.
2 Vol. v 211-212. 3 R. v. Penny (1697) 1 Ld. Raym. 153.
4 Below 364. s Kenny, Criminal Law 313. 6 Below 407 seqq.
?R. v. Read (1708) Fortescue 98; in that case Powell, J., said, "this is for
printing bawdry stuff, but reflects on no person, and a libel must be against some
particular person or persons, or against the Government. It is stuff not fit to be
mentioned publicly; if there should be no remedy in the Spiritual Court, it does not
follow there must be a remedy here. There is no law to punish it, I wish there were,
but we cannot make law."
8 (1727) 2 Stra. 788 ; cp. R. v. Hicklin (1868) L.R. 3 Q.B. 360.
9 (1704) 6 Mod. 124. 10 Ibid at p. 125. n H.C.L. ii 299-300.
VOL. VIII. — 22
338 CRIME AND TORT
of the offence of publishing seditious writings or uttering seditious
words, will depend upon the view held as to the relation of rulers
to their subjects. " Two different views may be taken of the
relation between rulers and their subjects. If the ruler is regarded
as the superior of the subject, as being by the nature of his position
presumably wise and good ... it must necessarily follow that it
is wrong to censure him openly, that even if he is mistaken his
mistakes should be pointed out with the utmost respect, and that
whether mistaken or not, no censure should be cast upon him
likely or designed to diminish his authority. If, on the other
hand, the ruler is regarded as the agent and servant, and the
subject as the wise and good master, who is obliged to delegate
his power to the so-called ruler ... it is obvious that this
sentiment must be reversed. Every member of the public who
censures the ruler for the time being exercises in his own person
the right which belongs to the whole of which he forms part. He
is finding fault with a servant. . . . To those who hold this view
fully, and carry it out to all its consequences, there can be no such
offence as sedition. There may indeed be breaches of the peace
which may destroy or endanger life limb or property, and there
may be incitements to such offences. But no imaginable censure
of the government, short of a censure which has an immediate
tendency to produce such a breach of the peace, ought to be
regarded as criminal." The first of these two views was the
accepted view in the seventeenth century. The second was
gathering strength during the latter part of the eighteenth century,
and is now the accepted view.1 It is the history of the develop-
ment of the law under the influence of the first of these views that
I must here describe. The modifications effected by the growth
of the second will be dealt with in a subsequent Book of this
History.
We have seen that both the rules relating to the censorship
of the press,2 and the manner in which the Star Chamber ad-
ministered the law of defamation,3 show that, during this period,
the first of these two views was that taken by the law. After
the Restoration the principles upon which the Star Chamber had
acted were taken over by the common law courts ; and it was
inevitable that this should be so. We have seen that statutory
force had been given to a set of rules for the regulation of the
press, which were in substance not dissimilar to those which had
been made by the Star Chamber.4 The principles applied by
the Star Chamber to seditious writings had been embodied by
1 R. v. Lovett (1839) 9 C. and P. at p. 466 per Littledale, J. ; R. v. Suliivan (1868)
II Cox C.C. at p. 58.
2 Vol. vi 367-370. '■'• Vol. v 208-212. 4 Vol. vi 372-3.
DEFAMATION AS A CRIME 339
Coke in the case De Libellis Famosis ; x and he had affirmed that
these offences could be punished either by indictment at common
law or by proceedings in the Star Chamber.2 The view held by
the king and the judges as to the relation between rulers and their
subjects, were the same as those held by the king and his judges
in the earlier part of the century. Hence we find that the judges
accepted the rules that truth was no defence to an indictment,3
that publication was not necessary,4 and that the death of the
person libelled was not necessarily a bar to a prosecution.5 They
also accepted the rules that the contriver the procurer and the
publisher were all equally guilty;0 and Holt, C.J. made it quite
clear that both the writing and the copying of a libel, without just
cause or excuse, amounted to the contriving of a libel.7 Similarly,
the common law courts had shown, in the earlier part of the seven-
teenth century, that they were prepared to follow the lead of the
Star Chamber,8 and treat seditious words in substantially the
same manner as seditious writings. Part of the charge against
Eliot Holies and Valentine was the uttering of seditious words ;9
and other cases show that the common law courts treated as
criminal seditious words not only against the king,10 but also
against his government,11 the judges,12 or the established church.13
I (1606) 5 Co. Rep. 125a. 2 At ff. 125a, 125b.
3 Vol. v 210 ; Anon (1707) 11 Mod. 99 ; Bl. Comm. iv 150.
4 Vol. v 210 ; Bl. Comm. iv 150.
8 Vol. v 211 ; R. v. Topham (1791) 4 T.R. 126 ; cp. R. v. Critchley (1734) cited
ibid 129 note 4 ; Hawkins, P.C. Bk. 1 cap. 73 § 3.
* Lamb's Case (161 1) 9 Co. Rep. 59b ; vol. v. 210.
7 R. v. Beare (1699) 1 Ld. Raym. at p. 417 — " the writing of a copy of a libel is
the writing of a libel. And if the law were otherwise it might be very dangerous, for
then men might take copies of them with impunity ; and for the same reason the
printing of them would be no offence ; and then farewell to all government."
8 Vol. v 211.
9 Stephen, H.C.L. ii 307.
10 It is clear from Pine's Case (1629) Cro. Car. 117, 126, that the judges con-
sidered that an offence had been committed, though it was not treason, above 312 ;
R. v. Harrison (1678) 3 Keble 841.
II R. v. Harrison (1678) 3 Keble 841 ; R. v. Frost (1793) 22 S.T. at p. 517 ; cp.
R. v. Winterbotham (1792) 22 S.T. 823, 875; R. v. Briellat (1793) 22 S.T. 909.
Stephen points out, H.C.L. ii 377, that no prosecution for this offence has taken place
for many years ; but that " seditious language has on several occasions been made the
subjtct of prosecutions, the charge being that of unlawful assembly or seditious con-
spiracy, of which violent speeches have been regarded as overt acts."
12 justice Hutton's Case (1639) Hutton 131 ; R. v. Gordon (1787) 22 S.T. 175 ; in
later law, when the jurisdiction to punish for contempt was extended, such libels could
be treated as contempts, and dealt with by the summary process of attachment, vol.
iii. 394. Judges of inferior courts can only fine or attach for contempt if the words
are spoken in court, Earl of Lincoln v. Fysher ^(1595) Cro. Eliza. 581 ; Bathhurst v.
Cox (1662) Th. Raym. 68 ; for contemptuous words spoken out of court only surety
for the peace can be required, R. v. Langley (1704) 2 Salk. 697.
13 R. -v. Taylor (1676) 1 Vent. 293 ; cp. Atwood's Case (1618) Cro. Jac. 421 ;
Hawkins, P.C. Bk. i cap. 5 § 6 ; Atwood's Case perhaps shows that the influence of
the jurisdiction of the court of High Commission may have helped to produce this
particular development ; however that may be, it was quite in harmony with the
prevalent views to the relation between Church and State, below 406-410.
340 CRIME AND TORT
That this view of the criminality of seditious words was com-
paratively new law, derived from the practice of the Star
Chamber, is probable from a case of 1558, in which it was held
that slander spoken of the queen was punishable under Edward I.'s
statute of scandalum magnatum.1 However that may be, it is clear
that the offence of uttering seditious words was definitely recog-
nised to be a misdemeanour, punishable by the common law
courts, in the earlier part of the seventeenth century ; and it is
fairly clear that, as in the case of publishing seditious writings,
this broad rule was derived from the practice of the Star Chamber.
It follows, therefore, that the offence was defined as widely by
the common law courts as by the court of Star Chamber. This
is abundantly clear, both from the resolutions of the judges, and
from the numerous cases of seditious libel which came before the
courts in the latter part of the seventeenth century. Thus in
1663 it was resolved'2 that " tho' printing be a trade, and selling
of books also, they must use their trade according to law, and not
abuse it, by printing and selling of books scandalous to the Govern-
ment or tending to sedition." Later in the reign the judges made
use of the Licensing Acts 3 to sharpen the edge of the law. They
resolved that it was illegal to publish anything whatever without
authority, even though it was not scandalous to the government.
It was therefore doubly illegal if that which was published was
scandalous. The law was laid down in this way by Scroggs, C.J.,
in R. v. Carr? and R. v. Harris 5 / and Stephen points out that,
though the House of Commons impeached Scroggs for many illegal
and arbitrary acts, it did not allege that this statement of the law
was wrong.6 This view of the law was applied in the case of
R. v. Barnardiston? who was sentenced "to a monstrous fine of
£1 0,000 for the mere expression of political opinions to a private
friend in a private letter " ; 8 in the case of R. v. Baxter,9 who was
thought in his paraphrase of the New Testament to have reflected
upon the bishops of the church of England ; in the case of R. v.
Johnson™ who issued an address to the Protestants in the army not
1 Oldnoll's Case, Dyer 155a ; for this offence see vol. iii 409-410.
2 Kelyng 23. 3 Vol. vi 372.
4 Dealing with the word "illicite" in the indictment he said, " I must recite
what Mr. Recorder told you of at first, what all the judges of England have declared
under their hands. The words I remember are these : When, by the king's com-
mand, we were to give in our opinion what was to be done in point of regulation of
the press ; we did all subscribe, that to print or publish any news books or pamphlets
of news whatsoever, is illegal ; that it is a manifest intent to the breach of the peace,
and they may be proceeded against by law for an illegal thing. Suppose now that
this thing is not scandalous, what then ? If there had been no reflection in this book
at all, yet it is illicite, and the author ought to be convicted for it," (1680) 7 S.T. at
p. 1127.
5 (1680) 7 S.T. at pp. 929-930. « H.C.L. ii 313. 7 (1684) 9 S.T. 1333.
8 Stephen, H.C.L. ii 314. ' " (1685) 11 S.T. 493. 10(i686) n S.T. 1339.
DEFAMATION AS A CRIME 341
to assist Papists illegally enlisted and commissioned ; and in the
case of The Seven Bisno/>s,1 who were put on their trial for asserting
that the king's declaration of indulgence was illegal, because it was
based on a prerogative to suspend laws which did not exist
These cases are a few illustrations,2 and some are very extreme
illustrations, of the prevailing theory that a person who questioned
the legality or the policy of any act of the government, even in a
respectful manner, committed the offence of seditious libel. The
law was severely and brutally applied, especially by Jeffreys, but
it is difficult to say, in the then state of the law, that these decisions
were wrong.3
The expiration of the Licensing Act in 1 694 4 made it impos-
sible to say that the mere publication of a writing without authority
was illegal. But neither the expiration of that Act, nor the Revolu-
tion, materially altered the law as to what constituted a seditious
libel. This is clear from the ruling of Holt, C. J., in R. v. Tutchin : 5
" they say nothing is a libel but what reflects upon some particular
person. But this is a very strange doctrine to say it is not a libel
reflecting on the government, endeavouring to possess the people
that the government is maladministered by corrupt persons, that
are employed in such or such stations either in the navy or army.
To say that corrupt officers are appointed to administer affairs is
certainly a reflection on the government. If people should not be
called to account for possessing the people with an ill opinion of the
government, no government can subsist. For it is very necessary
for all governments that the people should have a good opinion of
it And nothing can be worse to any government than to en-
deavour to procure animosities as to the management of it ; this
has always been looked upon as a crime, and no government can
be safe without it"
It would seem to follow from this view of the nature of
seditious libel that the crime of seditious libel was the intentional
publication of a writing which reflected on the government ; and,
similarly, that the crime of libel committed against a private person
was the intentional publication of a writing which held him up to
hatred contempt or ridicule. But when criminal proceedings were
taken for libel, it was always alleged, that the accused had published
the libel with a whole series of the worst intentions. He was said
to have acted falsely, seditiously, maliciously, and factiously. As
Stephen has said, " round full mouthed abuse of people who gave
1 (1688) 12 S.T. 183.
2 " The great frequency of prosecutions for political libels and seditious words at
this time appears . . . from a passage in Luttrell's Diary for the year 1684, which
enumerates sixteen trials for those offences between April 30 and November 28 in
that year," Stephen, H.C.L. ii 313.
3 Ibid ii 3I3-3I5- *Vol. vi 375. 9(i7<H) *4 S-T. at p. 1138.
342 CRIME AND TORT
offence to the government was thought natural and proper " ; !
and, as we can see from the indictments for other offences, and
even from the declarations in civil actions, it was customary,
wherever an accusation of any sort of wrong was made, to exhibit
the defendant's conduct in the worst possible light. Naturally the
use of these common forms tended to give rise to the view that the
crime was, not so much the intentional publication of matter bear-
ing the seditious or defamatory meaning alleged by the prosecution,
as its publication with a seditious or malicious intent. This view
of the nature of libel regarded as a criminal offence begins to
appear in the eighteenth century ; and it has had a large influence
on its history. We shall see later, that it has reacted on the views
held as to the nature of libel considered as a tort ; and that the
idea that a malicious intent is a necessary ingredient, both in the
crime and in the tort of defamation, has not been finally got rid of
till the nineteenth century.2 The reasons for its appearance we
must now consider.
In the earlier part of the seventeenth century, when the crime
of libel, and especially of seditious libel, was chiefly dealt with
by the court of Star Chamber, the question whether the offence
consisted of intentionally publishing a seditious or a defamatory
writing, or whether it consisted of intentionally publishing such
writings with a seditious or a malicious intent, was academic.
It was academic because the court decided all questions both of
fact and of law. If the offence consisted of intentionally publishing
a writing with the seditious or defamatory meaning alleged by the
prosecution, it decided the questions whether the writing had
been intentionally published and whether it meant what the pro-
secution alleged that it meant, which were questions of fact ; and
it decided whether what was so published was seditious, defamatory
or otherwise malicious, and so a libel, which was a question of
law. Similarly, if the offence consisted of intentionally publishing
such a writing with a seditious or a malicious intent, it decided as
questions of fact both whether such a writing had been intentionally
published with this seditious or malicious intent, and whether it
meant what the prosecution alleged that it meant ; and, as a
question of law, whether such a writing published with that intent
was in law a libel.
But when the jurisdiction over these libels was taken over by
the courts of common law, the question ceased to be academic.
The courts of common law worked with a jury ; and that involved
an accurate delimitation of the spheres of fact and law. If the
essence of libel was the publication with a seditious defamatory or
otherwise malicious intent, the finding of that intent was matter of
1 H.C.L. ii 354. 2 Below 373-375.
DEFAMATION AS A CRIME 343
fact for the jury. If, on the other hand, its essence was the in-
tentional publication of the document set out in the indictment, all
that the jury was concerned with was the fact of such publication,
and the question whether it bore the seditious or defamatory
meaning alleged by the prosecution.1 Now it is obvious that if the
malicious intent was an essential ingredient in the offence, and if,
therefore, this was a question for the jury, the jury would have far
larger powers than if they were required to decide only the ques-
tion of intentional publication of a document with the meaning
alleged in the indictment. As all these cases of seditious libels
were regarded as matters nearly affecting the state, and as, after
the decision in BushelVs Case,2 the control of the government
over the judges 3 was far closer than its control over juries, it is not
surprising that the courts should have laid it down that the malicious
intent was. not an essential ingredient in the offence, but that the
offence consisted of the intentional publication of a document with
the seditious or defamatory meaning alleged by the prosecution.
It followed that the function of the jury was limited to finding
these two sets of facts ; and that it was for the court to say as a
matter of law whether a writing published with this seditious or
defamatory meaning was a libel.
Thus in the case of R. v. Carr* Scroggs, C. J., directed the jury
that, if they found that the accused had published the book, they must
find him guilty. " If you find him guilty and say what he is
guilty of, we will judge whether the thing imports malice or not.
Sir Francis Winnington hath told you there are some things that
do necessarily imply malice in them. If this thing doth not imply
it, then the judges will go according; to sentence, if it doth;0
so that it concerns not you one farthing, whether malicious or not
malicious — that is plain."6 The same ruling was given, even
more plainly, in the case of R. v. Barnardiston. It was argued
that, as there was no evidence of malice in the publication of the
writing, the accused was entitled to be acquitted. To that the
reply was given that malice cannot be proved by direct evidence;
but that, just as a killing without provocation proved that the killing
was with malice afore thought, so the publication of a seditious writing
proved the malicious intent " In case any person doth write
libels, or publish any expressions which in themselves carry
sedition and faction and ill will towards the government, I cannot
tell well how to express it otherwise in his accusation than by
such words that he did it seditiously factiously and maliciously.
And the proof of the thing itself proves the evil mind it was done
1 Stephen, H.C.L. ii 350 seqq. 3 (1670) Vaughan 135 ; vol. i 345-3^-
3 Vol. vi 503-511. * (1680) 7 S.T. nil.
5 The punctuation has been amended, ' At p. 1128,
344 CRIME AND TORT
with. If then, gentlemen, you believe the defendant, Sir Samuel
Barnardiston, did write and publish these letters, that is proof
enough of the words maliciously, seditiously and factiously laid in
the information." 1 No doubt in the Case of the Seven Bishops the
malicious and seditious intent of the writing was left to the jury.
But we have seen that in that case all the legal talent of the day
was enlisted on the side of the bishops. The bar was altogether
too much for a bench of judges approved by James II. ;2 so that,
as Stephen says, "it is impossible to appeal to that case as a pre-
cedent for any legal proposition whatever." 3, It is true also that
in the case of R. v. Tutchin* some expressions used by Holt, C.J.,
may be taken to mean that the intention with which the writing
was composed was to be left to the jury.5 But probably Stephen
and Lord Mansfield, C.J., are right in thinking that his words do
not bear this construction, and that he meant to lay down the law
substantially as it had been laid down in the seventeenth century.6
At any rate this was the the sense in which the law was under-
stood by Raymond, C.J. In the case of R. v. Francklin1 he said,
" in this information for libel there are three things to be
considered, whereof two by you the jury, and one by the court.
The first thing under your consideration is whether the defendant
Mr. Francklin is guilty of the publication of this Craftsman or not?
The second is, whether the expressions in that letter refer to his
present majesty and his principal officers and ministers of state,
and are applicable to them or not? . . . But then there is a
third thing, to wit, whether these defamatory expressions amount
to a libel or not ? This does not belong to the office of the jury, but
to the office of the Court ; because it is a matter of law, and not
of fact ; . . . and there is redress to be had at another place if
1 (1684) 9 S.T. at p. 1352 ; ibid at p. 1349 Jeffreys said, " The law supplies the
proof if the thing itself speaks malice and sedition. As it is in murder, we say always
in the indictment, he did it by the instigation of the devil : can the jury if they find
the fact, find he did it not by such instigation ? No, that does necessarily attend the
very nature of such an action or thing. So, in informations for offences of this nature,
we say, he did it falsely maliciously and seditiously, which are the formal words ;
but if the nature of the thing necessarily imports malice reproach and scandal to the
government, then needs no proof but of the fact done, the law supplies the rest " ; it was
for this reason, no doubt, that the jury were directed that, if they found the pub-
lication of a document with the meaning alleged by the prosecution, they were directed
to give a general verdict of guilty, as to this see below 345 and n. 1.
2 Vol. vi 511.
3 H.C.L. ii 315-316 — " The question whether or not the king had a dispensing
power was clearly a question of law and not of fact, nevertheless the records were
allowed to go to the jury as evidence that the law was as the bishops said it was.
This carries the powers of the jury even further than they would be carried at the
present day." Stephen should have said suspending power.
4 (1704) 14 S.T. 1095.
5 " Now you are to consider whether these words I have read to you do not tend
to beget an ill opinion of the administration of the government," at p. 1128.
6 H.C.L. ii 317-319. 7 (1731) 17 S.T. at pp. 671-672.
DEFAMATION AS A CRIME 345
either of the parties are not satisfied ; for we are not to invade one
another's province, as is now of late a notion among some people
who ought to know better."
Down to the beginning of the eighteenth century, therefore,
the essence of a libel was the intentional publication of a docu-
ment, bearing the seditious or defamatory meaning alleged by the
prosecution. It followed that all the jury had to do was to find
the fact of publication of a document bearing the meaning alleged
by the prosecution; and that it was for the court to say, as a
matter of law, whether what was published was seditious,
defamatory, or otherwise malicious, and so a libel. This state of
the law harmonised admirably with the current views as to the
relations of rulers to their subjects. But, when those views
changed, it gradually came to be wholly out of touch with current
public opinion. The law as to what amounted to a seditious
libel, having been formed in the period when the ruler was
regarded as the superior of his subjects, assorted badly with the
new view that he was their agent or servant Therefore the
desire for greater freedom of speech than the existing law allowed,
took the technical form of the contention that the seditious,
defamatory or otherwise malicious intention with which a libel
was published, was the essence of the offence, and so a matter of
fact for the jury. In support of this contention much was made
of the fact that the jury were told to find a general verdict of
guilty, when, according to the then received view of the nature of
a libel, their finding amounted merely to a special verdict that a
certain writing with a certain meaning had been published by the
accused, which might be ruled to be perfectly innocent.1 The
concluding sentence from the passage in Raymond, C.J.'s, summing
up in R. v. Francklin cited above, shows that at that date this
contention was beginning to be advanced. The eloquence and
ability with which Erskine advocated it later in the century, pro-
duced a statutory change in the law,2 which has had great effects
on the law of libel whether considered as a crime or as a tort.3
But these developments and their effects upon the modern law
belong, as I have said, to the legal history of the eighteenth
century.
1 Stephen, H.C.L. ii 358 — "They (the judges) tried to make the verdict of
guilty in trials for libel an imperfect special verdict, which would have the effect of
convicting the defendant, even if he was innocent in the opinion of the judge who tried
him, subject to his getting the court to quash his conviction upon a motion in arrest of
judgment " ; note that in R. v. Harris (1680) 7 S.T. at p. 931, Scroggs, C. J., refused
to accept a verdict of guilty of selling only, compelled the jury to give a general
verdict of guilty, and then reprimanded them for trying to qualify their verdict con-
trary to the direction of the Court.
- 32 George III. c. 60 (Fox's Libel Act) ; below 374.
3 Stephen, H.C.L, ii 321 seqq.
346 CRIME AND TORT
On other questions connected with libel considered as a crime
there is as yet but little authority. We hear little, for instance,
of the defence of privilege. That is a topic which will, as we
shall see,1 be developed mainly in connection with defamation con-
sidered as a tort. Similarly, though it was quite clear that the
words or writing complained of must be set out in the indictment
or information, together with any innuendoes necessary to explain
their meaning, it was chiefly in connection with the tort that the
learning as to the function of the innuendo was developed.2 On
both these matters rules were evolved which were later applied to
some or all forms of the criminal offence. On the other hand,
some of the rules evolved in the criminal cases have had an
equally great influence on the development of the tort. But the
reciprocal influence of defamation regarded as a crime, and
defamation regarded as a tort, we shall be better able to appreciate
when we have examined the history of this latter aspect.
Defamation as a Tort
Two sets of influences have gone to the making of our modern
torts of written defamation (libel), and spoken defamation (slander).
Firstly, the rules evolved by the working of the common law
action on the case for defamatory words and writings ; and
secondly, the rules applied by the judges, after the Restoration, to
written as distinct from spoken defamation. To the first of these
influences we can trace a large number of the principal rules
common to both libel and slander : to the second, the original
elaboration of the unfortunate distinction between these two
closely allied torts. In tracing their history I shall deal with (i)
the early history of the common law action for defamation ; (2) the
origin of the difference between libel and slander ; and (3) the
origin of some of the essential characteristics of the torts of libel
and slander.
(1) The early history of the common law action for defama-
tion.
I shall consider this subject under the two following heads : —
(i) the nature and scope of the action ; and (ii) the methods used
by the common law judges in the seventeenth century to dis-
courage this action, and their effects.
(i) The nature and scope of the action.
Of this I have already said something. We have seen that,
because the action was an action on the case, the damage not the
1 Below 375-377. 9 Below 368-369.
DEFAMATION AS A TORT 347
insult was its gist ; and that it followed from this conception of
the action, that, firstly, publication to some third person was essen-
tial, that, secondly, truth was a defence to the action, and that,
thirdly, like other actions for tort, it died with the person.1 We
have seen, too, that the action was applicable both to written and
spoken defamation.2 We shall see that it was not till after the
Restoration, and under the influence of ideas derived from the
criminal offence of libel, that the modern distinction between
libel and slander was introduced.3
The nature of the action, which made it necessary to regard
the resulting damage rather than the insult as the cause of action,
was, as we have seen,4 a cause which helped to prevent the
common law from reaching an adequate conception of the tort of
defamation. But it was not the only cause. If the courts had
placed a liberal interpretation upon the character of the reflections
which they would account as defamatory, and had taken a
rational view as to the kind of damage which could be regarded
as the natural and probable result of defamatory words or writings,
the law might have been placed upon a satisfactory basis. This
fact will, I think, be made clear by the development of the rules
as to the kinds of defamation from which damage could be pre-
sumed— that is, to use the modern expression, as to the words
which are actionable per se ; by the rule that words or writings,
though not actionable per se, were actionable if they caused
damage ; and by the development of the tort of slander of title
and torts analogous thereto.
The rules as to the kinds of defamation which are actionable
per se.
In the developed common law words are actionable per se if
they impute the commission of a criminal offence punishable by
imprisonment, or a contagious disease which would exclude a
person from society, or unfitness for a profession trade or calling,
or misconduct in an office of profit which would lead to dismissal.5
It is clear from March's book that these categories had been
substantially reached by 1647.6
The first of these categories is probably the oldest. It dates
1 Vol. v 206-207. 2 Ibid 207.
3 Below 364-365. * Above 335.
5 Pollock, Torts (12th ed.) 238 ; Clerk and Lindsell, Torts (4th ed.) 555 ; Hals-
bury, Laws of England xviii 607-608.
6 " That all scandalous words which touch or concern a man in his life liberty or
member, or any corporal punishment ; or which scandal a man in his office or place
of trust ; or in his calling or function by which he gains his living ; or which tend to
the slandering of his title or his disinheritance ; or to the loss of his advancement or
preferment, or any other particular damage ; or lastly which charge a man to have
any dangerous infectious disease by reason of which he ought to separate himself, or
to be separated by the law, from the society of men," Actions for Slaunder 10-11,
348 CRIME AND TORT
from the period when the action on the case for words was being
admitted into the common law ; and it seems to have originated
in the days when the courts were trying to distinguish the
defamatory words which would be actionable in the common law
courts, from those which were actionable only in the ecclesiastical
courts. The test hit upon was contained in the question whether
the offence charged was punishable in the common law courts or
in the ecclesiastical courts. If one called another thief or traitor,
the offence charged was punishable in the common law courts,
and therefore an action for such defamation lay in those courts.
If, on the other hand, one called another " heretic and one of the
new learning," or adulterer, the offence charged was " merely
spiritual," and no action lay at common law. But if the offence
charged was punishable by both laws, the plaintiff could bring his
action in either jurisdiction.1 This case presupposes that words
imputing a criminal offence are actionable ; and it seems to me
that, though the court was then merely trying to distinguish
spheres of jurisdiction, and not the qualities which would make
words actionable per se, it was probably the foundation of the
long line of cases which decided that such words were thus
actionable. Conversely, it was the origin of the rule that words
imputing gross acts of immorality were not thus actionable, because
such acts were only cognizable by the ecclesiastical courts — an
injustice 2 which has only partially been remedied by the Slander
of Women Act of 1891.3
The other categories seem to have been developed later, and
are probably based upon the obvious tendency of the imputation
to cause damage. The imputation of a contagious disease seems
to have been confined to statements that the person defamed was
1 Y.B. 27 Hy. VIII. Mich. pi. 4 — see the passage cited vol. iii 411 n. 2. The
principle can, as is pointed out in American Law Rev. vi 593, be traced back to the
rule, which is as old as Bracton, that the accessorium must come under the same
jurisdiction as the principale, see a summary of this argument in Essays, A.A.L.H. iii
460 n. ; it should be noted that the modern rule that the criminal offence imputed
must be one punishable corporally and not merely by fine (see Webb v. Beavan (1883)
11 Q.B.D. 609) is of later growth ; no such distinction is drawn in the Y.B. — indeed it
is not really consistent with the principle there laid down ; and apparently it was held,
in the sixteenth and early seventeenth centuries, that the mere fact that the offence
charged was enquirable in the Leet was sufficient to make it actionable per se, Rolle,
Ab. i 44 Action sitr Case H. pi. 8; but in 1642 Bramston, C.J., and Mallet, J.,
Heath, J , dissenting, laid down the modern rule, March, Actions for Slaunder 59 ; the
reason assigned for this limitation was that if the law were otherwise, " it would be a
great occasion to increase and multiply actions for words."
2 " He (Lord Campbell) laments the unsatisfactory state of our law according to
which the imputation of words, however gross, on an occasion however public, upon
the chastity of a modest matron or a pure virgin, is not actionable without proof that
it has actually produced special temporal damage to her. The only difference of
opinion which I have with my noble and learned friend is that instead of the word
' unsatisfactory,' I should substitute the word ' barbarous,' " Lynch v. Knight (1861)
9 H.L.C. at p. 594 per Lord Brougham,
3 54. 55 Victoria c. 51.
DEFAMATION AS A TORT 349
suffering from leprosy, the plague,1 or syphilis — the accusation of
having contracted the last mentioned disease being much the most
common in the reports. It has been suggested that the in-
clusion in this category of the first two diseases, may have
originated in the old rules which required the removal of a leper
or a person suffering from the plague.2 Whether this be so or
not, it is clear that the imputation of having contracted syphilis
was actionable, partly by reason of the nature of the disease, and
partly by reason of the obvious inference as to the sufferer's moral
character.3 Imputation of unfitness for a profession trade or
calling is obviously calculated to cause temporal loss. There are
long lists of cases in the reports of the sort of opprobrious words
which, if used of clergymen,4 attorneys,5 barristers,6 justices of the
peace,7 stewards of courts,8 doctors,9 traders,10 and artificers,11 were
actionable per se. On these only two remarks need be made.
Firstly, it was very early held that the imputation that a trader
was insolvent or bankrupt was actionable ; 12 and this perhaps
illustrates the larger importance which commercial considerations
were assuming. Secondly, it must be a definite calling recognized
by the law, and not merely a temporary employment, or an
employment of a menial nature, such as a carrier of post letters 13
— a limitation in which we can perhaps trace the mediaeval idea
of the distinctness of the status of persons professing different
callings.14 An imputation of misconduct in an office of profit,
which would lead to dismissal, is obviously an imputation closely
1 Though there is one case turning en an imputation of leprosy (next note) there
seems to be none turning on an imputation of the plague ; and though March, Actions
for Slaunder 105, thinks that such an imputation would be actionable, he cites no
authority
2 This suggestion was made in an article in the American Law Rev. vi 593 ; for a
summary of the argument see Essays, A.A.L.H. iii 461 ; but it may be doubted
whether the mediaeval rules had much influence on the minds of the sixteenth and
seventeenth-century judges ; though there is one case turning on the imputation of
leprosy, Taylor v. Perkins (1607) Cro. Jac. 144, the reason assigned for holding the
words actionable is that such a disease renders the sufferer unfit for society, Rolle, Ab.
i 44 pi. 4 ; but this reason was not applied to other infectious diseases, e.g. smallpox,
see James v. Rutlech (1599) 4 Co. Rep. 17a.
3 " Si home dit al auter que il ad le grand Poxe, action sur le case gist, pur ceo
que ceo est un grand slander et disgrace entant que ceo vient per fornication, et nul
home poet converser ove luy," Rolle, Ab. i 43, H. pi. 3 ; though in another case there
cited, Crittal v. Horner (1619) Hob. 219, it was said that " the slander was not in the
wicked means of getting the disease, but in the odiousness of the infection as a leper."
4 Doctor Sibthorp's Case (1636) W. Jones 366.
5 Rolle, Ab. i 52-54, S. pi. 1-3, 4-9. « Ibid 54_55> s pl l4) l6? 22
7 Ibid 57, S. pi. 31-34. s ibid 56> s pl 2g_
9 Ibid 54, S. pl. 10-12. 10 Ibid 58-63.
11 Ibid 62, V. pl. 27. 12 Ibid 61, V. pl. 16, citing a case of 1597.
13 Bell v. Thatcher (1675) 1 Vent. 275— a doctrine now obsolete as far as applic-
able to the menial character of the calling, and perhaps also so far as applicable to its
temporary character, see Clerk and Lindsell, Torts (4th ed.) 557-558 and the cases
there cited.
14 Vol. iii 385-386 ; vol. iv 402-407.
850 CRIME AND TORT
analogous to those just discussed. On this ground it was said
that, " if I have a bailiff, to whom I commit the buying and selling
of my corn and grain, and give him greater wages in respect of
that trust and employment, and then a man will charge him to
have deceived me in his office by buying and selling by false
measure, to my loss and damage, this will bear an action, for this
discredits him in his means of living : and this kind of offence may
not only be cause to put him out of that service but to be refused
of all others." * On the same ground it was held that a charge of
unchastity made against a duke's chaplain, whereby he lost his
office, was actionable." If, on the other hand, the office was an
honorary office, such as a justice of the peace, though a charge of
corruption, or of opinions showing that he ought not to be trusted,
is actionable, a charge of want only of ability is not.
The last mentioned case savours somewhat of the fine distinc-
tions introduced by the judges who wished to discourage this action.
But it is clear that the broad principles, upon which the courts
adjudged imputations to be actionable per se, were not in themselves
unreasonable. If they had been supplemented by a somewhat
greater latitude in allowing actions where damage could be proved,
the law thus developed would not have been wholly unsatisfactory.
The rule that words or writings, though not actionable per se,
were actionable if they caused damage.
Though the words spoken amounted to a slander punishable
only in the ecclesiastical courts, yet if it could be proved that
temporal loss had been occasioned by them, an action lay. Thus,
if one accused a woman of incontinency, whereby she lost a
marriage which was being arranged, she had a right of action.
" For in this case the ground of the action is temporal, sc. that she
was to be advanced in marriage, and that she was defeated of it,
and the means by which she was defeated was the same slander,
which means tending to such end, shall be tried by the common
law. So if a divine is to be presented to a benefice, and one to
defeat him of it says to the patron 'that he is an heretic, or a
bastard, or that he is excommunicated,' by which the patron re-
fuses to present him . . . and he loses his preferment, he shall
have his action on the case for these slanders tending to such end.
. . . And Popham Chief Justice said that if one says of a woman
that keeps an inn that she has a great infectious disease by which
1 Bray v. Hayne (1615) Hob. 76.
2 Payne v. Beuwmorris (1668) 1 Lev. 248 ; cp. Gallway v. Marshall (1853)
9 Exch. 294.
3 How v. Prinn (1702) 2 Salk. at p. 695 — in that case it was held actionable to
say of a justice of the peace and a deputy lieutenant that he was a Jacobite, and for
bringing in the Prince of Wales and popery to destroy our nation ; cp. Alexander v.
Jenkins [1892] 1 Q.B. 797 ; Booth v. Arnold [1895] 1 Q.B. 571.
DEFAMATION AS A TORT 351
she loses her guests, she shall have an action on the case." ' Simi-
larly, if it was affirmed that a person was a bastard, whereby his
title or possibility of a title to land was negatived, and he lost a
chance of selling his title or possibility of title, he had a right of
action.2 This last illustration comes very near to slander of title
which, as we shall now see, became a separate tort in the course
of the seventeenth century.
The development of the tort of slander of title and torts analogous
thereto.
Cases of the latter part of the sixteenth century established
the principle that, if an owner of land was negotiating for its sale
or other disposition to another person, and a third person made
false statements as to the vendor's title, which prevented the sale
or disposition, the vendor could bring an action on the case and
get damages for the slander.3 This action on the case is clearly
analogous to the ordinary action on the case for defamation ; and
in the fact that it makes no difference whether the slander is oral
or written,4 it preserves the memory of a characteristic which this
ordinary action then possessed.5 Both sprang from the same root ;
but, from an early period, differences between the conditions under
which the action for slander of title and the ordinary action lay
began to be developed. The action for slander of title did not lie
if the third person claimed that he was entitled, though his claim
were false ; 6 and the statement must be made with knowledge of
its falsity.7 As early as 1629 it was recognized that the form and
incidents of the action were different from those of the ordinary
action for defamation 8 — though it was probably not till the latter
half of the century that these differences were universally recog-
nized.9 In substance it was an action for malicious statements as to
1 Davis v. Gardiner (1593) 4 Co. Rep. at f. 17a; Mathew v. Crass (1614) Cro.
Jac. 323.
8 Vaughan v. Ellis (1609) Cro. Jac. 213 ; Elborow v. Allen (1623) ibid 642.
3 Mildmay v. Standish (1585) Cro. Eliza. 34 ; Gerrard v. Dickenson (1591) ibid 196 ;
Tasburgh v. Day (1619) Cro. Jac. 484 ; that it should hinder a pending sale was
essential, see March, Actions for Slaunder 91, citing a dictum of Popham.
4 Ratcliffe v. Evans [1892] 2 Q.B. at p. 527 per Bowen, L.J.
5 Above 347 ; vol. v 207 ; below 364.
6 " If the defendant had affirmed and published that the plaintiff had no right to
the castle and manor of H, but that the herself had right to them, in that case, because
the defendant herself pretends right to them, although in truth she had none, yet no
action lies," Gerrard v. Dickenson (1585) 4 Co. Rep. at f. iSa.
7 Ibid at f. 18b.
8,1 The action is out of the statute 21 Jac. I. c. 16 as well for the time of limitation
as for the costs, for that extends to actions for slanderous words which are intended
to the persons of men, and are common actions, and rather begin of spleen than
otherwise ; but not to this action, which is rare, and not brought without special
damage," Law v. Harwood (1629) Cro. Car. at p. 141.
9 That the differentiation was not always clearly perceived in the earlier half of
the seventeenth century is clear from the passage from March, Actions for Slaunder
10-11, cited above 347 n. 6 ; in fact the rule laid down in Law v. Harwood as to the
application of the statute applied to any action on the case for words, in which special
352 CRIME AND TORT
the title to property, oral or written, made with knowledge of their
falsity, which had caused damage to the plaintiff.1 In the seven-
teenth century the action was extended to other cases in which
damage had been thus caused. Thus in 1662, in the case of
Sheperd v. Wakeman? it was held, after much debate, that a state-
ment made falsely and maliciously of a plaintiff, whereby she lost
a marriage for which she was in treaty, was actionable ; and this
extension is the origin of the general rule that a tort is committed,
if damage is caused by the making of oral or written statements
falsely and maliciously.3 The action given for this tort " is not,"
said Bowen, L.J.,4 " one of libel or of slander, but an action on the
case for damage wilfully and intentionally done without just
occasion or excuse, analogous to an action for slander of title."
This sentence not only accurately describes the nature of the
action, but also indicates the manner in which it had been de-
veloped. It is not an action for libel or slander for, historically,
the action for slander of title and the action on the case for defama-
tion became distinct at a comparatively early date ; and this action
is simply an extension of the action for slander of title.
All these rules seem to me to show that there were possibilities
in this common law action on the case for defamation, which might
have been developed. The different categories of the sorts of
defamation actionable per se were both wide and sensible. The
rule that any other kind of defamation causing temporal loss was
actionable might, if liberally construed, have been made to cover
other kinds of loss besides mere pecuniary loss ; and occasionally
some of the judges seemed inclined to adopt this more liberal view.s
The development of the tort of slander of title and torts analogous
thereto, showed that this common law action on the case was a
vigorous root, which was capable of putting forth various branches.
damage was alleged (Browne v. Gibbons (1702) 1 Salk. 206), so lhat the criterion there
laid down was not wholly conclusive, which may account for the fact that it was
not recognized by March as an independent cause of action.
1 Law v. Harwood (1629) Cro. Car. at p. 141 — " slandering of one's title doth
not import in itself loss, without showing particularly the cause of loss by reason of
the speaking of the words, as that he could not sell or let the said lands " ; and see
above 351 n. 6.
2 (1662) 1 Sid. 79.
3 Clerk and Lindsell, Torts (4th ed.) chap, xviii.
4 Ratcliffe v. Evans [1892] 2 Q.B. at pp. 527-528. For another line of cases where
damage is caused by words spoken to the plaintiff, which, therefore, is analogous
neither to slander nor to slander of title, see Wilkinson v. Downton [1897] 2 Q-B.
57; Janvier v. Sweeney [19 9] 2 K.B. 316.
6 " Williams, Justice. This rule is to be observed, as touching words which are
actionable, that is to say, where the words spoken do tend to the infamy, discredit,
or disgrace of the party, there the words shall be actionable, and this rule was affirmed
by the Court," Smale v. Hammon (1611) 1 Buls. 40; "And Holt, Chief Justice, said
. . . that for his part, wherever words tended to take away a man's reputation he
would encourage actions for them, because so doing would contribute much to the
preservation of the peace," Baker v. Pierce (1704) 6 Mod. at p. 24.
DEFAMATION AS A TORT 353
But, as we shall now see, these possibilities were never realized,
owing to the methods used by the common law judges in the
seventeenth century to discourage this action.
(ii) The methods used by the common law judges in the seven-
teenth century to discourage this action, and their effects.
We have seen that, at the beginning of the seventeenth century,
the flood of these actions of defamation was so overwhelming that
the judges thought it necessary to do all that they could to dis-
courage them.1 The reasons why the action was so popular are
fairly obvious. In the first place, the Star Chamber was doing all
that it could to suppress duelling,2 and therefore those who thought
that their honour had been stained were driven to the law courts.
In the second place, we have seen that litigation of all kinds is
always encouraged when, in a naturally turbulent age, the law
courts are sufficiently strong, and the law which they administer
is sufficiently developed, to provide a remedy for real or fancied
wrongs.3 No doubt some cautious discouragement of these actions
was needed ; but the methods of discouragement devised by the
common law judges, being somewhat hasty and ill advised, did
permanent harm to the development of this common law action,
and therefore to the development of the tort of defamation. These
methods of discouragement can be grouped under two main heads.
(a) A very restrictive interpretation was placed on the categories
of words which the courts allowed to be defamatory per se ; and
(b) equally restrictive rules were laid down as to the persons liable
for the repetition of a slander, as to the kinds of damage for which
the action lay, and as to the kinds of damage which the courts
allowed to be the natural and probable consequence of the
defamation.
(a) Let us take one or two instances of the restrictive inter-
pretation placed on the categories of words which the courts
allowed to be defamatory per se.
In the case of words which imported the commission of a
criminal offence punishable by imprisonment, the words were
strictly construed to see if they charged the plaintiff with acts
which legally amounted to such an offence. Thus, if A said
of B, " B seeks my life," the words were not actionable, firstly
1 Vol. v 206 ; March, Actions for Slaunder at pp. 2-3, writing in 1647, represents
the current professional opinion when, after remarking on the frequency of these
actions, he says, " and it were to be wished . . . that the greatest part of them were
suppressed, that words only of brangle heat and choler might not be so much as
mentioned in those high and honourable courts of justice. For I profess for my part
that I judge of them as a great dishonour to the law, and the professors thereof;
especially when I consider that they are used only as instruments to promote the
malices and vent the spleen of private jars and discontents among men."
2 Ibid 199-201. 3 Vol. i 506 and n. 6.
VOL. VIII.— 23
354 CRIME AND TORT
because, "he may seek his life lawfully upon just cause," and
secondly, "seeking of his life is too general and for seeking
tantum no punishment is inflicted by the law."1 To say that
a man was detected for perjury in the Star Chamber was not
actionable, " for an honest man may be detected but not con-
victed ; and every one who has a bill of perjury exhibited against
him there is detected." 2 To accuse a man of having burnt a barn
was held not to be actionable, as this was no felony if the barn
was neither parcel of a mansion house nor full of corn.3 To impute
a mere intention to commit a crime was held not to be actionable,
" for the purpose and intent of a man without act, is not punish-
able by law"; and that was so even though the act charged
might be punished in the Star Chamber, "for that is by the
absolute power of the Court and not by the ordinary course of
the law." 4 Similarly, to accuse a man of an impossible crime, as
in the well-known case where A said of B, that B, while church-
warden, had stolen the bell-rope, was not actionable.5 Fine
distinctions were drawn between cases where subsequent words
explained a criminal charge, so as to make it impossible, and
cases when they merely added an immaterial detail, so as to leave
it possible. To say " thou art a thief and hast stolen my trees,"
was actionable, for the last words were merely an addition ; 6 but
to say " thou art a thief for thou hast stolen my trees," was
not actionable, for the last words, being explanatory, showed
that no crime had been committed.7 The absurdity of applying
such distinctions to angry words spoken in heat was pointed out
by Holt, C.J.,8 and is obvious. As Sir F. Pollock has said,9 it
followed that " minute and copious vituperation was safer than
terms of general reproach, such as ' thief,' inasmuch as a lay-
man who enters on details will probably make some impossible
combination."
The same principles were applied to the other categories of
words actionable per se. Thus to say of a man that he was full
of the pox was not actionable, because that might mean merely
1 Hext v. Yeomans (1585) 4 Co. Rep. 15b.
2 Weaver v. Cariden (1595) 4 Co. Rep. 16a.
3 Barham v. Nethersal (1602) 4 Co. Rep. 20a.
4 Eaton v. Allen (1598) 4 Co. Rep. 16b.
5 Jackson v. Adams (1835) 2 Bing. N.C. 402.
6 Rolle, Ab. i 51, R. pi. 1. 7 Ibid R. pi. 2.
8 " The opinions of later times have been in many instances different from those
of former days in relation to words, for formerly there has been a difference taken
between saying, ' thou art a thief and hast stolen my wood,' and ' thou art a thief for
thou hast stolen my wood ' ; and judgments have gone both ways ; but later opinions
make no difference, if the words be spoke at the same time. And these are scrambling
things that have gone backwards and forwards," Baker v. Pierce (1704) 6 Mod. at
pp. 23-24.
9 Torts (12th ed.) 242.
DEFAMATION AS A TORT 355
smallpox.1 More liberality was shown in the case of words
which imputed dishonesty or incapacity in a trade or profession ;
but even here the distinctions ran very fine. Thus to call an
attorney corrupt was actionable,2 but to call him usurer, or to say
that, being an executor, he would not perform the will, was not
actionable.3 To call a trader bankrupt was actionable ; 4 but,
according to some, to say that he was a bankruptly knave was
not, as the words did not mean that he was a bankrupt, but only
that he was like a bankrupt5 As the words must cast an im-
putation on the plaintiff of unfitness for his particular trade, words
which would be defamatory of one person might not be defamatory
of another. Thus to call an attorney or a justice of the peace a
common barrator was actionable ; 6 but it was not actionable to
apply the same term to a common carrier.7 Obviously a man
who knew the trade or profession of the person whom he wished
to abuse, could, if he chose his words with care, indulge with
impunity in a considerable latitude of vituperation.
The application of these principles was partly the cause, and
partly the effect, of the general doctrine that in these actions the
words complained of must be construed, not in their natural sense,
but, whenever possible, in "mitiore sensu." That is, they must
be held not to be defamatory if a non-defamatory sense could be
twisted out of them. This principle is taken for granted by
Coke ; 8 and, if it had been limited to the case where the words
were really of doubtful meaning, it would have been unobjection-
able. The rule was, it is true, stated in this way by Coke,9
Rolle,10 and March,11 in the first half of the seventeenth century.
But the judges, in their desire to discourage these actions, did not
so limit it. They examined the words in the same manner as
1 James v. Rutledge (1599) Moore 573 ; S.C. 4 Co. Rep. 17a.
3 Birchley's Case (1585) 4 Co. Rep. 16a. 3 Ibid.
4 Kempe's Case (1553) Dyer 72b ; 4 Co. Rep. 19a.
5 Rolle, Ab. i 47 I. pi. 3, citing a case of 1608 ; Selby v. Carrier (1615) Cro. Jac.
345 ; sed contra 4 Co. Rep. 19a, if the words imply an act done and not merely an
inclination to do an act, and with this view the Court agreed in Booth v. Scale (1663)
1 Sid. 103.
6 Rolle, Ab. i 54, S. pi. 15. » Ibid j 5g> v. pi. 3.
8 " And it was said quod sensus verborum est duplex, scil. mitis et asper ; et
verba semper accipienda sunt in mitiori sensu," Cromwell's Case (1578-81) 4 Co. Rep.
at f. 13a ; ibid at fF. 15b, 17b, 20a.
* " Wc will not give more favour unto actions upon the case foT words than of
necessity we ought to do, -.tliere the words are not apparently scandalous," Crofts v.
Brown (1617) 3 Buls. 167.
10 " Lou les parols sont dubious et poient receiver un double interpretacion lun voie
que ils serront actionable et l'autre nemy, ils serront prise en mitiori sensu," Rolle,
Ab. i 71, Z. pi. 1.
11 1« \\re have a rule that words, if they admit of a double construction, shall
always be taken in the best sense for him that speaks them. . . . This I say the law
doth when the words are amphibolus, but if the words are clearly actionable, in such
case the law will never aid a man," Actions for Slaunder 5.
356 CRIME AND TORT
they were accustomed to examine a writ or a pleading, in order
to discover, if possible, a non-defamatory sense ; and, as they
were experts in this art of critically examining words, it was not
difficult to find a non-defamatory sense in the most insulting
words. Indeed, it would seem that the result of an action often
depended on the comparative ingenuity of the counsel in suggest-
ing interpretations of the words used. Two instances will suffice.
"If one man says of another, 'Thou art a prigging pilfering
merchant and hast pilfered away my corn and my goods from my
wife and my servants and this I will prove,' no action lies for that
(as it seems), nor does it appear that he intended that he had
taken these goods feloniously, and therefore the words shall be
taken in mitori sensu." 1 " If a man says of A, 'he was a pick-
pocket, and had picked my pocket, and took 12s. of money out of
my pocket,' 2 no action lies for these words, because it might be
done merely as a trespass or in jest and not feloniously."3 A
long lins of similar cases are reported in the books ; and in spite
of attempts in the latter part of the seventeenth and in the
eighteenth centuries to restrict this vicious system of interpre-
tation,4 and to put the law upon a more sensible basis, it still
continued. " It is only in comparatively recent times that the
perverse subtlety of special pleading, by which this branch of the
law was specially encumbered, has altogether disappeared" ; 5 for,
as we shall see,6 it is not till comparatively recent times that the
Courts have ceased to look at the cases in order to come to a
conclusion as to whether the words used are or are not defamatory.
We shall now see that the effect of these principles was
aggravated by equally restrictive rules as to the persons liable for
the repetition of a slander, as to the kinds of damage for which the
action lay, and as to the kinds of damage which the courts allowed
to be the natural and probable consequence of the defamation.
1 Rolle, Ab. i 73, Z. pi. 14.
2 Ibid Z. pi. 20 ; and see also below 360. 3 Ibid.
4 " And tho' in the old books the rule was to take the words in mitiori sensu, yet
by Holt, C.J., they would give no favour to words, and should give satisfaction to
them whose reputation is hurt ; and would take words in a common sense according
to the vulgar intendment of the bystanders. The rule de mitiori sensu is to be
understood when the words in their natural import are doubtful, and equally to be
understood in the one sense as in the other," Somers v. House (1694) Holt 39; "I
have heard my Lord Hale and Justice Twisden say that they knew no set rule for
actions for words, "but that all words stood upon their own feet," Baker v. Pierce
(1704) 6 Mod. at p. 24 per Holt, C.J. ; " men's tongues growing more virulent, and
irreparable damage arising from words, it has been by experience found, that unless
men can get satisfaction by law, they will be apt to take it themselves. The rule
therefore that has now prevailed is, that words are to be taken in that sense that is
most natural and obvious, and in which those to whom they are spoken will be sure
to understand them," Harrison v. Thornborough (1714) 10 Mod. at p. 198; cp.
Carpenter v. Tarrent (1737) Cas. t. Hardwicke per Lord Hardwicke, C.J.
s Clerk and Lindsell, Torts (4th ed.) 563.
6 Below 358-359-
DEFAMATION AS A TORT 357
(J>) One effect of the line of cases, which has just been dis-
cussed, was to make it unnecessary, in many instances, to consider
whether or not the plaintiff had suffered damage. The words
were held not to be defamatory, and that was the end of the case.1
But even if the plaintiff could prove that he had been defamed and
had suffered damage, his difficulties were not at an end. Firstly,
it was laid down by Coke in the Earl of Northampton s Case' that,
"if J.S. publish that he hath heard J.N. say that J.G. was a traitor
or thief, in an action of the case, if the truth be such, he may
justify. But if J.S. publish that he hath heard generally without
a certain author, that J.G. was a traitor or thief, there an action
sur le case lieth against J.S. for this, that he hath not given to the
party grieved any cause of action against any, but against himself
who published the words, although that in truth he might hear
them." This was long regarded as settled law,3 and was not over-
ruled till the beginning of the nineteenth century.4 It is not
till then that we begin to get the development of the modern rules
as to when a person is liable for slander, when damage has been
caused by its repetition by other persons.5 Secondly, the damage
must be ascertainable temporal damage. Thus it was held in
16696 that to say of a virgin of good fame, "she was with child
by Simons," whereby she lost her parent's favour, was not action-
able. This rule was no doubt due in part to the rule that defama-
tion, which alleged offences cognizable only in the ecclesiastical
courts, and unaccompanied by temporal damage, was not
actionable at common law." But, as the case of Lynch v. Knight*
in 1 86 1 shows, the rule long worked hardship; and it has only
partially been remedied by the Slander of Women Act 1891,9 in
the case of the one particular class of slander in which the rule
worked the greatest hardship. Moreover, the existence of the
damage must be strictly proved — " when the speaking of the words
might be a damage to the plaintiff, yet if the ground of that
damnification do not sufficiently appear by the record, the action
1 Bramston, C.J., once went so far as to say that, if the words did not import a
scandal in themselves, the averment of a particular damage could not make them
actionable ; but no one else seems to have taken this extreme view, March, Actions for
Slaunder 102.
2 (1613) 12 Co. Rep. at p. 134.
3 See Davis v. Lewis (1796) 7 T.R. 17.
4 McPherson v. Daniels (1829) 10 B. and C. 263.
5 See Ratcliffe v. Evans [1892] 2 Q.B. at p. 530, where Bowen, L.J., lays it down
that, *' Verbal defamatory statements may be intended to be repeated, or may be
uttered under such circumstances that their repetition follows in the ordinary course of
things from their original utterance. Except in such cases, the law does not allow the
plaintiff to recover damages which flow, not from the original slander, but from its un-
authorised repetition."
11 Barnes v. Bruddel 1 Lev. 261. » Above 348
8 9 H.L.C. 577- 9 54, 55 Victoria c. 51.
358 CRIME AND TORT
will not lie." 1 Thirdly, we have seen that, though the defamation
imputed only an offence cognizable in the ecclesiastical courts, yet
if it was followed by damage, an action lay — e.g. the imputation
of unchastity to a woman whereby she lost her marriage."
Similarly it was held that, where the plaintiff's shepherd falsely
and maliciously told the bailiff of the manor that one of the plaintiff's
sheep was an estray, whereupon the bailiff seized it, this damage was
attributable to these words, and made them actionable.3 But it
was laid down in Vicars v. Wilcocks 4 that, if in consequence of the
words spoken, another does an act which would be illegal, even
assuming that the words were true, no action lay. it is probable
that this decision was based on somewhat the same ground as the
decision in the Earl of Northampton's Case}1 Just as in that case
the person slandered was only allowed to recover against the
originator of the slander, and not against the person who had
repeated it, so, according to this decision, he was only allowed to
recover against the man who had done the illegal act which had
damaged him, and not against the person who had uttered the
slander, which had caused the illegal act to be done. The law in
the one case allowed an action against the originator of the slander,
and in the other case against the person who had done the illegal
act. It refused to allow any other action, and so the slanderer
went free. But it is probable that this hard and fast rule is as
obsolete as the rule laid down in the Earl of Northampton s Case.6
The true test is, as. Sir F. Pollock has pointed out,7 not whether
the act done was legal or illegal, but whether the act, whether
legal or illegal, was the natural and probable consequence of the
slander.
All these evil results, which flowed from the attempts of the
judges to discourage these actions for defamation, were aggravated
by the accumulation of cases in the reports, in which the courts
had construed this or that specimen of abuse to be or not to be
defamatory. We have seen that the practice of reporting cases,
which turned on the construction of particular documents, tended
1 March, Actions for Slaunder 49 ; a fortiori if it appeared by the record that there
was no damage — " if one say of a woman that ' she hath murdered her husband ' ; and
she and her husband bring the action, it will not lie, because it doth appear by the
record that the slander is not prejudicial," ibid., citing a case of 1608.
- Above 350. 3 Newman v. Zachary (1647) Aleyn 3.
4 (1806) 8 East 1 — " the special damage must be the legal and natural consequence
of the words spoken, otherwise it did not sustain the declaration : and here it was an
illegal consequence ; a mere wrongful act of the master ; for which the defendant was
no more answerable, than if in consequence of the words, other persons had afterwards
assembled and seized the plaintiff, and thrown him into a horsepond by way of punish-
ment for his supposed transgression," per Lord Ellenborough, C.J.
5 (1613) 12 Co. Rep. 132.
6 See the remarks of Lord Wensleydale in Lynch v. Knight (1861) 9 H.L.C. at
p. 600.
7 Torts (12th ed.) 240.
DEFAMATION AS A TORT 359
to create all sorts of arbitrary rules for the interpretation of these
documents ; that the status of these rules was often uncertain — it
was not clear whether they were rules of law, or rules of construc-
tion, or merely inferences of fact as to the interpretation ot the
particular document before the court ; and that the application of
these rules often tended to frustrate the intentions of the parties to
these documents.1 Similar evil effects followed these numerous
reports of actions for defamatory words. A very cursory glance
at Rolle's and the later Abridgments, will show that this practice
of piling up cases, which turned on the construction of particular
words, had a disastrous effect on this branch of the law. Rolle
tried to reduce them to some sort of order by grouping them under
general headings. Thus he has a long list of cases turning on the
imputation of perjury ; on more general words of abuse ; on words
which do not impute felony but only minor offences ; on adjective
interrogative conditional and disjunctive words, and words in the
past tense ; on words which are not directly affirmative ; on words
imputing a criminal intention ; on cases in which later words will
explain and modify the effect of former words ; on words imputing
disgraceful conduct in one's profession office or trade ; on words
which will support an action in spite of their uncertainty ; on cases
where the words will be taken in mitiore sensu ; on cases where
the action lies though the words are repugnant, though the person
slandered is not directly described, or though the charge is not
quite precisely made ; on cases in which an averment would, and
cases in which it would not, render words actionable. A study of
those cases makes it quite obvious that so many and such fine dis-
tinctions were drawn by the judges as to the actionable quality of
words, that it was a mere lottery whether or no any particular
words would be held to be defamatory ; and although, as we have
seen, protests were made in the late seventeenth and the eighteenth
centuries against this vicious system of citing cases to prove that
this or that set of words were or were not defamatory,2 it was not
till modern times that it was eliminated, by the application to
words and writings, which were the subjects of actions for defama-
tion, of the rule that the meaning of all words and documents is a
question of fact to be deduced from the words and the documents
themselves.3
The best proof of the absurd results of this practice is the
cases themselves ; and as illustrations I will take one or two cases
from Croke's reports of James I.'s reign.
In the following cases the words were held to be defamatory : —
Words spoken of a justice of the peace, stating that he had
1 Vol. vii. 392-394. 2 Above 356 n. 4.
3 Above 356 ; see Lord Halsbury's Laws of England xviii 639 n. (t).
360 CRIME AND TORT
instigated others to attempt to murder the speaker, were held to be
actionable by three judges against two.1 Words spoken of a
commissioner to examine witnesses, imputing that he had taken
bribes to favour one of the parties, were held actionable by four
judges against one.2 The statement that a justice of the peace
was " a partial justice " was held actionable by the two judges who
tried the case.3 To accuse a man of having robbed the church,
and stolen lead from it, was held actionable by three judges against
two ; but no action would have lain if the words had been " thou
hast robbed the church for thou hast stolen lead," because there
could be no larceny of the lead which was fixed to the freehold.4
In the following cases the words were held not to be de-
famatory : — It was held by three judges to two that, to say of a
magistrate that " he is a rascally villain, and keeps a company of
thieves and traitors to do mischief," was not actionable ; 5 and
again by three judges to two that it was not actionable to say
' ' thou art a thievish knave and hath stolen my wood," as " stealing
of wood may be intended growing wood, and then it is not any
felony, and so no cause of action." 6 On the same principle it
was held not actionable to charge a man with having stolen iron
bars from windows, or corn from a field.7 But, perhaps, the most
absurd of all these cases is the following:8 the words were, "Sir
Thomas Holt struck his cook on the head with a cleaver, and
cleaved his head ; the one part lay on the one shoulder and the
other on the other" — as clear an accusation of homicide, one
could think, as could be desired. But "it was moved in arrest of
judgment that these words were not actionable, for it is not averred
that the cook was killed, but argumentative. The Court was of
that opinion, Fleming, Chief Justice, and Williams absentibus ; for
slander ought to be direct, against which there may not be any
intendment: but here notwithstanding such wounding the party
may yet be living ; and it is then but trespass."
It is clear that an action which had given rise to such a body
of law as this, gave no adequate remedy 'for defamation. No
doubt in the early part of the seventeenth century its inadequacy
was mitigated by the fact that proceedings might be taken in the
court of Star Chamber.9 But, when the Star Chamber was
abolished, a new and better remedy was imperatively needed.
We shall now see that it was mainly for this reason that, after the
Restoration, the courts began to treat the tort of libel in a
different way from the tort of slander. The old unsatisfactory law
1 Harper v. Beamond (1605) Cro. Jac. 56.
2 Moor v. Foster (1606) ibid 65. s Kemp v. Housgoe (1606) ibid 90.
4 Benson v. Morley (1608) ibid 153. 6 Hollis v. Briscow (1605) ibid. 58.
6 Robins v. Hildredon (1608) ibid 65. 7 Powell v. Hutchins (1609) ibid 204.
8 Holt v. Astgrigg (1608) ibid 184. 9 Vol. v. 208-212.
DEFAMATION AS A TORT 361
was still applied to spoken defamation ; but some very different
rules were applied to defamation which was written. These
rules eventually reacted on the tort of slander, and effected some
improvement in the law ; but the unfortunate distinction between
written and spoken defamation, due ultimately to the treatment
of the action on the case by the judges of the early years of the
seventeenth century, and immediately to the remedy for that
treatment adopted by the judges of the latter part of that century,
still remains to trouble the law.
(2) The origin of the difference between libel and slander.
The abolition of the jurisdiction of the court of Star Chamber,
and the absorption of some parts of it by the common law courts
after the Restoration, created a difficult problem in connection
with several wrongs or offences which hover on the border line
between crime and tort. This problem can be stated as follows :
There were several of these wrongs or offences, notably defama-
tion conspiracy and maintenance, as to which the common law,
because it had provided a civil or a criminal remedy, had, in the
mediaeval period and later, acquired a certain number of rules.1
But, during the sixteenth and seventeenth centuries, the law as to
these wrongs or offences had been further developed by the court
of Star Chamber ; and this development had been concerned
mainly with their criminal aspect.2 It followed that, when the com-
mon law courts took over these parts of the jurisdiction of the Star
Chamber, it took over the law relating to the wrongs or offences
which had been there developed. They became common law mis-
demeanours ; and the definition of these misdemeanours owed
something both to the common law rules and to the rules of the
Star Chamber. How much they owed to these two sets of in-
fluences varied in each case. In the case of the criminal aspect of
defamation 3 and conspiracy4 the debt owed to the Star Chamber was
large, and that owed to the common law was comparatively small.
In the case of the civil aspect of defamation, and of the civil and
criminal aspect of maintenance,5 the influence of common law rules
was more prominent ; and we shall see that, for a considerable
period, the same thing can be said of the civil aspect of conspiracy.6
Now, when all these three wrongs or offences came to be recog-
nized as common law misdemeanours, two questions naturally
arose. Firstly, could all these criminal offences be regarded as
torts ? and, if so, were the incidents of these offences, regarded as
1 For the mediaeval rules as to conspiracy and maintenance see vol. iii 395-399,
401-407 ; for the rules as to defamation see vol. iii 409-411 ; above 335.
2 Vol. v. 201-205, 208-212.
3 Above 336, 338 seqq. * Below 379-384.
5 Below 397-400. « Below 392-393.
362 CRIME AND TORT
torts, in all respects the same as the incidents of these offences re-
garded as crimes ? Secondly, were they torts like trespass, which
would give rise to an action for nominal damages ? or were they
torts like negligence, which would only give rise to an action if the
plaintiff could show that he had suffered damage? In other words,
was the act per se tortious, or was it only tortious if accompanied
by damage ?
These problems were raised by the historical development of
the law on these subjects. But there is no reason to think that
the judges realized their precise nature ; and it is certain that they
did not try to solve them on any general or theoretical grounds.
As must necessarily happen under a system of case law, they de-
cided the cases as they arose in the manner which seemed to them
most expedient, and for reasons which seemed sufficient to dispose
of the case in hand. The result has been that they have left
undecided many points which, in later years, have given rise to
much difference of professional and judicial opinion. Controversy
upon these points has often not been illuminating, and the decisions
arrived at have not always been convincing, mainly because the
historical causes, and therefore the real nature of the problem, have
not been clearly realized — a fact of which the conflicting decisions
in the case of Neville v. London Express Newspaper Ltd.} and the
long unsettled question of the nature of the tort of conspiracy,2 are
leading illustrations. But, even if the judges of the seventeenth
century had realized the true nature of the problem, and had
approached it from its theoretical side, it would have been found
difficult to solve, because many good reasons could be given for
opposite solutions.
(i) Could all those criminal offences be regarded as torts ? and,
if so, were the incidents of these offences, regarded as torts, in all
respects the same as the incidents of these offences regarded as
crimes ?
In favour of the view that all these offences should be
regarded as torts, it could be argued that they were all treated
by the law as criminal offences ; and that, if an act so treated
caused damage to another, that other ought to have an action for
damages. Moreover, it could be argued that this was the right
solution on historical grounds, because, firstly, the common and
statute law had recognized, in the case of conspiracy and mainten-
ance, that these offences could give rise to proceedings in the
nature of trespass, which, like trespass, were as much civil in their
nature as criminal ; 3 and, secondly, because the court of Star
Chamber sometimes gave damages to the person injured by al!
1 [1919] A.C. 368. 2 Below 394-397.
a Vol. iii 397-398» 4°4-4°7-
DEFAMATION AS A TORT 363
these offences.1 On the other hand, it might be said that the mere
fact that the law chose, from motives of public policy, to treat a
given course of conduct as a criminal offence, did not necessarily
prove that the law would regard it as a tort ; and that, even admitting
that these wrongful acts should be regarded as torts if they caused
damage to another, it did not follow that the tort would neces-
sarily have the same incidents as the criminal offence which had
been developed by the court of Star Chamber. This truth was
realized in the case of defamation, as the differences between the
tort and the crime of libel testify.2 The failure to realize it in the
case of maintenance is at the bottom of the inconsistent opinions
in the case of Neville v, London Express Newspaper Ltd. ; 3 and,
as we shall see, it has something to do with the obscurity which
long hung about the question whether there is such a thing as the
tort of conspiracy.4
(ii) Were these torts torts like trespass, which would give rise
to an action for nominal damages ? or were they torts like
negligence, which would only give rise to an action if the plaintiff
could show that he had suffered damage?
If these wrongs could be regarded as torts, there was something
to be said in favour of the view that they should be so regarded,
whether damage resulted or not, so that they would give rise
to a right of action for nominal damages, because from them
general damage could be presumed. They were obvious abuses of
so serious a kind that the state had deemed it expedient to treat
them as crimes. Why should they not be regarded as involv-
ing a tort of this character ? It might be argued that they should
be regarded as involving a tort of this character, just as larceny
involves a trespass. On the other hand, it might be said that the
form of action by which these torts were remedied was Case ; and
that that necessarily involved the conclusion that they were only
torts if the plaintiff could show that he had suffered damage. No
doubt this is a technical reason ; but, in support of it, it might be
argued that, though it might be expedient to treat these wrongs
as crimes, there was no reason to treat them as torts unless a
plaintiff could show that he had suffered damage — a line of
reasoning which is fully admitted in the rule, laid down at the end
of this period, that a public nuisance will not give rise to an
action in tort in the absence of special damage.5 We shall see
that this line of reasoning has been followed in the case of the
torts of conspiracy fi and maintenance.7 On the other hand, in the
1 Vol. v 211-212. 2 Above 339.
3 tI9I9] A.C. 368 ; below 400-402. * Below 392-397.
5 Iveson v. Moore (1700) 1 Ld. Raym. 486.
6 Below 394, 396-397. » Below 400.
364 CRIME AND TORT
case of written as opposed to spoken defamation, the first line of
reasoning was followed. We shall see that in the case of libel, as
distinct from slander, the courts, after the Restoration, held that
no special damage need be shown to ground the action1 — that
libel was a wrongful act from which damage could be presumed.
If we took a narrow historical view of the development of
these torts, we might wonder at the conclusion thus reached. It
might be said that the early common law remedies, both in the
case of conspiracy and maintenance, showed that, being wrongs in
the nature of trespass, they should have been regarded as torts of
the nature of trespass, that is as violations of absolute rights ;
while defamation, spoken or written, being redressible at common
law only by an action on the case, should not have been regarded
as giving rise to an action in tort in the absence of special damage.
But to reason in this way would be to ignore, both the manner in
which the Star Chamber had developed all these wrongs in the
sixteenth century, and the new conditions which the problem had,
in consequence, assumed after the Restoration. The judges, as I
have already said, were not fully conscious of the problem in all
its bearings ; but, when faced with the question whether, in any
particular case, written defamation, or conspiracy, or maintenance
should give rise to an action in tort, they answered it in a manner
seemed to them to be most expedient.
Now in considering the question whether written defamation
should give rise to an action in tort without proof of special
damage, the judges had before them the following three facts :
firstly, such defamation was a crime ; secondly, the development
of the action on the case had made this action a wholly unsatis-
factory remedy for the tort of defamation ; thirdly, if the prevalent
habit of duelling was to be suppressed, some better remedy must
be provided. We know that the last two considerations had in-
duced them to try to improve the conditions under which the
action on the case lay ; 2 and, though there is no direct evidence
as to their reasons for deciding that written, unlike spoken defama-
tion, would give rise to an action without proof of special damage,
I cannot help thinking that it was the combined weight of all
these three reasons which induced them to reform the law by
drawing this distinction. However that may be, the cases make
it quite clear that this distinction was drawn in the latter half of
the sevententh century.
The earliest decision is the case of King v. Lake in 167c3
Hale, C.B., held that, "although general words spoken once
without writing or publishing them would not be actionable ; yet
1 Below 365. 2 Above 356 n. 4.
3 Hardres 470.
DEFAMATION AS A TORT 365
here, they being writ and published, which contains more malice,
than if they had been once spoken, they are actionable " ; and this
decision was affirmed on a writ of error.1 It was followed in 1683
in the case of Austin v. Culpepper* In the eighteenth century
these decisions were followed in the cases of Harntan v. Delany,3
and Villers v. Monsley* though one of the judges in the latter case
seemed to think that the authority for the distinction between
written and spoken defamation was somewhat slender.5 The rule
was finally settled in 181 2, after a full consideration of the cases,
by the decision of the Exchequer Chamber in the case of Thorley
v. Kerry.6 Mansfield, C.J., held with regret that the distinction
between spoken and written defamation, though indefensible in
principle," was too well established to be repudiated.
It cannot be doubted that this decision of the judges of the
latter part of the seventeenth century to treat libel as an inde-
pendent tort, for which a plaintiff could recover damages without
the need for proving special damage, had the results which were
intended. In the first place, though the damage and not the in-
sult was still the gist of the action, the fact that the publication of
written defamation was regarded as a wrong to reputation from
which damage could be presumed, naturally tended to make the
insult a more prominent element in the tort than the damage ; and
so tended to put the tort upon a more satisfactory footing.8 In the
second place, once the libel was proved, the defendant was shown
to be a wrongdoer, and the plaintiff could recover damages because
the commission of such a wrong implies damage. There was no
need, as in the case of slander, to allege the special damage suffered
with particularity, and prove that it had been suffered. This dif-
ference between an act which was in itself wrongful, and an act
which was only wrongful if it caused damage, was recognized in
the case of Iveson v. Moore in 1 700 ; 9 and it gave rise to one of
the most beneficial effects of thus treating libel as a wrong in itself
— the emancipation of the court from that long series of cases, in
which the question whether or not temporal damage could be said
to have flowed from the words spoken, had been discussed with so
much misplaced subtlety. In the third place, it followed also that
1 Skinner at p. 124.
2 " And t'was said that to say of any body that he is a dishonest man is not
actionable, but to publish so, or to put it up upon posts is actionable," Skin, at p. 124 ;
S.C. 2 Show. 313.
3 (1731) Fitz-Gibbon at p. 254. 4(i76g) 2 Wils. 403.
s " 1 repeat it that I wish there was some more solemn determination that the
writing and publishing anything which tends to make a man ridiculous or infamous
ought to be punished," ibid at p. 404 per Bathurst, J.
15 4 Taunt. 355. 7 Below 366. 8 Above 335.
9 1 Ld. Raym. 486 at p. 490 per Gould, J. ; cp. Ratcliffe v. Evans [1892] 2 Q.B.
at pp. 528-532 per Bowen, L.J.
366 CRIME AND TORT
the courts were also relieved from considering whether the case
fell within one of the categories of words actionable per se. This
meant that another of the longest and most unsatisfactory series
of these older decisions on the action on the case could be dis-
regarded. For these three reasons, therefore, the invention of
the separate tort of libel for the first time put the most important
branch of the law of defamation on a satisfactory footing ; and it
cannot be doubted that the principles applied to this tort helped
the judges to improve the tort of slander, by enabling them to dis-
regard many of those unprofitable rules, such as the doctrine of the
mitior sensus,1 which their predecessors had laid down in order to
discourage the action on the case.
At the same time this improvement had been effected at the
expense of imposing upon the law the unfortunate distinction be-
tween the torts of libel and slander. At the latter part of the
seventeenth century this may well have seemed not too high a
price to pay for the rescue of the tort of defamation from the
wholly unsatisfactory condition to which it had sunk. But, when
the law had been reformed, and some of the more rational rules of
libel were being applied to slander ; when the real reasons for the
decision of the judges to treat libel as an independent tort had
been forgotten, and unsatisfying a priori reasons were being in-
vented ; 2 the absurdity of the distinction began to appear. How
completely the original reason for the establishment of the distinc-
tion had been forgotton appears from Mansfield, C.J.'s judgment
in Thorley v. Kerry.'6 He would have liked to assimilate libel to
slander, by ruling that "no action could be maintained for written
scandal which could not be maintained for words if they had been
spoken." 4 This would no doubt have got rid of the separation of
the two torts ; but it would have got rid of it at the expense of
undoing most of the good effects of the recognition of libel as a
separate tort, and of throwing the law back into the state in
which it was before that recognition had taken place. The
converse solution would have been infinitely preferable. Fortun-
ately the current of authority was too strong to be overruled in
this way ; 5 and so it may be said that the case affords a striking
1 Above 355.
3 See Thorley v. Kerry (1812) 4 Taunt, at p. 365 where some of these arguments
are exposed by Mansfield, C.J.
3 (1812) 4 Taunt. 355. 4 Ibid at p. 365.
5 «' These are the arguments which prevail on my mind to repudiate the distinc-
tion between written and spoken scandal ; but that distinction has been established
by some of the greatest names known to the law, Lord Hardwicke, Hale, I believe,
Holt, C.J., and others . . . I do not now recapitulate the cases, but we cannot, in
opposition to them, venture to lay down at this day, that no action can be maintained
for any words written, for which an action could not be maintained if they were
spoken," 4 Taunt, at p. 365.
DEFAMATION AS A TORT 367
illustration of the salutary principle that settled rules should not
be lightly overruled on a priori grounds.
In fact, the modern torts of slander and libel represent two
different strata of legal development Slander represents the tort
developed in the sixteenth and early seventeenth centuries in and
through the action on the case. Libel represents the tort created
by the judges of the latter part of the seventeenth century, in order
to remedy those defects of the tort developed in the earlier period,
which had been caused largely by the efforts of the judges to dis-
courage the action on the case. Their action put the tort of libel
on the right lines ; and if ever an assimilation between the two
torts is effected by the Legislature, it will be taken as the model.
At the same time, the tort developed in and through the action on
the case in the earlier period has influenced in many ways the
later development of the law. We shall now see that some of the
rules, which originated in the action on the case for defamation,
were applied to the tort of libel ; and, similarly, that some of the
rules applicable to libel as a crime have both influenced, and been
influenced by, the development of the torts of libel and slander.
(3) The origin of some of the essential characteristics of the torts
of libel and slander.
During the sixteenth and seventeenth centuries we can see the
origins of some of the essential characteristics of the tort of defam-
ation. Many of them originated in the rules applied by the
common law courts to the action on the case, and were applied
both to slander and libel. Some of them, notably the rules as to
the innuendo and privilege, were applied both to the crime and to
the tort of defamation, and illustrate the manner in which the tort
influenced the crime. On the other hand, in the rule, which long
prevailed, that the statement must have been made maliciously we
can trace one way in which the crime influenced the tort. I shall
deal with these rules under the following heads : — (i) the words or
writing must be defamatory, and they must be proved to have
been spoken or written in the manner alleged by the plaintiff;
(ii) they must be proved to have been spoken or written of and
concerning the plaintiff; (iii) they must have been published to
some third person ; (iv) they must have been published maliciously ;
and (v) they must not admit of justification nor have been written
or spoken on a privileged occasion.
(i) The words or writing must be defamatory, and they must
be proved to have been spoken or written in the manner alleged by
the plaintiff.
So soon as the courts allowed an action on the case for defama-
tion, the question, what statements could be regarded as defamatory,
368 CRIME AND TORT
arose. It soon became clear that though, as to some statements,
there could be no question, as to others the context and circum-
stances made all the difference. It was necessary, therefore, to
lay down rules as to the manner in which a plaintiff, who
complained of one of these ambiguous statements, must frame his
pleading. Partly by reason of the growing elaboration of the
rules of pleading, and partly by reason of the desire of the judges
to discourage these actions, the rules on this matter were strict.
They are contained in the mass of pleading rules which grew up
round the "innuendo" and the "colloquium."
If words were obviously defamatory of the plaintiff, no innuendo
was needed ; and if they were obviously not defamatory, an
innuendo could not make them actionable. An innuendo, there-
fore, could only be of use where the statement was apparently
defamatory, but where the person or thing alluded to in it was not
described with sufficient clearness. It could not add to the
statement any additional fact needed to remedy an uncertainty in
the person defamed, or in the charge made against that person.
It could only indicate with greater clearness a person already
mentioned, or a charge already made. These rules are clearly
illustrated in a case reported by Coke.1 Dealing with the rule
that an innuendo could only indicate with greater clearness a
person already mentioned, he says, "If one says without any pre-
cedent communication that one of the servants of J. S. (he having
many) is a notorious felon or traitor, here, for the uncertainty of
the person, no action lies ; and an innuendo cannot make it
certain. . . . But when a person is once named in certain, as if
two speaking together of J. S. one says, ' he is a notorious thief,'
then J. S. in his declaration may show that there was speech of
him between the two, and that one said !of him, ' he (innuendo
praedictum J. S.) is a notorious thief.' For the office of an
innuendo is to contain and design the same person who was
named in certain before, and in effect stands in lieu of a praedict ',
but an innuendo cannot make a person certain who was uncertain
before." Dealing with the rule that it could only indicate with
greater clearness a charge already made, he says, " An innuendo
cannot alter the matter or sense of the words themselves ; and
therefore when the defendant in the case at bar said of the plain-
tiff, 'that he was full of the pox (innuendo the French pox),'
this innuendo doth not do its proper office, for it endeavours to
1 James v. Rutlech (1599) 4 Co. Rep. 17 b ; cp. Barham v. Nethersal (1602) ibid
20a ; R. v. Griepe (1698) 1 Ld. Raym. at p. 259, S.C. 2 Salk. 513 ; cp. March,
Actions for Slaunder (ed. 1647) 141 — " the office of an innuendo is only to containe
and design the same person which was named in certain before ... or else to declare
the matter or sense of the words themselves which was certainly expressed before."
DEFAMATION AS A TORT 369
extend the general words, the pox, to the French pox, by
imagination of an intent which is not apparent by any precedent
words, to which the innuendo should refer."
These illustrations indicate the function of the colloquium. As
the innuendo could only clear up doubts as to persons or matters
already referred to, it was necessary to set out all these persons
and matters very carefully in the introductory averments.1 These
introductory averments were known as the colloquium, and this
colloquium must contain a careful narrative of all the circumstances
which were necessary to be stated, in order to prove that the
words, with the appropriate innuendoes, were defamatory. Un-
less these circumstances ,were stated with the utmost care, it
would be possible to arrest judgment, on the ground that the
statement and the innuendoes gave no cause of action.- It
was not till the Common Law Procedure Act of 1852 3 that
the need for this colloquium was removed, and that plaintiffs,
in actions for libel or slander, were allowed "to aver that the
words or matter complained of were used in a defamatory
sense, specifying such defamatory sense, without any prefatory
averment to show how such words or matter were used in that
sense."
It was at first necessary for the plaintiff to prove that the
words had been spoken exactly as he alleged them.4 During the
eighteenth century this strictness was somewhat relaxed,5 but not
wholly removed.6 And, wherever a colloquium was necessary to
ground the action, the averments in the colloquium must also be
strictly proved. Thus, if words were only actionable if spoken
of the plaintiff in his trade, there must be a colloquium alleging
this, and the facts there set out must be proved.7
1 " That in all cases for words, where there is anything that is the cause or
ground of the action, or tends necessarily to the maintenance of it, in such case the
action will not lie, without that thing be expressly averred to be, or not to be, as the
case requireth," March, Actions for Slaunder (ed. 1647) 142.
2 Johnson v. Aylmer (1606) Cro. Jac. 126 ; Scutt v. Hawkins (1623) 2 Rolle Rep.
243 ; cp. Dacy v. Clinch (1661) 1 Sid. 52 for a case in which a motion to arrest judg-
ment on this ground failed.
3 15, 16 Victoria c. 76 § 6r ; cp. Watkin v. Hall (1868) L.R. 3 Q.B. at pp. 401-
402 ; Clerk and Lindsell, Torts (4th ed.) 567.
4 " Action for these words : ' Thou (innuendo) the plaintiff art a villainous and a
murderous quean ; for thou didst murder my last wife.' The defendant pleaded not
guilty. The jury found that the defendant spake these words of the plaintiff to one
Spinkfoot : * she is a villainous and a murderous quean ; for she did murder my last
wife.' Popham and Fenner held that this verdict is against the plaintiff; for they
are not the same words mentioned in the declaration," Blisset v. Johnson (1597)
Cro. Eliza. 503 ; cp. Sydenham v. May (1616) Hob. 180, and the cases cited by
Rolle, Ab. ii 718; Hilsden v. Mercer (1624) Cro. Jac. 677.
5 See Compagnon v. Martin (1772) 2 W. Bl. 790.
6 See Barnes v. Holloway (1799) 8 T.R. 150.
7 Savage v. Robery (1699) 2 Salk. 694.
VOL. VIII. — 24
370 CRIME AND TORT
(ii) The words or writing must be proved to have been spoken
or written of and concerning the plaintiff.
Just as the law required strict proof that the statement was
defamatory, and that it had been written or spoken as alleged, so
it required strict proof that it was written or spoken of and con-
cerning the plaintiff. Unless it was alleged in the plaintiff's
declaration that the statement was made of and concerning him,
the declaration was bad. Thus, in the case of Johnson v. Aylmer,1
the plaintiff declared that the defendant spoke and published the
following false and scandalous words : " Mr. Price, you do my
Lord Burleigh wrong, that you do not apprehend Jeremy Johnson,
innuendo the plaintiff, for a felon, and seize his goods ; for he,
innuendo the plaintiff, hath stolen a sheep from Wright of Rirsly,
innuendo John Wright." After verdict for the plaintiff, it was
successfully moved in arrest of judgment, "that the words are too
generally laid to maintain the action ; for they are not alleged to
be spoken of the plaintiff in the writ or count ; but only in
reciting the words he saith, innuendo the plaintiff; and the
innuendo, without expressly alleging the words to be spoken of
the plaintiff, will not maintain the action." This principle was
rigidly applied in later law both to actions and to indictments, as
is made abundantly clear by the luminous judgment of Fletcher-
Moulton, L.J., in Jones v. Hulton} But the decision of the
majority of the court of Appeal and the House of Lords3 in that
case, has, in effect, placed a new 4 and important limitation on the
generality of this rule. If a person publishes a libellous state-
ment of a fictitious person, whom he christens by a name of his
own choosing, and neither knows nor cares whether or not his
statement can be taken as referring to an existing person of that
name ; and if in fact the jury is satisfied that it has been taken to
refer to an existing person ; that person can recover damages.
Recent developments in modern journalism make this modi-
fication of the strictness of the old principle clearly necessary ;
and the technical reasoning by which the law has been thus
modified in the interests of substantial justice, is a good instance
of the flexibility which our system of case law imparts to our
legal system. In effect, it is based on an analysis of the nature
of the intention to libel the plaintiff which the law requires.5 The
1 (1606) Cro. Jac. 126.
2 [1909] 2 K.B. at pp. 459-465 5 cp. L.Q.R. xxv 341-342.
3 [1910] A.C. 20.
4 That this limitation is new is I think clear ; on this I agree with what is said
L.Q.R. xxvi 103-104, "All the learning and subtlety of the Lord Justice (Farwell,
L.J.), backed by the agreement of the noble and learned Lords, still fail to convince
us that this is not very new law. It may be said, however, and no doubt will be, that
the law is new only because the question had never risen in such a form."
6 [I9°9] 2 K.B. at pp. 480-482 per Farwell, L.J.
DEFAMATION AS A TORT 371
law will impute intention to do an act, not only if the defendant
actually meant to do it, but also if he acts recklessly, that is
without any care whether he does it or not. Just as an intention
to deceive can be imputed, both where a person makes a false
statement of fact with knowledge of its falsity, and also where he
makes such a statement recklessly, that is neither knowing nor
caring whether it be true or false ; so an intention to libel the
plaintiff can be imputed from either of these two states of mind.
"The element of intention, which is as essential to an action for
defamation as to an action for deceit, can be proved in the same
way in both actions."1
(iii) The words or writings must have been published to some
third person.
We have seen that this rule was always applied to the action
on the case, because it followed from the fact that the damage to
the person, arising from the defamatory statement, was the gist of
the action.2 Therefore the plaintiff must always allege such pub-
lication in his declaration ; 3 and, if the words were in a foreign
language, he must further allege that they were understood by
those who heard them.4 This rule as to the necessity of publica-
tion to a third person was naturally followed in the case of libel ;
but in the case of a libel written in a foreign language, and pub-
lished to the world at large, though the words must be set out,
both in the original and in a translated form in the plaintiff's
declaration,5 the allegation that they were understood would be
obviously unnecessary.
(iv) The words or writings must have been published maliciously.
At the present day it would hardly be correct, and it would
certainly be misleading, to state the rule in this form. When it
is said that the words or writings must have been published
maliciously, all that is meant is that they must have been pub-
lished without just cause or excuse.6 We shall see that this was
all that the earlier cases upon the tort of defamation meant ; and
we have seen that the same thing is true of the crime of defama-
tion.7 But, when it became customary to allege malice both in
declarations in civil cases and in indictments in criminal cases, it
naturally came to be thought that malice was an essential
1 [1909] 2 K.B. at p. 481. 2 Vol. v 207 ; above 335.
3 As to what would be held to be a sufficient allegation of publication, see Taylor
v. How (1602) Cro. Eliza. 861 ; Mors v. Thacker (1677) 2 Lev. 193.
* Price v. Jenkings (1602) Cro. Eliza. 865 ; cp. the declaration in Jones v. Davers
(1597) ibid. 496.
5 Zenobio v. Axtell (1795) 6 T.R. 162 ; 1 Wms. Saunders 242 n.
6 Below 374-375- 7 Above 341-345-
372 CRIME AND TORT
ingredient both of the tort and crime. Defamatory statements,
it was said, must have been published maliciously. It was how-
ever admitted that, from the fact that a false and defamatory
statement had been published without just cause or excuse, the
law implied malice. But when it is said that the law ' implies '
anything, it is generally the case that the thing implied is not
really present. Hence, in modern times, the law as to this part
of the subject has been considerably clarified, by the recognition
of the principle that malice is not a necessary ingredient either in
the crime or in the tort of defamation ; and that it is only im-
portant in those cases in which the defence of qualified privilege
is set up. Thus the history of this rule is the history of its
gradual introduction into, and final elimination from, the law.
It is clear from the conditions under which the action on the
case lay that malice was not the gist of the action ; and this was
recognized in some of the cases decided in the sixteenth and early
seventeenth centuries. It was held in 1 597 that it was not neces-
sary in an action on the case to allege that the words were spoken
" malitiose."1 But, in the earlier case of Mercer v. Sparks? we
can see a hint of the manner in which the idea that malice is a
necessary ingredient in the tort will be introduced. In that case
it was held that it was no error not to allege that the words were
spoken maliciously, " because the words themselves were malicious
and slanderous." Clearly this comes very near to the rule that
malice is implied. It is not therefore surprising to find that in other
cases it is laid down that the malice or intention to slander was of
the essence of the cause of action.3 Moreover, no very clear distinc-
tion was as yet drawn between the malice which the law implies
from the speaking of slanderous words, and the express malice which
will rebut a defence of qualified privilege, because, as we shall see,
the conception of qualified privilege had not as yet been attained.4
In 1652 Rolle, C.J., restated the rule that, in an action for
slander, there was no need to allege that scandalous words were
spoken malitiose ; but he added that, in an indictment, such an
allegation must be made, because that was the usual form.5 In
this statement we can see an indication of the manner in which the
idea that malice was an essential ingredient in the tort of defama-
tion was introduced into the law. We have seen that, when the
1 Anon. Moore 459 — " Auter error assigne quia ne fuit alledge que les parols fuerunt
paries malitiose, et uncore auxi bone en action sur le cas pour parols."
2 (1586) Owen 51.
3 This point comes out clearly enough in Brook v. Montague (1606) Cro. Jac. 90,
and in the ruling of Wray, C.J., in the case cited ibid at p. 91.
4 Below 377.
6 " And he said that in an endictment a thing must be expressed to be done lalso et
malitiose, because that is the usual form, but in a declaration those words are not
necessary," Anon. Style 392.
DEFAMATION AS A TORT 373
criminal jurisdiction formerly exercised by the Star Chamber in
libel cases was taken over by the courts of common law, the allega-
tion that the statement was made maliciously was always made.1
It is true that the judges tried to neutralize the effect of this con-
ception of the crime, by holding that the legal effect of the words
published, and therefore their malice, were matters of law for the
court, and not matters of fact for the jury.2 But they obviously
thought that malice must be regarded as a necessary ingredient of
the crime. As we have seen, they would have greatly strengthened
their position at the expense of the jury, if they could have ruled
that malice was not a necessary ingredient ; for in that case it
would have been quite clear that all the jury had to find was the
publication of a writing bearing the meaning alleged by the
prosecution. No room would have been left for the contention
that, as malice was the gist of the offence, the jury must be con-
vinced that the publication was malicious, before they found the
accused guilty of libel, just as they must be convinced that a
homicide was malicious, before they found the accused guilty of
murder.3 It is not surprising that it became more and more usual
for plaintiffs who were suing in tort for libel or slander, to allege
malice ; and that, in spite of the earlier precedents to the contrary,
it gradually came to be thought that malice was as essential
an element of the tort as of the crime. In a case of 1632,
reported by March, the plaintiff had alleged that the words were
spoken "falso et malitiose," and the jury found that they were
spoken "falso et injuriose." Judgment was given against the
plaintiff, because the jury did not find malice — " for if the words were
not spoken maliciously, no action will lie." * This statement of the
law no doubt confirmed the existing practice of always alleging
malice. Thus in 1737 it was said "that words are always laid to
be spoken falso et malitiose, and that therefore any evidence prov-
ing them not to be so ought to be admitted." To this proposition
the court seems to have assented, for, " it was agreed that malice
is the gist of this action and that therefore evidence proving the
manner and occasion of speaking the words to show that they were
not spoken with malice has always been admitted. " 5 And the
law was stated in the same way by Comyns6 and Blackstone.7
1 Above 341-342. 2 Above 343-345. 3 Above 342-343.
4 Actions for Slaunder (ed. 1647) *2* — he concluded from this case that if the
declaration did not state " that the words were spoken malitiose as well as /also the
action will not lie."
5 Smith v. Richardson, Willes at p. 24.
6 " The declaration must show a malicious intent in the defendant," Digest, Action
on the Case for Defamation G. 5 ; note however that, having made this general state-
ment, Comyns at once qualifies it by the admission that " it is sufficient to say falso
dixit without malitiose."
7 " Words of heat and passion, as to call a man rogue and rascal, if productive of
no ill consequence, and not of any of the dangerous species before mentioned, are not
374 CRIME AND TORT
But, in the first quarter of the nineteenth century, it began to
be perceived that malice was not an essential ingredient in either
the crime or the tort of defamation. This new view of the law
rested in substance on a distinction between what was called
" legal " malice or malice implied by law, and " actual " malice. As
long ago as 1 7 1 3 this distinction had been recognized by Parker,
C.J., who had pointed out that the former variety of malice meant
nothing more than that the thing, said to be maliciously done, was
done without just cause or excuse.1 But it was not till the be-
ginning of the nineteenth century that this doctrine was applied to
defamation, because it was not till then that the disturbing effects
of the controversy, as to the rights of juries in cases of libel, had
been quieted by Fox's Libel Act.2 As the result of that Act, it
was possible to approach the question as a pure matter of law ; for,
however libel was defined, the jury could now return a general
verdict on the whole question. The manner in which this new
view of the law was put forward and reconciled with the older
view, will appear from the following cases : In 1823, in the case
of R. v. Harvey, Holroyd, J., said that, "It is not necessary to
aver in such an indictment any direct malice, because the doing of
such an act without any excuse is indictable. ... If the matter
published was in itself mischievous to the public, the very act of
publishing is prima facie evidence to show that it was done malo
animo ; for when a publication having such an injurious tendency
is proved, it is intended to have been done with a malicious inten-
tion ; because the principle of law is that a party must always be
taken to intend those things and those effects which naturally grow
out of the thing done."3 In 1825, in the case of Bromagev.
Prosser? this rule was applied to actions for tort ; and it was
actionable : neither are words spoken in a friendly manner, as by way of advice, ad-
monition, or concern, without any tincture or circumstance of ill will ; for in both
these cases they are not maliciously spoken, which is part of the definition of slander.
. . . What was said with regard to words spoken, will also hold in every particular
with regard to libels by writing or printing, and the civil actions consequent thereupon,"
Bl. Comm. iii 125-126; dealing with the criminal law, he defines libels as *' malicious
defamations of any person, and especially a magistrate, made public by either printing
writing signs or pictures in order to provoke him to wrath, or expose him to public
hatred contempt and ridicule," ibid iv 150.
1 " Malice in common acceptation is a desire of revenge, or a settled anger
against a particular person. . . . This is by the vulgar use of the words in English.
But (it) is not the legal sense taking them as law terms. ... In short malice and
maliciously I take to be terms of law which in the legal sense always exclude a just
cause. So in case of murder, the statutes take away clergy in case of wilful murder of
malice prepense, when wilful stands in opposition to accidental, and of malice to
cases of reasonable provocation, such as might move an honest and good man ; and
the Court and not the jury have ever determined of malice. And the question has
always been with or without cause or excuse, and therefore that which is only malice
implied by law, perhaps would be expressed more intelligibly, at least more familiarly,
if it were called malice in a legal sense," Jones v. Givin (1713) Gilb. Cas. at
pp. 190-193.
3 Above 345. s 2 B, and C. at pp. 266-267. 4 4 B. and C. 247.
DEFAMATION AS A TORT 375
clearly laid down that, except as an answer to the defence of
privilege, the allegation of malice was unnecessary. " Malice," it
was said, " in common acceptation means ill will against a person,
but in its legal sense it means a wrongful act done intentionally
without just cause or excuse."1 Except when malice is alleged
as an answer to the defence of privilege, the term is used in its
legal sense. Hence it is not necessary to aver it, as the law im-
plies it from the fact that a defamatory statement has been made.2
But, in the course of the nineteenth century, it was admitted that
the general rules of pleading were the same in criminal and in
civil cases.3 These two cases were therefore held, in R. v.
Munslow* in 1895, to show that malice was not an essential
ingredient, either in the crime or the tort of defamation.
We have seen that, in the seventeenth century, the influence
of the criminal law had helped to establish the view that malice
was an essential ingredient in the tort of defamation.5 The
judgment in R. v. Munslow shows that, in the nineteenth century,
the influence of the law of tort helped to overthrow this view, and
to establish the rule that malice is not an essential ingredient in
either the crime or the tort of defamation, and that it only becomes
important when a plea of privilege is set up. To the origins of
the conception of privilege we must now turn.
(v) The words or writing must not admit of justification nor
have been spoken or written on a privileged occasion.
We have seen that to an action for the tort of defamation a
plea of truth was always a defence.6 This plea is known as a plea
of justification ; and the same strict principles were applied to the
construction of such a plea as were applied to the plaintiff's
declaration. Thus, in the case of Johns v. Gittings,7 the plea was
held bad, partly upon the ground that the defendant had not fully
justified the words which he was alleged to have used ; and it is
still the law that a plea of justification is bad, unless it establishes
1 At p. 255 per Bayley, J.
3 " If I traduce a man, whether I know him or not, and whether I intend to do
him an injury or not, I apprehend the law considers it as done of malice, because it is
wrongful and intentional. It equally works an injury, whether I meant to produce an
injury or not, and if 1 had no legal excuse for the slander, why is he not to have a
remedy against me for the injury it produces ? And I apprehend the law recognises
the distinction between these two descriptions of malice, malice in fact and malice in
law, in actions of slander. In an ordinary action for words, it is sufficient to charge
that the defendant spoke them falsely. . . . But in actions for such slander as is
prima facie excusable on account of the cause of speaking or writing it, as in the case
of servants' characters . . . malice in fact must be proved by the plaintiff," 4 B. and
C. at p. 255.
3 Heymann v. R. (1873) L.R. 8 Q.B. at p. 105 per Blackburn, J.
* [1895] 1 Q.B. 758. 5 Above 373. • Vol. v 207.
7 (1590) Cro. Eliza. 239 ; cp. Hilsden v. Mercer (1624) Cro. Jac. 677 ; 1 Wins.
Sanders, 244 n.
376 CRIME AND TORT
that the statement "was true as a whole and in every material
part thereof."1 In addition to this narrower sense of the term
justification, it is sometimes used in a larger sense to mean a
defence which otherwise justifies, i.e. renders legal, the making of
a defamatory statement. In other words, it covers the defence of
privilege ; for privilege, like truth, is a defence to an action for
libel or slander ; and, unlike truth, it is also a defence to a
criminal prosecution.2
During this period the law as to privilege was meagre, and the
modern distinction between absolute and qualified privilege had
not arisen. Most of the cases are cases of what we should now
call absolute privilege. The earlier cases all turn upon documents
written with a view to, or in the course of, judicial proceedings, or
upon words spoken by persons concerned in litigation. Thus, it
was held in 1 5 69, that to sue out a writ for forgery of deeds could
not be made the basis of an action for scandalum magnatum ; 3
and the same rule was applied in 1585 to matter alleged in
articles of the peace, exhibited to the justices.4 It was settled, by
the first quarter of the seventeenth century, that no action lay
against judges, witnesses, or counsel for defamatory statements
made in the conduct of litigation ; 5 and it was settled by the
case of Lake v. King in i668,G after considerable debate and con-
flict of judicial opinion, that a similar rule must be applied to
documents, circulated to the members of a committee of the House
of Commons, and dealing with the matters which that committee
was appointed to consider.7 This case settled, in substance, that
documents connected with Parliamentary proceedings, and pub-
lished to members of Parliament, had the same privilege as had
already been accorded to judicial proceedings. A little later it
was settled there was no privilege for those who published
documents connected with these proceedings to the world at
large. 8
1 Pollock, Torts (12th ed.) 261. 2 Kenny, Criminal Law, 309-310.
3 Lord Beauchamp v. Croft Dyer 285a.
4 Cutler v. Dixon 4 Co. Rep. 14b — " If actions should be permitted in such cases,
those who have just cause for complaint, would not dare to complain for fear of infinite
vexation."
5 Brook v. Montague (1606) Cro. Jac. go ; Weston v. Dobniet (1618) ibid 432 ;
Harding v. Bodman (1618) Hutton 11 ; Ram v. Lamley (1633) ibid 113 ; cp. Floyd
v. Barker (1608) 12 Co. Rep. 23 where the judicial immunity from all actions arising
out of things done in a judicial capacity is laid down in very wide terms; for the
history of these rules see vol. vi 234-240.
H 1 Wms. Sanders 131.
7 Kelyng, C.J., held that, though the exhibiting of the petition was lawful, " the
printing of it was a publication to all the world, which is not lawful," ibid at p. 132 ;
but, " after this case had depended twelve terms, now this term judgment was given
for the defendant by Hale, Chief Justice, Twysden, and Rainsford, upon this point,
namely, that it was the order and course of proceedings in Parliament to print and
deliver copies etc., whereof they ought to take judicial notice," ibid at p. 133.
8 R. v. Salisbury (1699) * Ld. Raym. 341.
DEFAMATION AS A TORT 377
The idea that there could be any privilege for those who pub-
lished true reports of judicial or Parliamentry proceedings had not
as yet arisen.1 In fact it could not arise, till the courts had
arrived at the modern distinction between absolute and qualified
privilege, and had ascertained the true meaning of the latter kind
of privilege ; for the privilege accorded to these reports
at the present day is essentially qualified privilege, in as much as
it can be rebutted, if the report can be shown to be garbled or
unfair.2 During this period, we can only see faint traces of the
ideas which underlie the conception of qualified privilege ; and the
notion that privilege could be divided into these two classes had
not as yet arisen. In a case of the year 1 597, it was ruled that
defamatory words spoken by the defendant of the plaintiff, in
order to advise a third person upon a matter in which he had an
interest, were not actionable.3 We can see here the germ of
the idea which will cover most of the cases of qualified privilege
in later law ; and it would seem that the law had not advanced
very far beyond this stage when Blackstone wrote.4 In a case of
the year 1 606, we can see the germ of the idea that a statement,
prima facie privileged, will lose its privilege if spoken with
malice.6 But this was said of a statement which would, at the
present day, be absolutely privileged, so that it is clear that the
courts had as yet no idea of the modern distinction. No doubt
the very wide terms in which the privilege accorded to judicial
and Parliamentary proceedings was being laid down by the courts,
helped to give rise to the modern conception of absolute privilege.
But probably the uncertainty which, as we have seen,6 long pre-
vailed as to the part played by malice in the tort and crime of
defamation, helped to retard the recognition of the conception of
qualified privilege.
1 See Wason v. Walter (1868) L.R. 4 Q.B. at pp. 93-94 per Cockburn, C.J. ; and
ep. Curry v. Walter (1796) 1 B. and P. 525.
2 " It is to be observed that the analogy- between the case of reports of pro-
ceedings of courts of justice and those of proceedings in Parliament being complete,
all the limitations placed on the one to prevent injustice to individuals will necessarily
attach on the other : a garbled or partial report, or of detached parts of proceedings,
published with intent to injure individuals, will equally be disentitled to protection,"
Wason v. Walter at p. 94.
3 The plaintiff alleged that he was a merchant, and that the defendant, to discredit
him, said to D, " Doth Vanspike (the plaintiff) owe you any money " ? and that on D
saying that he did, the defendant said, " you had best call for it ; take heed how you
trust him " ; judgment was given for the defendant, " for it is not any slander to the
plaintiff, but good counsel to D," Vanspike v. Cleyson, Cro. Eliza. 541.
4 Bl. Comm. iii 125, cited above 373 n. 7 ; but it was just about this period that
the modern law was beginning to be developed by Lord Mansfield, see Weatherston
v. Hawkins (1786) 1 T.R. no.
5 Brook v. Montague Cro. Jac. 90 — -" if he (counsel) give in evidence anything not
material to the issue, which is scandalous, he ought to aver it to be true, otherwise he
is punishable ; for it shall be intended as spoken maliciously and without cause " ; and
the law so stated by March, Actions for Slaunder (ed. 1647) 1 19-120.
6 Above 345, 372-375-
378 CRIME AND TORT
In the law of defamation, as in many other branches of the
common law, the outlines of the modern law emerged during the
sixteenth and seventeenth centuries. But, owing principally to the
great changes effected by the introduction of printing, and to some
extent to the desire of the common law courts to expand their
jurisdiction, this branch of the law is, perhaps, more distinctly
than any other, the creation of these two centuries. At the be-
ginning of the period the ecclesiastical courts still retained the
lion's share of this jurisdiction ; and it was only in cases involving
the exercise of the statutory jurisdiction over the defamation of
magnates, that the common law regularly interfered. At the
end of this period the criminal law of defamation, which had been
created by the Star Chamber, had been taken over by the common
law ; and the torts of libel and slander had been established on
substantially their modern basis. The law as thus settled has not
been found to be wholly satisfactory in later periods in the history
of the law. In the eighteenth century, political developments ne-
cessitated important changes in the criminal law ; and the division
of the tort of defamation into libel and slander — a division due
historically to the need for finding some remedy for the mis-
takes made by the common law in the initial stages of the develop-
ment of the tort — still disfigures the law. But the definition of
the tort of libel was on the whole satisfactory ; and it has formed
a good starting point for the development of, and a sufficient frame-
work, for the many detailed rules which the modern expansion of
literature and journalism has necessitated. If the rules appli-
cable to libel were applied to all kinds of defamation, and the
fact that the defamation was oral, was only allowed to weigh in
considering the measure of damages, no serious complaint could
be made against our modern law.
§ 3. Conspiracy, Malicious Prosecution, and Maintenance
Conspiracy and Malicious Prosecution
We have seen that two divergent streams of doctrine have
gone to the making of the law of conspiracy, (i) Statutes of the
thirteenth century had provided a writ of conspiracy, which lay
against two or more persons who had combined to indict or appeal
another of felony, if that other had been acquitted by verdict of
the jury.1 In addition, the mediaeval common law had developed
an action on the case in the nature of conspiracy, which was
generally brought for a combination to defraud the plaintiff by the
J Vol. iii 402-405.
THE MODERN CRIME OF CONSPIRACY 379
fraudulent use of the machinery of the courts ; and the damage,
and not the conspiracy, being the gist of this, as of other actions
on the case, it differed from the statutory writ in that it lay against
one defendant only.1 (ii) The court of Star Chamber had enlarged
the scope of the offence of conspiracy. It punished criminally,
not only conspiracies to abuse the process of the courts, but also
conspiracies to commit any wrongful act ; 2 and we have seen that
the jurisdiction which it assumed in these cases, tended to shade
off into the very salutary jurisdiction which it exercised over
attempts to commit crimes.3 Moreover, though it treated these
conspiracies as criminal offences, it adopted, somewhat illogically,
the rule applied by the common law to the action on the case, and
punished a single person who had made a false accusation.4
When the common law courts took over the jurisdiction of the
Star Chamber, they found it necessary to construct a law of con-
spiracy on these foundations. The result of their efforts can be
summed up as follows : Firstly, they adopted the wide definition
of conspiracy which had grown up in the court of Star Chamber,
and so created the modern crime of conspiracy ; but, as the gist
of the crime was the conspiracy, they held that it could not be
committed by a single person. Secondly, from the statutory writ
of conspiracy and the action on the case, they developed the tort
of malicious prosecution. Thirdly, at a later date it came to be
thought that acts which would amount to the crime of conspiracy,
would also give rise to an action in tort for conspiracy at the suit
of an individual damaged thereby ; and, as the gist of this action
was not the conspiracy, but the resulting damage, it followed that
it would lie against a single defendant. But whether in such a
case the cause of action is the conspiracy, or whether it is not
rather the unlawful acts done in pursuance thereof — whether, in
other words, there is any such thing as a separate tort of conspiracy,
is a controverted question which has given rise to much difference
of opinion.
With the history of these developments I propose to deal
under the following heads : (i) The modern crime of conspiracy ;
(2) Malicious prosecution ; and (3) The modern tort of conspiracy.
(1) The modern crime of conspiracy .
The modern crime of conspiracy is almost entirely the result
of the manner in which conspiracy was treated by the court of
Star Chamber. Almost the only idea which it has borrowed from
the common law is the rule, taken from the statutory writ of
conspiracy, that the crime (like the crime of riot) cannot be com-
mitted by one person, though the other persons need not be specified,
1 Vol. iii 405-407. 2 Vol. v 204-205,
3 Ibid 201, 203, 204. 4 Ibid 204.
380 CRIME AND TORT
and may indeed be unknown.1 The other two essential features
of the crime — (i) the fact that the gist of the offence is the con-
spiracy and not acts done in pursuance thereof, and (ii) the fact
that the crime is committed if persons conspire to commit any
unlawful act, or any lawful act by unlawful means — are derived
ultimately from the practice of the Star Chamber.2 But these two
essential features were developed by the common law courts after
the Restoration ; and it is of the beginnings of this development
that I must speak at this point.
(i) When it is said that the gist of the offence is the conspiracy,
what is meant is that the offence consists, not in the illegal acts
done in pursuance thereof, but in the act of agreement or combina-
tion for these purposes. But there must always have been an
overt act of agreement or combination, so that a mere uncom-
municated intention to conspire is not a conspiracy. Just as in the
case of high treason, where the offence is the intention to kill the
king, so in conspiracy, where the offence is the fact of agreement 3
— in neither case can the offence be committed unless an overt act
manifesting an intention to kill, or an agreement to do the unlawful
act, be proved. It is clear from Coke's statement in The Poulterers'
Case4" that the common law has always required proof of a "co-
adunation, confederacy or false alliance " ; 5 and there is no reason
to think that the law of the Star Chamber was otherwise. This
is assumed in the later cases ; and that this assumption was
correct was laid down by Willes, J., and assented to by the House
of Lords in 1868, in a statement which was noteworthy, not for
its novelty, but for the clearness with which it defined the meaning
of both of the two essential features of the crime.6 Of the second
1 R. v. Starling (1664) 1 Sid. 174, cited below n. 3 ; R. v. Kinnersley (1719)
1 Str. 193 ; Kenny, op. cit. 288 ; Winfield, Hist, of Conspiracy 59-65 ; for the
rule applicable to the statutory writ see vol. iii 405 ; and for the rule applicable to riot
see above 324.
2 Vol. v 204-205.
3 " Nepoit estre conspiracy sans ascun overt act de plusors," R. v. Starling (1664)
1 Sid. at p. 174 ; cp. R. v. Best (1705) 1 Salk. 174 ; R. v. Kinnersley (1719) 1 Str. at
P- 195-
4(i6n) 9 Co. Rep. 55b.
5 " The usual commission of oyer and terminer gives power to the commissioners
to enquire, etc., dc omnibus coadunationibus confctderationibus et jalsis alligantiis ;
and coadttnatio is a uniting of themselves together, confcederatio a combination
amongst them, and falsa alligantia is a false binding each to the other, by bond or
promise, to execute some unlawful act : in these cases before the unlawful act executed
the law punishes the coadunation, confederacy, or false alliance to the end to prevent
the unlawful act," ibid at ff. 56b, 57a.
6 " A conspiracy consists not merely in the intention of two or more, but in the agree-
ment of two or more to do an unlawful act, or to do a lawful act by unlawful means. So
long as such a design rests in intention only it is not indictable. When two agree
to carry it into effect, the very plot is an act in itself, and the act of each of the parties,
promise against promise, actus contra actum, capable of being enforced if lawful,
punishable if for a criminal object or for the use of criminal means," Mulcahy v. R,
(1868) L.R. 3 H. of L. at p. 317.
THE MODERN CRIME OF CONSPIRACY 381
of these essential features, emphasized in the statement of Willes
J., I must now say a few words.
(ii) It is well established law at the present day that the
crime is committed by an agreement to do an unlawful act, or to
do a lawful act by unlawful means. If the act agreed to be done
is a crime or a tort — at any rate a malicious tort,1 or if means are
to be adopted to secure a lawful object, which involve the com-
mission of a crime or a tort, there is no difficulty. The chief
difficulty, to which the definition of the crime has given rise,
consists in the fact that an act may be sufficiently unlawful to
render an agreement to do it a criminal conspiracy, though it
cannot be brought under any of the recognized categories of crime
or tort That this was so, was clearly recognized by the common
law courts after the Restoration. In addition to conspiracies to
indict maliciously, which fell under the statutory writ of con-
spiracy,2 and to do acts which amounted to a crime or a tort,3
conspiracies to do acts, which were neither crimes nor torts, were
held to be indictable. Thus, the brewers of London were held to
be guilty of conspiracy, because they had conspired to carry on
their trade in such a way that the revenue was defrauded ; 4 and
the journeyman tailors of Cambridge were likewise held to have
committed this offence, because they had conspired to raise their
wages.5 In the last mentioned case the court expressly laid it
down that "a conspiracy of any kind is illegal, although the
matter about which they conspired might have been lawful for
them or any of them to do, if they had not conspired to do it, as
appears in the case of The Tubwomen v. The Brewers of London." 6
These cases were followed in later law ; " and, as Professor Kenny
has pointed out, they have made it possible " for judges to treat
all combinations to effect any purpose which happens to be dis-
tasteful to them as indictable crimes, by declaring this purpose to
be 'unlawful.'"8
1 Kenny, op. cit. 289.
2 R. v. Kimberty (1662) 1 Lev. 62 ; R. v. Best (1705) 1 Salk. (174).
3 R. v. Twisleton and others (1668) 1 Sid. 387 — taking a daughter and marrying her
without the father's assent; R. v. Grey and others (1682) 9 S.T. 127 — conspiracy
to debauch a woman ; R. v. Thorp (1697) 5 Mod. 221 — taking a son and heir and
seducing him to contract a disgraceful marriage ; R. v. Orbell (1704) 6 Mod. 42, 12
Mod. 499 — conspiracy to cheat by running slackly in a race ; see also Winfield,
op. cit. 112-115.
4 R. v. Starling (1664) 1 Sid. 174.
5 R. v. Journeymen Taylors of Cambridge (1721) 8 Mod. n.
6 8 Mod. at pp. n-12; cp. the argument in R. v. Thorp (1697) 5 Mod. at p. 224—
" that which is lawful for one man to do may be made unlawful to be done by con-
spiracies : for instance, it is lawful for any brewer to brew small beer, but if several
shall conspire together to brew no strong, but all small beer, on purpose to defraud
the king of his duties, such conspiracy is unlawful. And so it was held in Sir Samuel
Sterling's case, who, because he could not farm the excise, did confederate with
several brewers to brew small beer only."
7 Kenny, op. cit. 289-290. 8 Ibid 291.
382 CRIME AND TORT
There can be little doubt that this wide definition of the crime
of conspiracy originates in the criminal equity administered in the
Star Chamber. We have seen that Hudson says that the Court
acted as " the curious eye of the state and the king's Council,
prying into the inconveniences and mischiefs which abound in
the Commonwealth," 1 and that, " by the arm of sovereignty it
punisheth errors creeping into the Commonwealth, which other-
wise might prove dangerous and infectious diseases, or it giveth
life to the execution of laws, or the performance of such things as
are necessary in the Commonwealth, yea, although no positive
law or continued custom of the common law giveth warrant to it." 2
Clearly, it is these ideas which the common law adopted, when they
held that conspiracies to do acts, which were neither crimes nor
torts, were indictable. These acts were contrary to public policy,
and therefore a conspiracy to effect them must be treated as a
crime. This idea came naturally to the court of Star Chamber,
because it was intimately allied to the Council — the governing
body in the state in the sixteenth and early seventeenth centuries.
It came equally naturally to the common law courts, when the
Star Chamber had been abolished, and when the common law
had made good its claim to be the supreme law in the state.
It was inevitable that it should be through the law of con-
spiracy that the common law should apply these ideas. In the
first place, it was a far more elastic crime than the older and more
precisely defined offences known to the earlier common law. In
the second place, the law as to the punishment of attempts to
commit crimes was still rudimentary, till it was put on a more
satisfactory basis by the adoption of the Star Chamber doctrines
on this matter.3 A criminal conspiracy, as defined by the Star
Chamber, and an attempt to commit a crime, are closely allied ; 4
and an alternative method of dealing with such offences was as
valuable to the common law courts as to the Star Chamber. In
the third place, a combination of any kind, unless it is very care-
fully regulated by the state, must always (in spite of the a priori
views of political speculators) be dangerous to the authority of the
state, and the regular administration of its law ; 5 and a fortiori a
combination formed to effect illegal or questionable purposes.
" Leagues of the subjects of one and the same Commonwealth,"
says Hobbes, " where every one may obtain his right by means of
the Sovereign Power, are unnecessary to the maintaining of peace
and justice, and (in case the designe of them be evill or unknown
1 Star Chamber 126, cited vol. i 504.
2 Star Chamber 107, cited vol. i 504.
:) Vol. v 201. 4 Ibid 203, 204.
6 Vol. iii 478-479.
THE MODERN CRIME OF CONSPIRACY 383
to the Commonwealth) unlawfull. For all uniting of strength by
private men, is if for evill intent unjust ; if for intent unknown,
dangerous to the Publique, and unjustly concealed."1 And
Burke agreed with him — "liberty," he said, "when men act in
bodies is power." 2 This danger, inherent in combinations, was
increased by the inadequacy of the police system of the seven-
teenth and eighteenth centuries ; 3 and, as we can see more clearly
than the politicians of the latter half of the nineteenth century, it
is not removed by a police system sufficient to guard the state
against ordinary criminals.4 This is, in fact, the true reason why
such a crime as conspiracy is as essential a part of the criminal
law in the twentieth as in the sixteenth century.
In fact, just as in the law of contract the courts used the doc-
trine of public policy to control certain of the activities of the
citizen,5 so in the criminal law it used this wide conception of
conspiracy for the same purpose. And just as in the law of con-
tract there is a legitimate use for this doctrine, so there is a
legitimate use for it in the criminal law. In both cases it is used
legitimately to strike at practices and courses of conduct which are
contrary to the established principles of the common law, and are
obviously dangerous to the state. In both cases, because it is an
elastic doctrine, it gives the law a power of so developing its
principles that they are kept in touch with the needs and ideas of
the age. But, in the criminal law, just as in the law of contract,
it may be used illegitimately, and may become merely another
name for political expediency ; and there is obviously a greater
danger that it will be thus used illegitimately in the criminal law ;
for in this branch of the law its action is more direct, and can be
made to cover a much wider ground. There is therefore more
danger that it will be used to give effect to the political prejudices
of the judges ; and, as we can see from the legal history of the
seventeenth century,6 and from our own experience, to put judges
in a position in which they can hardly avoid adjudicating upon
political questions, is detrimental, both to the impartial considera-
tion of questions of legal principle, and to their own authority.
Just as it is in relation to contracts in restraint of trade that
the doctrine of public policy in contract law has received its most
1 Leviathan Pt. ii c. 22 p. 122.
a French Revolution, 9.
5 " In days when our police system was ineffective, the law felt itself dangerously
threatened by any concert among evil doers ; and consequently, in the seventeenth
and eighteenth centuries, indictments against conspirators were held good very
readily," Kenny, op. cit. 290-291.
4 " It is not a set number that makes the Assembly unlawfull, but such a number
as the present officers are not able to suppresse and bring to justice," Hobbes,
Leviathan Pt. ii c. 22 p. 123.
5 Above 54-56. « Vol. v 350-352, 421-422.
384 CRIME AND TORT
important application,1 so it is in relation to the freedom of em-
ployers and workmen to use their capital and labour as they please,
that, in our own times, the criminal law of conspiracy has received
its most striking applications. The repeal of the combination laws,
and of nearly all the other laws which regulated commerce and
industry, under the influence of the doctrine of laissez-faire, gave
both to employers and workmen a large liberty, which they used
or attempted to use in a manner destructive of liberty. And just
as the large powers allowed by law to landowners, and other owners
of property, necessitated the creation of a rule against perpetuities,
to prevent that liberty being used to its own destruction,2 so the
large liberty allowed to employers and workmen, necessitated large
developments in the law of conspiracy, to guard against attempted
infractions of individual liberty thereby rendered possible. But the
history of the manner in which the common law attempted, by the
application of the law of conspiracy, to safeguard this liberty, and of
the very different solutions of the problem from time to time enforced
by the Legislature, belongs to the legal history of the nineteenth
and twentieth centuries. Here we need only note that, though the
technical weapon was different, the policy pursued by the common
law was the same as that which has resulted in the rules as to the
invalidity of contracts in restraint of trade, and in the rules against
perpetuities. In all these cases the policy aimed at was the removal
of the danger of arbitrary restraints on freedom — on the freedom
of contract, on the freedom of alienation, and on the freedom to
dispose of one's capital or labour at one's will. In all, except the
last and the most important of these aims, the ideas of the common
law have triumphed, to the manifest advantage of the community.
Whether or not it would not have been equally to the advantage
of the community, if, in this last case also, the common law had
triumphed, will be one of the most interesting problems awaiting
the students of the political, economic, and legal history of our own
times.
The growth of this crime of conspiracy naturally gave rise to
the problem whether or not a person injured by an indictable con-
spiracy had a right of action in tort, and, if so, what was the nature
of that right of action. We shall see that this problem did not
become acute in this period ; but, as some of the considerations
relevant to its discussion do emerge, I must say a few words about
it. But, before it can be profitably discussed, I must deal with the
later history of the statutory writ of conspiracy, and the supplemen-
tary action on the case, and show how, from these two remedies,
the modern torts of malicious prosecution, and malicious abuse of
the process of the courts, have emerged.
1 Above 56-62. 2 Vol. vii 193-194.
MALICIOUS PROSECUTION 385
(2) Malicious prosecution.
It was during the sixteenth and seventeenth centuries that the
definition of the competence of the statutory writ of conspiracy,
and the development of the action on the case founded upon it, 1
gave rise to the torts of malicious prosecution, and malicious abuse I
of the process of the courts. Though, as we have seen, there are
a few hints in the mediaeval period that the action on the case j
might have been used to redress conspiracies other than those con-
nected with the malicious use of legal process,1 this line of develop-
ment was not pursued. For remedies against other kinds of
conspiracies litigants applied to the court of Star Chamber,2 with
the result that the common law remedies never developed in this
direction. They did however develop, during this period, in a
manner which is closely parallel to other developments of common
law remedies. In the first place, the criminal element in the
statutory writ of conspiracy was tending to evaporate during the
mediaeval period ; and this, as we have seen, is precisely what was
happening in the case of the writ of trespass.3 It disappeared
entirely during this period, because its place was taken by the
much wider conception of conspiracy, which was being developed !
from the principles applied in the court of Star Chamber. In the
second place, the action on the case, which, even in the mediaeval
period, had begun to be used to supplement the defects of the
statutory writ, practically superseded it during this period ; and |
this, as we have seen, is precisely what was happening in the case
of such writs as debt and detinue.4 The history of these develop-
ments, and of the modern torts which resulted from them, I must
now trace.
In one respect the statutory writ of conspiracy, and the action on
the case, resembled one another — it is fairly certain that the plaintiff
must prove that the proceedings taken against him were both false
and malicious, and that they terminated in his favour.5 But we
1 Vol. iii 406. 2 Vol. v 205.
3 Vol. iii 318, 370. * Ibid 351, 428 seqq. ; vol. vii 402, 413-414.
s Vol. iii 403, 405 ; Staunford, P.C. Bk. iii c 11 ; Payne v. Porter (1619) Cro. jac.
490 ; March, Actions for Slaunder (ed. 1647) 130- 131, citing a ruling of Tanfield, J.,
in 1606, thus sums up the law of his time: " A conspiracy nor an action in nature of
a conspiracy will not lie if the plaintiff be not legitimo modo acquietatus ; but if one
procure another to be indicted arrested and imprisoned falso et malitiose, he shall have
an action on the case for the slander and vexation though that he be never acquitted
(i.e. acquitted by verdict) ; and he said that the like action upon the case had been ad-
judged to lie well, though that the plaintiff were never acquitted ; and the justices
relied much upon the words falso et malitiose ; and after, judgment was given for the
plaintiff. Thus you may see that when a man is falsely and maliciously procured to
be indicted, if he be acquitted, a writ of conspiracy or action on the case in nature of
a conspiracy, as the case shall be, will he, and though he be not acquitted, yet an
action upon the case will he for the slander and vexation "; for a full discussion of
this point see Winfield, op. cit 83 seqq.
VOL. VIII.— 25
386 CRIME AND TORT
'lhave seen that in other respects they were very different.1 The
taiain points of difference can be summarized as follows : Firstly,
the statutory writ applied only to a conspiracy to indict or appeal
a man of felony ; but the action on the case applied to conspiracies
jto accuse a man of other offences, or to harass him by the malicious
labuse of the process of the courts. Secondly, a plaintiff could
'only use the statutory writ if he had been acquitted by verdict.
If he had escaped in any other way, e.g. by reason of a defective
indictment, he could not make use of the writ. But the action on
the case was not fenced about by any such restrictions. Thirdly,
t as the gist of the offence covered by the statutory writ was the
I conspiracy, it could not be brought against one person only ; but,
jas the gist of the action on the case was the resulting damage, it
] could be brought against one person only. We shall now see that
it was the development of these three characteristics of the action
on the case which eliminated the element of conspiracy, and created,
sfrom these common law remedies for conspiracy, the tort of
j malicious prosecution, and other torts analogous thereto.
(i) The extension of the action on the case to cover all kinds
of malicious conspiracies to injure another by an abuse of the
process of the courts, involved (a) its extension to a conspiracy
to accuse another of the more serious offence of treason ; (b) its
• extension to a conspiracy to accuse another of some less serious
misdemeanour ; and (c) its extension to a conspiracy to injure
\ another by other abuses of process.
(a) The question whether the statutory writ lay against
persons who had maliciously conspired to indict another of
treason, had not, as we have seen, been raised in the Middle
Ages.2 It seems to have been raised for the first time in 1 614,
in the case of Lovet v. Faulkner? In that case Coke, C.J., and
the whole court were of opinion that no such action would lie.
Coke pointed out that there was no precedent for such an action —
" all the precedents are pro felonia " ; 4 and both Coke and the
court evidently considered that it would be dangerous to the
safety of the state to make a precedent, as it might discourage
persons from giving information of treasonable plots.5 No actual
1 Vol. iii 406-407.
3 On this matter see generally Winfield, op. cit. 58-59 ; cp. vol. iii 405.
3 2 Bulstr. 270.
4 " I never yet did know in case of high treason, and for the prosecution thereof
against one, any writ of conspiracy ever brought. There is no case in the law for
this, but all the presidents are pro felonia ; high treason concerns the person of the
king ; and there is no book in law to warrant the bringing of such an action for a
prosecution pro proditione," ibid at p. 271.
5 " Haughton and Dodderidge et tota Curia, every one by his oath of allegiance
is bound to discover treason, and to have one punished for this, by an action upon the
case in the nature of a writ of conspiracy, to be brought against him ; this should be
very hard," ibid.
MALICIOUS PROSECUTION 387
decision was given. But it is clear that this opinion was based
mainly on political grounds; and in 1623, the court, after a long
argument, held, in the case of Smith v. Crans/iaw,1 that an
action would lie. The court pointed out that, though a person
might be obliged to reveal treason, he was certainly not bound to
accuse others of treason falsely and maliciously ; that it would be
most unreasonable if a person falsely and maliciously accused had
no remedy; and that there was no warrant in Edward I.'s statute
for confining even the statutory writ to false and malicious accusa-
tions of felony. Dodderidge, J., cited a case in which such an
action had been successfully brought ; 2 and, as Dr. Winfield has
pointed out, the Star Chamber punished persons who made such
accusations falsely and maliciously.3
(&) We have seen that the rule that the action on the case
could be used to remedy a conspiracy to accuse another of
trespass, or other offence under the degree of felony, had been
recognized in the Middle Ages.4 It was accepted as well-estab-
lished law in this period. Thus, in the case of Marham v.
Pescod? an allegation that the plaintiff was " legitime acquietatus,"
without saying "de felonia," was held to be sufficient in an action
on the case, though it would not have been sufficient in proceed-
ings on the statutory writ ; and it was held in Carlion v. Mill 6
that the action lay for a malicious citation before the ecclesiastical
courts. But it would seem that, at the latter part of the seven-
teenth century, the courts were beginning to think that some
limitation should be put on the scope of the action. It was
suggested in one case that it should be limited to cases where the
indictment " contains matter of imputation and slander as well as
crime";7 and it would seem that this had given rise to the opinion
that the action would not lie for the malicious preferment of any
indictment for trespass 8 — an opinion clearly contrary to the older
cases.
1 W. Jones, 93 ; S.C. 2 Rolle Rep. 258.
a " Come fuit a ore in un case de Cambridgeshire, lou un conspire ove auter pur
indicter J.S. de treason, que ilsfont, apres l'un confesse que le auter ad suborne luy,
et que ils font sur ceo malice, sur que il auxi confesse ceo, et conspiracy port sur ceo
vers eux, et l'un est a cest jour imprison pur ceo," 2 Rolle Rep. at p. 260.
3 Op. cit. 59 n. 7. * Vo'. iii 406.
5 (1603) Cro. Jac. 130 ; cp. Bell v. Fox and Gamble (1610) Cro. Jac 270 — a case
on the statutory writ.
6 (1633) Cro. Car. 291.
7 Thus in Henley v. Burstal (1669) Th. Raym. 180 Serjt. Maynard argued that,
" when the indictment is preferred maliciously, and such indictment contains matter
of imputation and slander as well as crime ; then the action lies ; but otherwise when
the indictment contains crime without slander, as forcible entry etc. ... and of that
opinion was all the court"; see also Low v. Beardmore (1665) ibid 135, and
Chamberlain v. Prescot (1639) there cited, where this view was apparently upheld by
the Exchequer Chamber.
8 " The opinion of all the judges in the case of Sir Andrew HetiUv and Dr.
Burstall Th. Raym. 180 was, that no action will lie for falsely and maliciously
388 CRIME AND TORT
(c) There are several cases in which the action on the case
was brought for miscellaneous abuses of legal proceedings. Thus,
it was held that the malicious suing out of a writ of fieri facias,1
or capias ad satisfaciandum,2 was a good ground for an action on
the case ; and, in the case in which the former point was decided,
it was laid down generally that, " if a man sue me in a proper
court, yet if his suit be utterly without ground of truth, and
certainly known to himself, I may have an action of the case
against him for the undue vexation and damage that he putteth
me unto by his ill practice, though the suit itself be legal, and I
cannot complain of it as it is a suit." 3 It is thus clear that the
action was being used to cover many miscellaneous cases of
malicious abuse of process. But it would seem that the nature
of the wrongs thus redressed was as yet not nicely distinguished.
In particular, the case of Steer v. Scoble ^ shows that no clear line
was as yet drawn between the acts which will constitute the tort
of malicious prosecution, and those which will constitute the tort
of false imprisonment.
(ii) These extensions of the sphere of the action on the case
necessarily helped to emphasize the rule that it was not confined
to cases where the plaintiff had been acquitted by verdict ; because,
obviously, in many of these cases in which the action was held to
lie such acquittal was not possible. There are many cases illus-
trating the application and the extension of this rule in this period.
In Sydenham v. Keilaway 5 in 1 574 it was held that, where the jury
had ignored the indictment, though the statutory writ would not
lie, the action on the case would ; and in 1 6 1 9 the court of Ex-
chequer Chamber decided the same point in the same way.6 In
Francis Throgmortoris Case in 1 597 7 the court held that the
action did not lie, if the plaintiff escaped, because the court, be-
fore which the indictment was tried, had no jurisdiction ; but in
Atwoodv. Monger* in 1653 it was held that the action would lie
procuring a man to be indicted of a trespass. He said that he remembered that they
were of such opinion, and denied the case of 7 Hen. 4. 31 (7 Hy. IV. Mich. pi. 15,
vol. iii 405 and n. 3). But to that he answered, that though he had a great regard to
what the judges then said, for the Court was then composed of very knowing men,
yet that opinion was not judicial, for such matter was not then in question," Savile v.
Roberts (1698) 1 Ld. Raym. at p. 379 per Holt, C.J. ; and at p. 380 he said that
Bridgman, C.J., " was against all such actions."
1 Waterer v. Freeman (1618) Hob. 205, 266.
2 Steer v. Scoble (1624) Cro. Jac. 667 ; Daw v. Swaine (1669) 1 Sid. 424.
3 Hob. at p. 267.
4 (1624) Cro. Jac. 667 ; cp. Barker v. Braham (1779) 2 W. Bl. 867, where, in a
case similar to Steer v. Scoble, the action was brought for false imprisonment ; the
modern distinction is most clearly explained by Willes, J., in Austin v. Dowling
(1870) L.R. 5 CP. at pp. 538-54I-
5 Cro. Jac. 7 — there reported ex relatione Popham, C.J. ; see generally on this
topic Winfield, Present Law of Abuse of Legal Procedure 181-187.
6 Payne v. Porter, Cro. Jac. 490. 7 Cro. Eliza 563.
8 Style 378 ; Rolle, C.J., at p. 379 said, " an action upon the case lies for bringing
an appeal against one in the Common Pleas, though it be coram non judice, by reason
MALICIOUS PROSECUTION 389
in these circumstances. Tn two cases, one of Charles I.'s1 and
the other of Charles I I.'s reigns,2 a distinction was drawn between
the rule laid down in the last cited case, and cases where the in-
dictment was bad on the face of it. In the latter class of cases it
was held an action on the case would not lie, so that in these
cases the rule applicable to the statutory writ and to the action on
the case was the same. Possibly this distinction was drawn with a
view of discouraging these actions ; but it was clearly a distinction
without a difference, and we shall see that it was overruled 3 both
by Holt, C.J., in Savile v. Roberts* and by Parker, C.J., in Jones
v. Giving Thus the rule that the action on the case both for
malicious indictment and for malicious abuse of legal process would
lie, if the proceedings had in any way terminated in the plaintiff's
favour, was established. The necessity for showing an acquittal by
verdict was confined to the statutory writ, and, like that writ, be-
came in practice absolete.
(iii) We have seen that, in the mediaeval period, it had been
settled that, as the gist of the action on the case was not the con-
spiracy but the damage, it could be brought against one defendant-
only.6 Does it not follow, therefore, that the action lay, even if
the malicious indictment had been preferred by one defendant
only ? In other words, is not the conspiracy merely a circumstance
of aggravation, and not a necessary part of the cause of action ?
This question caused much division of judicial opinion in Eliza-
beth's reign. In 1588, in the case of Knight v. German,1 VVray,
C.J., held that the action lay, though the indictment had been pre-
ferred by one defendant only ; but Schute and Gawdy, J. J., held
that it would not, "for then every felon that is acquitted will sue
an action against the party." Later, however, Gawdy, J., seems
to have changed his opinion.8 Nevertheless in 1597 Anderson,
C.J., and Beaumont, J., expressed the opinion that, though an
action lay if two or more had conspired to prefer an indictment,
no action lay where one only had preferred it — which opinion
Walmsley, J., doubted.9 But though, as Parker, C.J., said in Jones
of the vexation of the party, and so it is all one whether here were any jurisdiction or
no, for the plaintiff is prejudiced by the vexation."
1 Hunt v. Line (1633), cited Jones v. Givin (1713) Gilbert Cases at p. 212.
2 Chamberlain v. Prescot, as reported by Holt, C.J., in Savile v. Roberts (1098)
1 Ld. Raym. at p. 380.
3 Below 391. * (1698) 1 Ld. Raym. 374.
5(i7i3) Gilbert Cases 185.
6 Vol. iii 406-407 ; Skinner v. Gunton (1669) 1 Wins. Saunders at pp. 229, 230.
7 Cro. Eliza. 70. 8 Ibid, 134.
9 " Where two or more conspire together to procure one to be indicted for
felony or trespass, and he is afterwards acquitted, it shall be intended by law to be
maliciously done, for which conspiracy lies ; but no action lies where one only prefers
a bill of indictment ; for it would be in hinderance of justice. . . . WaJmsley
doubted thereof; for the declaration supposed it to be malitiose," Francis Throg-
morton's Case Cro. Eliza, at p. 564.
390 CRIME AND TORT
v. Giving the struggle "was strong and late when the prosecution
was by the party suffering and there was no conspiracy," it seems
to have been settled in the course of the seventeenth century,
perhaps by analogy to the practice of the Star Chamber, that an
action would lie if an indictment were preferred by one only.2
Indeed, it was hardly possible to come to any other conclusion,
as it was clearly settled that the action lay for malicious accusations
of offences under the degree of felony, and for other malicious
abuses of the process of the courts, though committed by one
person only. In fact, the idea that the conspiracy to indict ma-
liciously was the gist of the offence had vanished with the disuse
of the statutory writ of conspiracy ; and the idea that the conspiracy,
as such, was an offence had become associated with the new
crime of conspiracy, which, as we have seen,3 rested upon a very
different basis. The result was that the wrong had come to con-
sist, not in the conspiracy, which, if present, was only a circum-
stance of aggravation, but in the act of malicious prosecution, or
malicious abuse of process. This fact is very clearly illustrated
by the ruling in Manning v. Fitzherbert in 1633,4 that, as the
action was brought for the unlawful act causing damage to the
plaintiff, it could not be objected to an action for such unlawful
act, that different causes of action, i.e. for the unlawful act and
for the conspiracy, had been improperly joined.
These developments of the action on the case for con-
spiracy were giving rise to new varieties of tort. But, though
they were all tending in this direction, the cases were neither
wholly clear nor wholly consistent. Having regard to the
popularity of these actions for malicious prosecution, and the
danger to the proper administration of the criminal law of al-
lowing them too freely,5 this new branch of law needed a clear
and authoritative statement. This statement was furnished in
1699 by Holt, C.J., in the case of Savile v. Roberts? That case
defined the conditions under which the action on the case could
1 (1713) Gilbert Cases at p. 209.
2 See Manning v. Fitzherbert (1633) Cro. Car. 271 ; Carlion v. Mill (1633) Cro.
Car. 291 ; Norris v. Palmer (1675) 2 Mod. 51 ; cp. Pollard v. Evans (1679) 2 Shower,
50, where the statutory writ is contrasted with the action on the case.
3 Above 379-384.
4 Cro. Car. 271. This was an action on the case for a false and malicious ac-
cusation of felony before a justice of the peace ; on its being moved in arrest of judg-
ment that an action for words, and an action in the nature of a conspiracy, had been
joined, the court held that, " it is not in nature of a conspiracy, but an aggravation of
the false and malicious accusation."
6 In 1664 the judges refused to give out copies of indictments for felony unless on
special order, " for the late frequency of actions against prosecutors . . . deterreth people
from prosecuting for the king upon just occasions," Orders of the Judges in 1664,
Kelyng 3 ; and this practice was followed by Holt and in Blackstone's day, see
Thayer, Evidence 230.
8 (1693) 1 Ld. Raym. 374 ; S.C. 5 Mod. 405, Carth. 416.
MALICIOUS PROSECUTION 391
be brought for a malicious prosecution, and thus put this tort
upon its modern basis.
It was in substance laid down that, to succeed in this action,
the plaintiff must show, firstly, one of three sorts of damage —
damage to his fair fame, damage to his person " as when a man is
put in danger to lose his life limb or liberty," ! or damage to his
property " as when he is forced to expend his money in necessary
charges to acquit himself of the crime of which he is accused."2
Secondly, he must show " express malice and iniquity in the
prosecution." 3 Thirdly, the ground of the action is not the con-
spiracy but the damage, and therefore the action will lie, though
the indictment be preferred by a single defendant only.4 Fourthly,
no action will, as a rule, lie for bringing a civil action maliciously.
Under the old law the amercement of the plaintiff who thus sued
was, and under the modern law the costs awarded to a successful
defendant are, held to be a sufficient compensation.5 But, fifthly,
the bringing of an action maliciously, or a malicious use of the
process of the court, may give rise to an action on the case, if
special damage be proved.6 Lastly, it was assumed, as it is
assumed in all the cases both on the statutory writ of conspiracy
and on the action on the case, that the proceedings must have
terminated in the plaintiff's favour. All these propositions were
affirmed in the elaborate judgment of Parker, C.J., in 171 3 in the
case of Jones v. Giving in which an elaborate historical account is
given of the growth of this branch of the law.
Thus the common law tort of conspiracy, founded upon the
statutory writ and the action upon the case, developed into the
torts of malicious prosecution, and other malicious abuses of the
process of the court It remains to enquire whether or not the
law has recognized a new tort of conspiracy, corresponding to the
new crime of conspiracy which had emerged during this period.
1 1 Ld. Raym. at p. 378. ' Ibid.
s Ibid at p. 381. 4 Ibid at p. 378.
* *' The common law has made provision to hinder malicious frivolous and
vexatious suits, that every plaintiff should find pledges, who were amerced if the claim
was false. . . . But that method became disused, and then to supply it, the statutes
gave costs to the defendants. And though this practice of levying of amercements be
disused, yet the Court must judge according to the reason of the law, and not vary
their judgments by accidents. But there was no amercement upon indictments, and
the party had not any remedy to reimburse himself but by action," ibid at p. 380.
6 " If A sues an action against B for mere vexation, in some cases upon particular
damage B may have an action ; but it is not enough to say that A sued him falso et
malitiose, but he must show the matter of the grievance specially, so that it may
appear to the Court to be manifestly vexatious," ibid ; changes in procedure have
rendered this cause of action less possible, see Quartz Hill Gold Mining Co. v. Eyre
(1883) 11 Q.B.D. at pp. 6S9-691 per Bowen, L.J. ; but it is still possible, see Clark and
Lindsell, Torts (4th ed.) 659-660.
7 Gilbert Cases 185.
392 CRIME AND TORT
(3) The modern tort of Conspiracy.
The question whether there is such a tort as conspiracy is
essentially a modern question. Very little authority can be found
on it before the latter half of the nineteenth century; and the
reason for this dearth of authority in the earlier, and its extent in
the later period, is to be found in the course of the legislation as
to the application of the doctrine of criminal conspiracy to the
activities of combinations of employers and workmen. In 1875
the Legislature enacted that a combination to do an act in con-
templation or furtherance of a trade dispute, should not be indict-
able as a conspiracy, if the act committed by one person would
not be a crime.1 But it was held that this enactment did not
prevent a person injured by such a conspiracy from bringing a
civil action for the damages caused by it.2 Hence the tort of
conspiracy was brought into great prominence. But, in spite of
frequent discussions and decisions in all the courts from the House
of Lords downwards, neither its existence as a specific tort, nor, if it
exists, its precise definition was settled till quite recently. Full dis-
cussion of the problem would here be out of place, as it is essentially
a problem belonging to the legal history of the nineteenth century.
But, nevertheless, the legal history of this period suggests one or two
considerations, to which perhaps sufficient weight has not been at-
tached in the many discussions to which the problem has given rise.
Technically this is a problem of the same kind as that to which
I have already alluded in dealing with the history of defamation.3
A crime had been developed by the court of Star Chamber, and,
on the abolition of that court, the crime as thus developed had
become a common law misdemeanour. If that misdemeanour was
committed, and a person was damaged thereby, could he bring
an action in tort ? If he could, what was the nature of the tort ?
What was the connection, if any, between the rules applicable to
this tort, and older rules of the common law as to the same or
similar wrongs ? Were necessarily all the rules applicable to the
crime applicable also to the tort ?
We have seen that, in the case of defamation, the courts had
come to the conclusion that, if the defamation was written, so that
the crime of libel had been committed, an action in tort lay at the
suit of the injured party, without the need to allege and prove
special damage.4 In other words, the development of the crime
of libel had given birth to the tort of libel. No doubt this decision
was partly due to the extremely unsatisfactory character of the
tort which had been developed in and through the action on the
1 38. 39 Victoria c. 86 § 3.
- Quinn v. Leathern [1901] A.C. at p. 542 per Lord Lindley.
y Above 361-364. * Above 364-365.
THE MODERN TORT OF CONSPIRACY 393
case. But the technical justification for the invention of the new-
tort was the fact that written defamation was a crime. It would
seem that exactly the same principle is applicable to conspiracy ;
and in the case of Pedro v. Barrett in 16971 it seems to be
admitted. The report of that case runs as follows : — " A brought
case against B for falsely and maliciously procuring him to be
indicted for conspiracy to lay a bastard child to B, of which indict-
ment upon trial A was acquitted. After verdict for the plaintiff
upon not guilty pleaded, adjudged that the action well lay, for the
conspiracy was a thing punishable at common law by fine and im-
prisonment" No doubt these words were spoken of the common
law action on the case for a conspiracy, which, as we have seen,
developed into the tort of malicious prosecution ; but the general
principle there laid down is applicable to the new crime of con-
spiracy, which had been taken over by the common law courts
from the Star Chamber.
But, if the common law courts were to recognize a tort of con-
spiracy corresponding to the crime, had this tort any connection
with the older tort of conspiracy remedied by the action on the
case ? It would seem, at first sight, that the connection was
slender. The element of conspiracy had vanished from the older
tort, and that older tort had become the tort of malicious prosecu-
tion. But nevertheless the older tort left, it seems to me, one
permanent legacy. The gist of the action on the case was the
damage suffered ; and it was because this was the gist of the
action that the element of conspiracy had been eliminated. In
Savile v. Roberts2 it was argued that conspiracy, being "of an
odious nature," was "sufficient ground for an action by itself."
But to this argument Holt, C. J., replied, " that conspiracy is not
the ground of these actions, but the damages done to the party ;
for an action will not lie for the greatest conspiracy imaginable,
if nothing be put in execution ; but if the party be damaged the
action will lie." Similarly, there has never been any doubt that
the gist of the tort of conspiracy corresponding to the new crime
of conspiracy, if such a tort exists, is the damage suffered ; and
that therefore an action for it can be brought, just as the old action
could be brought, against one defendant.3
Now this has a very material bearing on the question whether
or not all the rules applicable to the crime are also applicable to
the tort. The fact that the conspiracy is the essence of the crime,
while the damage is the essence of the tort, must make a great
deal of difference in the rules applicable. In the case of libel,
1 1 Ld. Raym. 81. 2 (1698) 1 Ld. Raym. at p. 378.
3 Quinn v. Leathern [1901] A.C. at p. 542 ; cp. Skinner v. Gunton (1669) 1 W'ms.
Saunders at pp. 229, 230.
394 CRIME AND TORT
where the difference between the essential features of the crime
and the tort are not so pronounced, the law has recognized this
difference. Libel is regarded as a crime, because libels, if un-
punished, tend to promote breaches of the peace ; and therefore
a publication to the person defamed suffices, and the truth of the
defamatory statement was not a defence, and is not now a defence,
unless it is for the public benefit that the truth should be known.
On the other hand, the gist of libel regarded as a tort is the
damage inflicted ; and therefore the publication must be to some
third person, and truth is a defence. Now it would seem that
somewhat similar considerations should be applied to determine
the question of the relation of the crime of conspiracy, to the right
of the party injured by a conspiracy to sue in tort. In both cases
we must look at the nature of the wrongs redressed by the
criminal and civil remedy respectively. But the application of
these considerations will not produce quite the same results as in
the case of libel, because, as I have said, the essential features of
conspiracy considered as a crime differ more markedly from con-
spiracy considered as a tort, than is the case with the crime and
the tort of libel. The crime consists in the conspiracy ; but the
damage is the gist of the action by the party injured by the
conspiracy — the damage, that is, flowing from the unlawful acts
done by each and all of the conspirators in pursuance of their
joint design. What we must look at, therefore, in order to
establish a cause of action, is not so much the conspiracy, as the
quality of the acts and the damage flowing therefrom. It follows that
the conspiracy is important, not as establishing directly a cause of
action in tort, but, firstly, sometimes as showing that the acts done
were unlawful, because they amounted to a criminal conspiracy ; and,
secondly, always as an element in estimating the damage suffered.
This seems to be the view expressed in Mr. Arthur Cohen's
memorandum on the civil action of conspiracy, which was con-
curred in by Lord Dunedin and Sir Godfrey Lushington ; x and
we shall see that the case of Sorrellv. Smith* which contains the
latest pronouncement of the House of Lords on this subject, lays
down the law substantially in this way.
But this definition of the scope of the action of conspiracy
has not been reached without controversy. It may, I think, be
said that two somewhat divergent views as to its scope were taken
before the decision in the case of Sorrell v. Smith?
1 " There may be cases where the combination or conspiracy to injure is itself a
misdemeanour, although the acts agreed to be done are neither actionable torts nor
criminal offences. ... In such cases it may be said that the conspiracy which is the
misdemeanour is the ground of the civil action. These however are the only cases in
which it can in propriety be said that a civil action may be maintained for conspiracy,"
Report of Royal Commission on Trade Disputes (1906) at p. 20.
2 [x925] A.C. 700. 3 Ibid.
THE MODERN TORT OF CONSPIRACY 395
(i) According to one set of authorities, conspiracy does not
exist at all as an independent tort. The tort consists, not in
the conspiracy, but in the unlawful acts causing damage done by
each and all of the conspirators. This view would seem
to have the support of Lord Justice Scrutton,1 of Astbury-
and McCardie, JJ.,3 and of Sir F. Pollock.4 If this con-
clusion be true, it would follow that conspiracy does not exist
as an independent tort. The tort consists in the unlawful acts
causing damage done by each and all of the parties to a conspiracy ;
and the conspiracy is only important as a circumstance to be
taken into account in considering the legality of the act done, and
the damage inflicted. If this be the law, the modern development
of the civil remedy for acts constituting a criminal conspiracy
presents a very close historical parallel to the development,
during the seventeenth century, of the tort remedied by the older
action on the case for a conspiracy. Just as in the case of the
older remedy the element of conspiracy ceased to be the gist of
the action, when it came to be seen that its gist was the damage
suffered by the unlawful act of the defendant, and the tort came to
consist in the commission of the unlawful act — in the malicious
prosecution or the malicious abuse of the process of the courts ;
so, in the case of the modern tort of conspiracy developed from
the new crime of conspiracy, the element of conspiracy ceases to
be the gist of the action for exactly the same reason ; and the
tort comes to consist, not in the conspiracy, but in the unlawful
acts which have caused damage.
(ii) According to another set of authorities there is one case
in which the existence of a conspiracy is vital to existence of a
cause of action. The clearest statement of this view is to be
found in Lord Justice Atkin's judgment in the case of Ware
and De Freville v. Motor Trade Association. The Lord Justice
said : 5 "It appears to me to be beyond dispute that the
effect of the two decisions in Allen v. Flood and Quinn v. Leathern
is this : that on the one hand a lawful act done by one does not
become unlawful if done with an intent to injure another, whereas
an otherwise lawful act done by two or more in combination does
1 " Conspiracy appears to me to become actionable when the end is unlawful and
causes damage, or the means by which a lawful end is pursued are unlawful and cause
damage, and not to be actionable when neither the end nor the means are unlawful.
It is said that the end is unlawful if it is to cause damage to another. My comment
on this is that it is not true," Ware and De Freville v. Motor Trade Association [1921]
3 K.B. at p. 70.
■ Valentine v. Hyde [1919] 2 Ch. at pp. 149-150.
3 Pratt v. British Medical Association [1919] 1 K.B. at pp. 255-260.
4 Torts (12th ed.) 321-329.
5 [x921] 3 K.B. at pp. 90-91 ; and see ibid at p. 84; the same view was expressed
by Sargent, J., in the case of Reynolds v. Shipping Federation Ltd. [1924] 1 Ch. at
p. 40 ; see also an article by Mr. Cheshire in L.Q.R. xxxix at pp. 207-211.
396 CRIME AND TORT
become unlawful if done by two or more in combination with
intent to injure another. That it is the combination to injure that
makes the act unlawful is so plainly laid down in Quinn v. Leathern
that it seems to me . . . useless ... to suggest that the fact of
combination in that case was only an incidental feature of the
case, and not the gist of the matter." It would seem to follow
that, according to this view, the existence of a conspiracy may
make acts, otherwise lawful, unlawful, if they are done with the
intent to injure another person ; so that, on this view, it may be
contended that there is in this case an independent tort of
conspiracy.
This year, in the case of Sorrell v. Smith,1 Lord Dunedin has
adjudicated upon the whole matter ; and it seems to me that the
result of his judgment is a very skilful reconciliation of these two
views.2 After expressly approving Lord Justice Atkin's state-
ment of the law,3 he points out that it must not be forgotten
that a combination formed with intent to injure another is a
criminal conspiracy, and so an unlawful act. If a civil action for
conspiracy is based on the existence of a criminal conspiracy, a
criminal conspiracy must be proved. Such a conspiracy exists
if several persons combine to do acts (lawful or unlawful) with
intent to injure another. It does not exist if they do lawful acts
which injure another person, with the intent, not of injuring that
other person, but only of furthering their own interests.4 It is
true that in cases in which the element of conspiracy is not
present, intent to injure another will not make an otherwise
lawful act unlawful. But, where a conspiracy is proved to exist,
it is this mens rea — the intent to injure — which, in the case ot
the crime of conspiracy, as in the case of other crimes, makes all
the difference. It will make otherwise lawful acts done in com-
bination criminal, and so unlawful. It comes therefore to this —
an intent to injure may make acts illegal as a criminal conspiracy;
and so these acts may give rise to an action in tort at the suit of
the person damaged thereby, although the same acts if done by
one person would give rise to no cause of action, because the
existence of the conspiracy makes acts, otherwise legal, illegal.
It is obvious that this manner of reconciling the authorities to
some extent admits the truth of the first view, by allowing that
the gist of the action is the unlawful acts causing damage, and by
making the element of conspiracy essential only as proof that the
acts done were unlawful — essential only, that is, in those cases in
which the existence of a criminal conspiracy is the only cause of
1 [1925] A.C. 700. - Ibid at pp. 723-726. 3 Ibid at p. 719.
4 Mogul Steamship Co. v. McGregor Gow and Co. [1892] A.C. 25 ; Sorrell v.
Smith [1925] A.C. 700.
MAINTENANCE 397
their illegality. It follows that, as was said in 1906, it is only in
these cases that " it may be said that the conspiracy is the ground
of the civil action." x It is only in these cases therefore that con-
spiracy can be said to exist as an independent tort.
This controverted question as to the existence and ambit of
the tort of conspiracy has thus, to a large extent, been settled,
after half a century of keen dispute. On that settlement two
observations may, I think, be made. Firstly, it assumes that the
crime of conspiracy is very wide in its ambit ; 2 for it assumes
that a combination to do any act is a criminal conspiracy, if the
intent of the persons combining is to injure another. Secondly,
it makes one law for the individual, and another for a com-
bination of individuals ; for it distinctly decides that acts done
in combination, if done with intent to injure, are actionable,
although the same acts are not actionable if done by one person.
That this may lead to very anomalous results is clear ; for, as
Lord Lindley said in Quinn v. Leathern, if one man acting alone
could produce the same effects as several acting together, he
ought to be liable in the same way.3 This anomaly would, it is
true, have been avoided, if Allen v. Flood* had been decided
differently, and the views of Lord Esher in Temperton v. Russell '5
had been upheld. But it may well be that in that case the law
would have laid itself open to the criticism that it restricted un-
duly individual liberty of action ; and it is difficult to see how
any such views could be reconciled with the ratio decidendi of
Mayor of Bradford v. Pickles* and Allen v. Flood? Probably, in
the existing state of the authorities, the solution reached, though
it may conceivably lead to some anomalous results, is the best
compromise. At any rate it has the merit of recognizing that
there is generally a danger in concerted action, which is not
generally present in individual action — of recognising, in other
words, the root principle upon which the whole law of conspiracy
rests.
Maintenance
I have already spoken of the mediaeval development of the
offence of maintenance. We have seen that, as the result of that
development, it had become a recognized offence redressible both
by a criminal and a civil remedy ; and that, when Coke wrote, it
1 Above 394 n. i. a Above 381.
3 " One man exercising the same control over others as these defendants had
could have acted as they did, and, if he had done so, I conceive that he would have
committed a wrong towards the plaintiff, for which the plaintiff could have maintained
an action," [1901] A.C. at p. 537; cp. Sorrell v. Smith [1925] A.C. at p. 713 per Lord
Cave, and at pp. 740-741 per Lord Sumner.
4 [1898] A.C. i. * [1893] 1 Q.B. at pp. 728-730.
« [1895] A.C. 587 ; below 448. » [1898] A.C. 1.
398 CRIME AND TORT
had assumed substantially its modern form.1 That it had then
assumed its modern form was due principally to three causes. In
the first place, we have seen that the jurisdiction of the Council
and the Star Chamber had sternly repressed those abuses of legal
procedure, which had made maintenance one of the most crying
evils of the later mediaeval period.2 In the second place, changes
in the law of procedure, and more especially the beginnings of
the modern law of evidence,3 had rendered obsolete some of
the mediaeval cases, which had laid it down that the mere giving
of unsolicited testimony would amount to maintenance.4 In the
third place, we have seen that it was beginning to be recognized
that it was not every assignment of a chose in action which could
be attacked on the ground of maintenance.5 It is true that
reminiscences of the period when maintenance was so crying an
evil, that to relax in any way these rules as to non-assignability,
would have operated to increase it, lived on in this branch of the
law long after it had become a comparatively rare offence ; 6 and
it is true also that the fact that many of the older rules were
obviously ill suited to a more settled age sometimes induced
judges to speak as if they thought that it was a semi-obsolete
offence.7 But though, for these three reasons, the offence had
both altered its character and become far less frequent, it is an
offence which in any political society is as ineradicable as larceny
or homicide. Therefore a thin stream of cases, from the seven-
teenth to the twentieth century, has recognized it, and defined
its modern incidents.
It is a commonplace of legal history that the form of the
remedies given to redress a particular wrong, or assert a par-
ticular right, has had a decisive influence in settling the form
and content of that wrong or that right. But it is no less true
that changes in political and social conditions have often affected
the litigant's choice of the remedies open to him ; and thus the
disuse of some of the remedies provided by the law, and the more
extended use of others, have operated to make a change in the
character of the wrong redressed, or the right protected, by these
remedies. We get a particularly good illustration of this process
of development in the case of maintenance. We have seen that,
all through the Middle Ages, and right down to Henry VII I. 's
reign, it was treated as a criminal offence, for which the offender
could be punished, or for which (under Henry VIII.'s statute) an
action for a penalty could be brought.8 But we have seen that,
1 Vol. iii 395-399. a Vol. v 201-203. 3 Vol. ix c. 7 § 1.
4 Vol. i 334-335 5 vol. iii 398. 5 Vol. vii 536. 6 Ibid 533, 535.
7 See the remarks of Buller, J., in Master v. Miller (1791) 4 T.R. at pp. 340-341.
8 32 Henry VIII., c. 9 § 3 ; vol. iii 396-397 ; vol. iv 521 ; vol. v 202.
MAINTENANCE 399
during the Middle Ages, it was recognized that it could also be
redressed by an action at the suit of the party.1 The law is so
stated by Coke in the seventeenth century,2 and by Hawkins in
the eighteenth century ; 3 and, when maintenance ceased to be so
crying an evil, the criminal remedy (though still available) tended
to drop out, and to be replaced by the action for damages. Thus
in modern law maintenance came to be regarded as a tort rather
than as a crime. Naturally the question arises, what is the
nature of this tort ?
No doubt its main essential features are the same as those of
the crime. We have seen that the definition of the offence, both
at common law and according to the law administered in the
Star Chamber, and the cases in which, on account of relationship
or otherwise, maintenance was justifiable, were substantially settled
at the beginning of the seventeenth century.4 But the question
still remains whether all the essential features of the tort re-
dressible by the civil action, are the same as the criminal offence
created by that long line of mediaeval statutes which end with the
statute of 1 540.5 This, it will be observed, is a problem of a very
similar kind to that with which we have been faced in dealing
with the history of defamation6 and conspiracy." All the con-
ditions of the problem are not, it is true, exactly the same. In
the first two cases we have two lines of development — a line of
development, mainly civil, in the common law courts, and a line
of development, mainly criminal, in the Star Chamber; and we
were obliged to consider the relation between the criminal offence
developed in the latter court, and the civil offence which was later
developed from it. In the case of maintenance we have an
offence created by statutes, which were enforced both by the
common law courts and the court of Star Chamber ; and this
offence could be treated as either a criminal offence punishable on
an indictment, or as a civil wrong redressible by an action for
damages. Gradually the criminal remedy dropped out, and the
offence came to be treated as a tort redressible by an action for
damages. In the first two cases the civil action was clearly an
action on the case, in which damage was the gist of the action ;
but in the case of maintenance it was not certain that the civil
action was not an action in the nature of an action for trespass, in
which nominal damages could be recovered. But, in spite of
1 Vol. iii 397-398- 2 Second Instit. 208.
3 " All offenders of this kind are not only liable to an action of maintenance at
the suit of the party grieved, wherein they shall render such damages as shall be
answerable to the injury done to the plaintiff, but also they may be indicted as
offenders against public justice," P.C. Bk. i c. 83 § 35.
* Vol. iii 398 ; vol. v 202-203. 532 Henry VIII. c. 9.
15 Above 361-364. " Above 392-394.
400 CRIME AND TORT
these differences, in all these cases the problem raised was the
same — whether or not all the features of the tort were the same
as all the features of the criminal offence.
Curiously enough this problem was not fully considered by the
courts till 1 91 9, when it was raised by the case of Neville v. the
London Express Newspaper Ltd} That case raised the two closely
connected questions (i) whether an action for maintenance would
lie in the absence of proof of special damage ; and (ii) whether the
success of the maintained litigation was a bar to the action.
(i) On principle it would seem that, if the civil action for main-
tenance is to be regarded as an action in the nature of an action
on the case, damage is its gist ; and that, on that hypothesis, the
decision of the majority of the House of Lords,2 that the action did
not lie in the absence of the proof of special damage was right.
The opinion of the two dissentient lords seems to have proceeded
on the ground that, maintenance being admittedly illegal, the law
should give a right of action in tort for nominal damages as in the
case of trespass or libel, " since the mere invasion of the plaintiff's
legal right imports damage, and is sufficient to maintain the action." 3
But the fact that conduct is illegal, or even criminal, does not
necessarily prove that an action in tort for nominal damages will
lie. This is clearly the law in the case of conspiracy, as the passage
from the case of Savile v. Roberts} cited above, and the modern
cases 5 show. No doubt an opposite conclusion was come to in
the case of libel. But that, as we have seen,6 was largely due to
the need for remedying the defects of the common law action on
the case, which had wholly failed to provide a satisfactory civil
remedy for defamation. The action is, as we have seen, somewhat
anomalous ; and the fact that an action on the case for defamation
lies for nominal damages is the result of the peculiar history of this
tort. On the other hand, if the civil action is to be regarded, not
as an action on the case, but as a statutory or common law action
analogous to trespass, there is a good deal more to be said for the
view that an action would lie for nominal damages. The obscurity
which hangs about the nature of the civil action naturally gives rise
to differences of opinion. But, on the whole, whatever the earlier
law may have been, the action of maintenance had probably come,
in the eighteenth century, to be regarded as similar to other actions
on the case ; and, if that be so, the general rule is that laid down
by Holt, C.J., in Savile v. Roberts. It follows that the general
Jfigig] A.C. 368.
2 Lords Finlay, Shaw, and Phillimore; Lords Haldane and Atkinson dissenting,
3 Per Lord Atkinson at p. 405.
4 (1698) 1 Ld. Raym. at p. 378, cited above 393.
5 Above 395-397. 6 Above 364.
MAINTENANCE 401
rule was quite properly applied by the majority of the House of
Lords to the case of maintenance.
(ii) On the other hand, the reasons given by the majority of
the House of Lords for holding that the success of the maintained
action is not a bar to a right of action for maintenance, are by no
means convincing. They proceed mainly on the ground that, as
all maintenance is a wrong, the success or failure of the action
maintained can have nothing to do with the question whether or
no a wrong was committed.1 But, to argue from the proposition
that maintenance is a wrong, to the conclusion that a plaintiff can
sue for damages, in a case where the action or defence maintained
was just, comes very near to contradicting the rule, upheld by the
majority of the House, that such an action will not lie for nominal
damages. It may well be that maintenance is a wrong, and that
the criminal offence is committed, whether or no the maintained
litigation has succeeded or failed.2 It may well be that the same
conclusion follows, if maintenance is a tort like trespass, for which
an action will lie for nominal damages. But, if it is only a tort when
accompanied by special damage, if the damage, that is, is the gist of
the action, it does not follow that, because the crime is committed,
the tort is likewise committed, when the maintained litigation has
succeeded. We have seen that, in the case of the torts both of
libel and conspiracy, it does not follow that, because the crime has
been committed, the tort has also been committed. In both cases
the conditions under which an action of tort will lie differ from
the conditions under which an indictment can be preferred. Lord
Phillimore, one of the Lords who dissented from the majority of
the House on this point, very properly used the analog}' of libel
to illustrate his argument ; 3 and he might equally well have used
the analogy of conspiracy. The result is that the House has com-
mitted itself to two rules which, if not actually contradictory, are
extremely hard to reconcile. For, though the success of the main-
tained litigation is not a bar to the action, it is clear that its
success will generally prevent the plaintiff from claiming anything
but nominal damages ; 4 and for nominal damages, the action,
according to the first proposition, does not lie.
In fact the House of Lords, though it appealed to history, and
even to the Year Books, hardly perceived that the problem was
essentially similar to the problem which the development of the
1 See [1919] A.C. at pp. 383-386, 392-393, 397-404.
2 Coke, dealing with the case of one who had laboured a jury, says, " and whether
the jury pass for his side or no, or whether the jury give any verdict at all, yet he shall
be punished as a maintainor or embraceor either at the suit of the king or party," Co.
Litt. 36ga ; from the use of the word " punished " it would seem that Coke is referring
to the criminal remedy.
3 [1919] A.C. at p. 434. * See ibid at pp. 380-381, 393, 395.
VOL. VIII.— 26
402 CRIME AND TORT
law of crime and tort in the seventeenth century had raised in the
case both of defamation and conspiracy. Given an offence which
was a crime, on what conditions could a person injured by the
crime sue in tort for any damage which he had suffered? If it
had looked at the question in its proper historical perspective, it
could hardly have avoided coming to a less contradictory con-
clusion than that at which it has actually arrived ; for it would
have avoided the error into which, as it seems to me, many of the
Lords fell, of supposing that, because an act is a crime, the same
act must, without qualification, necessarily be a tort. If it had
grasped this principle it would probably have ruled that, just as
the conditions under which the tort and crime of libel or conspiracy
can be committed differ, so do the conditions applicable to the tort
and crime of maintenance ; that just as publication to a third
party is needed to constitute the tort, though not the crime of
libel, and just as an act causing damage to the plaintiff is needed
to constitute the tort, though not the crime of conspiracy ; so the
failure of the maintained litigation is needed to constitute the tort,
though not the crime, of maintenance.
§ 4. Legal Doctrines Resulting from the Laws against
Religious Non-Conformity
In the preceding volumes of this work I have given some
account of the statutes which penalized various forms of non-
conformity to the established church.1 In this section I propose
to give some account of the developments of legal doctrine to
which these statutes helped to give rise, and of the corresponding
changes in that doctrine which followed upon their repeal.
The result of these statutes was to create a number of offences,
which may be called offences against either the religion of the
state, or the Christian religion in general. If we look at the
dates at which they were enacted, it will be clear that the history
of these offences, regarded as offences against the law of the state,
as distinct from offences against the ecclesiastical law, does not
begin till the Reformation period. During the Middle Ages
such offences were essentially matters for the ecclesiastical law,
and the function of the state was limited to lending the strength
of its secular arm to enforce the decrees of the church. We have
seen that the state recognized and obeyed the law of the church,
which, till the Reformation, was the papal canon law ; 2 and that
it was because it so recognized it that the writ de haeretico com-
burendo must be regarded as existing at common law.3 The fact
1 Vol. i 616-619 ; vol. iv 494-496, 506-507 ; vol. vi 196-203, 404.
2 Vol. i 580-588 ; vol. ii 304-306. 3 Vol. i 616-618.
RELIGIOUS NON-CONFORMITY 408
that the Reformation of the English church was carried through
with the minimum of change, so that the thesis of its continuity
could be maintained both by lawyers and ecclesiastics ; l and the
fact that English law, during the sixteenth and seventeenth
centuries, was likewise continuously developed from its mediaeval
principles — ensured that, at the outset, the attitude of the law
towards these offences against religion should be essentially
mediaeval. During the Tudor period, as in the mediaeval period,
Church and State were regarded, from many points of view, as a
single society which had many common objects ; - and the two
members of that single society were still regarded as bound to
give one another assistance in carrying out those common objects.
The church must help the state to maintain its authority, and the
state must help the church to punish non-conformists and infidels.
The church was the church of the state, and membership of it
was therefore a condition precedent for full rights in the state ;
the king was the supreme governor of the church ; 3 and the law
of the church was the king's ecclesiastical law.4 But, if the
church is thus regarded as an integral part of the state, if the
church's law is as much the king's law as the law of the state,
a fortiori Christianity must be regarded as part of the law of
England. In fact, not only Christianity, but also that particular
variety of Christianity taught by the Anglican church, was part of
that law.5
In our day this theory of the relationship between Church and
State has almost entirely disappeared. It is true that there is
still an established church ; that the king is still its supreme
governor and the defender of its faith ; that its law is still the
king's ecclesiastical law, and an integral part of the law of
England.6 But, like many other parts of the law and con-
stitution of England, these are survivals of an older order, from
which all real meaning has departed, with the abandonment of
1 Vol. i 591. 2 Vol. iv 36-37, 47-48, 81-83.
3 Vol. i 594. * Ibid 594-590-
'Professor Kenny in Cambridge Law Journal i 130-131 has contended that the
maxim or rule that " Christianity is part of the law of England " is derived from
Finch's book on the Common Law (vol. v 399-401) ; and that Finch derived it from
a statement made by Prisot, C.J., in Y.B. 34 Hy. VI. Pasch. pi. 9, p. 38, which is
probably no authority for this wide proposition. But for the reasons which I have
given in the text I think that the rule or maxim would, from the earliest times, have
been accepted as almost self-evident by English lawyers. It is assumed both by
Fortescue, vol. ii 56g, n. 3, and by St Germain, vol. iv 279-280 ; and it is at the root
of the old distinction between mala prohibita and mala in se, vol. vi 218-219. But,
for that very reason, it was difficult to find an express authority for it, see the dictum
of James, L.J., cited vol. ii 470 ; and it was probably because Finch was hard put to
it to find any authority precisely in point, that he cited this Y.B. For these reasons I
cannot agree with Professor Kenny that Finch's misquotation disproves the existence
of the doctrine.
6 Vol. i 595.
404 CRIME AND TORT
that mediaeval theory of the relationship of Church to State,
to which they owed their origin.1 That that theory has been
completely abandoned is clear from the fact that the state now
assumes the attitude of a Gallio to religion. It gives an equal
measure of protection to all sects, whether religious or anti-
religious, provided that their tenets do not involve a breach of
its laws civil or criminal. It refuses to favour one more than
another ; and practically the only coercive authority which it
exercises, is in respect of those whose methods of propaganda
are sufficiently coarse and offensive to bring them within the
modern rules of the criminal law relating to blasphemous libel.
This vast change in the relations of Church and State has
been mainly the result of that policy of "conservatism combined
with concession," which has been pursued during the nineteenth
century.2 But that policy has its roots in the past; and the
modern relations of Church and State are in fact the result of
some four centuries of its application. Its application has neces-
sarily involved many statutory changes in the law, and many
gradual modifications in the technical doctrines of the law to
correspond with the statutory changes ; and, as the result of the
modifications of these technical doctrines, changes in the attitude
of the courts to the interpretation of the statutes. Therefore, in
relating the history of these changes both of the statute law and
of the technical doctrines of English law, we must take account
of many diverse lines of development, which have operated at
different periods. If we look at these lines of development from
the point of view of their chronological order, we can, I think, sum
them up briefly as follows :
Till the outbreak of the Great Rebellion, the part played by
the ecclesiastical law in the repression of all offences against
religion, was by no means inconsiderable.3 It did not indeed
play so large a part as in the Middle Ages ; for it was controlled
by statutes, which were enforced by the common law courts,
and it was both controlled and supplemented by the rules and
doctrines of the common law.4 We have seen that, in the latter
half of the seventeenth century, the influence of the ecclesiastical
1 Below 416-417.
8 Dicey, Law and Public Opinion (1st ed.) 316 — " In all ecclesiastical matters
Englishmen have favoured a policy of conservatism combined with concession. Con-
servatism has here meant deference for the convictions, sentiments, or prejudices of
churchmen, whenever respect for ecclesiastical feeling did not cause palpable incon-
venience to laymen, or was not inconsistent with obedience to the clearly expressed
will of the nation. Concession has meant readiness to sacrifice the privileges, or defy
the principles, dear to churchmen, whenever the maintenance thereof was inconsistent
with the abolition of patent abuses, the removal of grievances, or the carrying out of
reforms demanded by classes sufficiently powerful to represent the voice, or to com-
mand the acquiescence of the country."
3 Vol. i 617-620. 4 Ibid 617-618, 620-621 ; below 406-407.
RELIGIOUS NON-CONFORMITY 405
law rapidly declined.1 This was partly due to the dislike of
allowing to the ecclesiastical courts any coercive authority over
laymen — a dislike which found expression in statutory changes
which crippled this part of the jurisdiction of these courts, and
practically limited it to a jurisdiction over the clergy.2 Partly
also it was due to the increased control of the common law
courts. But, for a considerable time, the law administered by
these common law courts maintained much of the spirit of the
old system. The statute law had made even Christian non-
conformity illegal, and had penalized the various sects, whether
Protestant or Roman Catholic, in different ways and degrees.3
A fortiori any anti-Christian propaganda must be regarded as
illegal.4 Though a small breach had been made in this system
by the Toleration Act of 1689,5 and by the liberal way in which
it was interpreted,6 it continued to be the foundation upon which
the law rested till the beginning of the nineteenth century. But,
during the earlier half of the nineteenth century, a still larger
breach was made by the repeal of nearly all the older statutes
which penalized Christian, and even non-Christian, nonconformity.7
Very few restrictions were left upon the holding and exercise of
any kind of religious belief. But, except as modified by these
statutes, the common law rules, criminal and civil, as to the
illegality of the expression and teaching of definitely anti-Christian
beliefs, were left untouched. There had been no formal change
in these rules, which were founded on the principle that, as
Christianity was part of the law, any attack on it was unlawful.8
It was however inevitable that, in the atmosphere of universal
toleration, which was partly the cause and partly the effect of
these statutes, these common law rules and doctrines should
change their form and scope. It came to be thought that the
expression and teaching of anti-Christian beliefs was only criminal
if it amounted to blasphemous libel, and that the reverend ques-
tioning of those beliefs entailed no criminal liability.9 In the
twentieth century the propagation of these beliefs was held to be
lawful for all purposes, so that it has become possible to establish
a trust for their maintenance.10 Lastly, these changes in common
law doctrine have reacted on the manner in which some of the
earlier statutes, which gave only a modified relief to Roman
Catholics, have been interpreted ; with the result that the
modifications and restrictions contained in these statutes have
been, to all intents and purposes, rendered nugatory.11
1 Vol. i 620-621. 2 Ibid 621.
3 Vol. iv 494-496, 506-507; vol. vi 196-203. * Below 407-410.
5 1 William and Mary c. 18 ; vol. vi 200-201 ; below 410-411.
8 Below 411. 7 Below 41 1-413. 8 Below 413-414.
9 Below 415-416. 10 Below 416. n Below 417-41S.
406 CRIME AND TORT
It will be clear from this summary of the development of this
branch of the law, that its history falls into certain well-marked
periods. They can be classified as follows: — (i) The relation
between law and religion in the seventeenth and eighteenth cen-
turies ; (2) the new situation created by the repeal or modification
of the legislation against religious nonconformity ; (3) the effect
of this new situation upon legal doctrines as to the relation be-
tween law and religion ; (4) the effect of this new common law
doctrine upon the interpretation of the older legislation. Under
these four heads I propose to sketch the history of the develop-
ment of this branch of the law.
(1) The relation between law and religion in the seventeenth and
eighteenth centuries.
During the whole of this period the relations between law and
religion retained something of their mediaeval character, in that
the law considered it to be unlawful (except in so far as it might
be permitted by statute) to express or to teach religious opinions
contrary to those of the established church ; and a fortiori to ex-
press or teach anti-Christian doctrine. But, long before the end
of this period, the manner in which these principles were safe-
guarded was anything but mediaeval ; for their maintenance had
passed from the ecclesiastical courts to the ordinary courts of law
and equity. And the result had been a slight, but only a slight,
weakening of their rigidity.
Throughout this period it fell to the ordinary courts to apply
the many statutes which penalized the nonconformist, whether
Protestant or Roman Catholic. While these statutes were in
force, the expression of these opinions was not only illegal,
but in many cases criminal ; so that no contract or trust, which
was designed to help the propagation of these opinions, was
lawful. The only exception made to this legislation were the
provisions of the Toleration Act of 1689,1 in favour of certain
sects of Protestant nonconformists. With this Act and its inter-
pretation I shall deal under the following head.2
During the earlier half of the seventeenth century, the courts
of common law were assisted by the ecclesiastical courts, and more
especially by the court of High Commission.3 All these courts
exercised, as we have seen, an extensive jurisdiction over heresies
of all kinds ; and, as late as 161 2, in the case of Legate, a writ of
de haeretico comburendo issued, and the heretic was burned.4
In fact in 161 8 in Atwood's Case,5 the court of King's Bench
ruled that the uttering of scandalous words against the established
1 1 William and Mary c. 18. 2 Below 410-411.
3 For this court see vol. i 605-611. 4 Vol. i 618. 5 Cro. Jac. 421.
RELIGIOUS NON-CONFORMITY 407
religion, was certainly not a matter over which the justices of the
peace had jurisdiction, and inclined to the view that such a case
should have come before the High Commission. In Traskes Case,1
though the Star Chamber sentenced the accused for maintaining
the theses that the Jewish and not the Christian sabbath should be
observed, and that pork should be avoided, they expressly did so
because the preaching of these opinions tended "to sedition and
commotion," and scandalized the king, the bishops and the clergy.
The offence of holding these heretical opinions, they held, was
"examinable in the ecclesiastical courts and not here."2 We
have seen that the High Commission was abolished in 1641 ;3 and
that it was not restored with the other ecclesiastical courts at the
Restoration.4 We have seen, too, that the ecclesiastical courts
lost in 1677 their right to inflict capital punishment; and that
after that date their jurisdiction over the heretical opinions of lay-
men disappeared.5
But, during the latter half of the seventeenth century, the courts
of common law stepped into the breach. They had long enforced
the statutes against religious nonconformity. They now took
over the jurisdiction of the Star Chamber as a ' censor morum,' and
punished gross indecency, ribaldry, and blasphemy on the same
principles as those on which the Star Chamber had proceeded.
They also took over some part of the jurisdiction of the ecclesi-
astical courts, and punished the expression of infidel opinions,
both on the ground that they tended to sedition and commotion,
and on the ground that it was contrary to law to attack the
foundations of the Christian faith. One or two cases of the
late seventeenth and eighteenth centuries will show the principles
upon which they proceeded.
In 1663 Sedley was indicted for gross indecency, against the
king's peace, and to the great scandal of Christianity. 6 The court
of King's Bench expressly claimed to have inherited the Star
Chamber jurisdiction as custos morum, and also to punish profane
actions which were wholly contrary to Christianity.7 In 1676 the
King's Bench laid it down that the speaking of blasphemous words
was criminal, both as an offence against religion, and as an offence
1 (1618) Hob. 236.
2 " Now he being called ore tenus, was sentenced to fine and imprisonment, not
for holding those opinions (for those were examinable in the ecclesiastical courts and
not here) but for making of conventicles and factions by that means, which may tend
to sedition and commotion, and for scandalizing the King, the bishops, and the clergy."
3 Vol. i 611 ; vol. vi 112, 135. * Vol. i 611 ; vol. vi 113, 196.
5 Vol. i 618-619. * 1 Sid. 168.
7 " Et fuit dit a luy per les justices que coment la ne fuit a eel temps ascun
Star Chamber, uncore ils voil fair luy de scaver que cest Court est custos morum de
touts les subjects le Roy, et est ore haut temps de punnier tiels profane actions fait
encounter tout modesty, queux sont cy frequent, sicome nient solement Christianity,"
ibid.
408 CRIME AND TORT
against the state.1 The state and religion were regarded as allies
who must stand together to preserve the social order, so that to
speak against religion was as much an offence as to speak against
the state. "To say," said Hale, "that religion is a cheat, is to
dissolve all those obligations whereby the civil societies are pre-
served." "Christianity is parcel of the laws of England; and
therefore to reproach the Christian religion is to speak in sub-
version of the law."2 These cases were followed. In 1721
a person was indicted for a libel against the Trinity,3 and it
appears that he was convicted and sentenced.4 In 1729 a per-
son was convicted for blasphemous discourses on the miracles,
"and the court declared that they would not suffer it to be de-
bated whether to write against Christianity in general was not an
offence punishable in the temporal courts at common law. " 5
"Christianity," said Raymond, C.J.,6 "is parcel of the common
law of England, and therefore to be protected by it ; now what-
ever strikes at the very root of Christianity, tends manifestly to
the dissolution of civil government, and so was the opinion of my
Lord Hale in Taylor's Case." In 1763 there was another con-
viction for a blasphemous libel.7
Naturally the offences thus punished took different forms.
They are classified by Hawkins 8 as blasphemies against God,
profane scoffing at Holy Scripture, impostures in religion, open
lewdness, offences of a like nature tending to subvert all religion
or morality, and seditious words in derogation of the established
religion tending to provoke a breach of the peace. Another
offence of a similar kind, that of apostasy, was made the subject
of a special statute,0 which, as a matter of fact, has had singularly
little effect ; for it was held that it did not add materially to the
common law ; 10 and no convictions are known to have been ob-
tained for its breach.11 All these offences depended at bottom on
the underlying idea that offences against the Christian religion
must be treated as offences against the law of the land, because
Christianity, being a principal support of the state and its law,
the state and its law were especially bound to maintain it.12
I Taylor's Case, 1 Vent. 293. " Ibid. 3 R. v. Hall, 1 Str. 416.
4 In R. v. Curl (1727) 1 Str. at p. 790, it was stated that Hall was convicted and
was then in custody.
5 R. v. Woolston 2 Str. 834. B S.C. FitzGibbon at p. 65.
7 R. v. Annet, 1 W. Bl. 395. 8 P.C. Bk. 1 c. 5.
9 9 William III. c. 35.
10 See Attorney-General v. Pearson (1817) 3 Mer. at pp. 406-408 per Lord
Eldon C.
II See Bowman v. The Secular Society [1917] A.C. at p. 446, per Lord Parker.
12 " This is grounded upon the care that the government hath, or ought to have, by
the constitution of the government itself, of the Christian religion, which I conceive is
the main end of government. The profession and preservation of Christianity is of so
high a nature that of itself it supersedes all law : if any law be made against any point
RELIGIOUS NON-CONFORMITY 409
" Christianity," says Blackstone, " is part of the law of England ; "
and therefore, in addition to the laws which safeguarded the
position of the established church, and penalized nonconformity
with it, the law must punish such offences as apostasy and blas-
phemy.1
And this conception was logically followed out Because any
attempt to propagate beliefs inimical to Christianity was a
criminal offence, a trust for any sect which professed such beliefs
was illegal and void. In 1 684 a trust to pay a sum of money to
ministers ejected for nonconformity was declared to be void ; 2 and,
in the case of De Costa v. De Pas in 1744,3 Lord Hardwicke
refused to enforce a trust for the " maintenance of a ' Jesiba,' or
assembly for daily reading the Jewish law, and for advancing and
propagating their holy religion." ° The intent of this bequest,'
he said, " must be taken to be in contradiction to the Christian
religion, which is a part of the law of the land, which is so laid
down by Lord Hale and Lord Raymond ; and it undoubtedly is
so ; for the constitution and policy of this nation is founded
thereon."
It is true that common law doctrine had made some little
progress in the direction of toleration. In Calvin's Case Coke had
given utterance to the very mediaeval sentiment that all infidels
are in law perpetual enemies, " for between them, as with the
devils, whose subjects they be, and the Christian, there is per-
petual hostility and can be no peace." 4 But this idea had been
repudiated by Littleton in Charles I.'s reign;5 and it was
obviously contrary to the commercial interests of a country which
was beginning to conduct a prosperous trade with infidels.6 Then
of the Christian religion that law is ipso facto void," East India Co. v. Sandys (1684)
10 S.T. at pp. 374-375 per Holt arg. : and to this Treby, who argued on the other side,
assented, ibid at p. 392.
1 Comm. iv. 59.
2 Attorney-General v. Baxter 1 Vem. 248 ; the decree was reversed in i68g, 2
Vern. 105, on the ground that it was a good charitable trust for particular persons to
be selected by Baxter, see the extract from Lord Hardwicke's notebook cited by Lord
Eldon in Moggridge v. Thackwell (1803) 7 Ves. at p. 76.
3 2 Swanst 487 note. 4 (1609) 7 Co. Rep. at ff. 17a, 17b.
5 1 Salk. 46.
8 Thus Treby, in his argument in East India Co. v. Sandys (1684) 10 S.T. at
pp. 391-392 says, "if this perpetual hostility be taken in a political and proper sense
and the law be so, it destroys the licence and privilege of the Company. ... I must
take leave to say that this notion of Christians not to have commerce with infidels is a
conceit absurd, monkish, fantastical, and fanatical. 'Tis akin to Dominium fundatur
in Gratia. The Indians have a right to trade here, and we there, and this is a right
natural and human, which the Christian faith doth not alter " ; the strictures on Coke's
dictum made by Willes, C.J., in Omichund v. Barker (1744) Willes at p. 542, and by Lord
Mansfield, C.J., in Campbell v. Hall (1774) 20 S.T. at pp. 294, 323 are well known,
and illustrate the very different point of view of the eighteenth century; note also
that the mercantile reason was much emphasized in Omichund v. Barker at p. 551,
which case overruled Coke's statement, Co. Litt. 6b, that an infidel could not be a
witness ; see also 2 Swanst, 502 note,
410 CRIME AND TORT
again, in R. v. Woolston, the court said that, though to write
against Christianity in general was an offence, " they did not intend
to include disputes between learned men upon particular con-
troverted points."1 We shall see, too, that the manner in which
the Toleration Act of 1689 was interpreted, is evidence of the
growth of a more tolerant spirit.2 Still, when all deductions have
been made, there can be little doubt that, during this period,
Christianity was regarded as so integral a part of the law, that
any attack on it was an offence, and that no disposition of
property designed to propagate anti-Christian views would be up-
held. That this was then the law was almost admitted by Lord
Coleridge, C.J., in R. v. Ramsay and Foote? in which, as we shall
see,4 a very different rule of law was laid down. No doubt he
endeavours to explain some of these cases away, but, as
Stephen, J., has shown, with very little success.5 I think that
Stephen is quite right in asserting that, in this period, the judges,
when they held that Christianity was part of the law, meant to
hold that it was "a crime either to deny the truth of the funda-
mental doctrines of the Christian religion, or to hold them up to
ridicule or contempt." 6
We must now turn to the history of the way in which this
principle was gradually undermined. We shall see that the first
really decisive steps in this direction were taken by the Legislature ;
and that this legislation was made the more effectual by the rapid
growth of the spirit of toleration among the more educated classes
during the eighteenth, and the earlier part of the nineteenth,
centuries.
(2) The new situation created by the repeal or modification of
the legislation against religious nonconformity.
The first modification of the legislation against religious non-
conformity was the Toleration Act of 1689.7 We have seen that
it was the services rendered by the Protestant nonconformists to
the cause of the Revolution, which secured for them this measure
of relief from the disabilities under which they suffered.8 In form
1 (1729) 2 Str. 834. 2 Below 411.
3" Now according to the old law, or the dicta of the judges in old times, the
passages would undoubtedly be blasphemous libels, because they asperse the truth of
Christianity. But ... I think that these old cases can no longer be taken to be a
statement of the law at the present day," R. v. Ramsay and Foote (1883) 15 Cox C.C.
at pp. 234-235.
4 Below 415.
5 Fortnightly Rev. xli 289 sqq.; Stephen, H.C.L. ii 470-476.
"Fortnightly Rev. xli 293 ; or as he puts it at pp. 293-294, "the theory is as
plain and concise as possible ; the truth of some of the fundamental doctrines of
Christianity is essential to the welfare of society ; therefore everyone shall be punished
who denies, reviles, or ridicules them."
7 1 William and Mary c. 18. 8 Vol. vi 200-201.
RELIGIOUS NON-CONFORMITY 411
the concessions granted by the Act were not large. It simply, as
its title says, "exempted their Majesties' Protestant subjects dis-
senting from the Church of England from the penalties of certain
laws." But, as a necessary consequence, it legalized their meet-
ings for worship, provided they were not held behind locked
doors ; and it provided penalties for those who disturbed these
meetings. In addition, it exempted nonconformist ministers from
jury service, and service in certain parochial offices, and it allowed
Quakers to make a declaration instead of taking an oath. The
Act did not extend either to Roman Catholics or to Unitarians.
The courts interpreted the Act liberally. It was held that its
effect was to render the worship of the sects coming within the
protection of the Act legal for all purposes,1 so that a trust for
the maintenance of their teaching could be enforced by the court,
or, in a suitable case, a mandamus could issue to enforce the legal
rights of a minister to be admitted to office.2
No further statute was passed to legalize the worship of other
Protestant nonconformists for more than a century. In 1813 the
Unitarians were given the same privileges as had been accorded to
Protestant nonconformists by the Toleration Act of 1689 ; and so
much of the blasphemy Act of 1 698, as related to the denial of the
doctrine of the Trinity, was repealed.3 But Lord Eldon had grave
doubts whether this Act in favour of the Unitarians, could be given
the same extensive interpretation as had been given to the Act of
1689 in favour of other Protestant nonconformists. His view was
that, though the penalties for the maintenance of these opinions
had been removed, the impugning of the doctrine of the Trinity
was still " an offence indictable by the common law " ; so that a
trust to propagate such doctrines was not enforceable.4 In this
respect, therefore, a trust to propagate an opinion which he re-
garded as anti-Christian, differed from a trust to propagate opinions
which, though not conformable to the doctrines of the Church of
England, were Christian. But this restricted view of the Act was
dissented from in 1842. The judges, in the opinions which they
1 Attorney-General v. Pearson (1817) 3 Mer. at pp. 409-410 per Lord Eldon ; it
was said by Lord Mansfield in Evans's Case that the protecting clauses of the Tolera-
tion Act had put the worship of the Protestant dissenter, "not merely under the
connivance, but under the protection of the law — have established it," cited 3 Mer.
375 n. ; for Evans's Case see App. to Furneaux's letters to Blackstone, and Burn Eccl.
Law ii 207 ; see also the passage cited by Lord Buckmaster in Bourne v. Keane [1919]
A.C. at pp. 866-867.
2 R. v. Barker (1762) 3 Burr. 1265.
3 53 George III. c. 160.
4 " If the common law remains yet unaltered, and if the impugning the doctrine of
the Trinity be an offence indictable by the common law, it is quite certain that I
ought not to execute a trust the object of which is illegal," Attorney-General v. Pearson
(1817) 3 Mer. at p. 399.
412 CRIME AND TORT
gave to the House of Lords in the case of Shore v. Wilson} held
that no such distinction could be drawn between the enforceability
of a trust for the propagation of Unitarian tenets, and the tenets
of any other sect of Protestant nonconformists.
In 1829 came the Roman Catholic Emancipation Act,2 which
relieved Roman Catholics from the penalties to which they were
still subject, allowed them to sit in Parliament, and threw open to
them nearly all the offices of state. But the Act contained pro-
visions for the suppression of Jesuits and other religious orders of
male persons belonging to the Church of Rome ; 3 and it was not
considered to have removed the illegality of charitable trusts for
the maintenance of the Roman Catholic religion.
In 1832 Roman Catholics were put on the same footing as
Protestant dissenters, in respect to "their schools, places for
religious worship, education, and charitable purposes."4 But the
Act was not to affect the provisions in the Act of 1829 as to the
suppression of Jesuits and other religious orders.5 It was held,
however, in the case of West v. Shuttleworth? that this Act did
not operate to validate trusts for the maintenance of superstitious
purposes, such as masses for the dead. In fact, the Act of Ed-
ward VI.,7 which, in suppressing certain superstitious uses then
existing, had in its preamble declared the illegality of such uses,
had long been considered as having had somewhat the same effect
in defining what was a superstitious use, as the preamble of the
statute of 160 1 8 had in defining what was a charitable use. This
was the view taken of the preamble to the Act in Adams and
Lambert's Case in 1602.0 It was followed by Duke in his book on
Charitable Uses,10 and, ! it would seem, was approved as established
Jg Cl. and Fin. 355 ; at p. 578 Tindal, C.J., said, " that Unitarian preachers and
their widows, and other persons professing Unitarian doctrines are capable at the
present day of receiving the benefit of charities. ... I consider, since the statute of
53 Geo. 3 c. 160, all distinction between Unitarians and other Protestant Dissenters
as to this purpose is by law taken away."
2 10 George IV. c. 7 ; some remission of the laws rendering them liable to penalties,
and a permission to conduct their worship under strict conditions, had been granted by
31 George III. c. 32.
3 10 George IV. c. 7 §§ 28-37. 4 2, 3 William IV. c. 115.
5 § 4. 6 (1835) 2 My. and K. 684.
7 1 Edward VI. c. 14. 8 43 Elizabeth c. 4 ; vol. iv 398.
9 4 Co. Rep. at ff. 106b, 109b, nib, 113a, all cited by Lord Wrenbury in Bourne v.
Keane [1919] A.C. at pp. 919-920 ; all through this case it is assumed that uses, such
as those mentioned in the preamble to this statute, are superstitious.
10 (1st ed.) 106, cited by Lord Birkenhead in Bourne v. Keane [1919] A.C. at pp.
843-844; dealing with gifts for the finding or maintenance of a stipendiary priest, or
for the maintenance of an anniversary or obit, or of any light or lamp in any church or
chapel, or any like intent, he says, " these and such like gifts and dispositions, as these
are not to be accounted charitable uses intended by the purview of this statute (43
Eliza, c. 4), but superstitious uses intended by the statute of 1 Edw. 6 c. 14 " ; clearly
the idea is that the preamble of Edward VI. 's statute is to be taken as a guide to what
the law will deem a superstitious use, just as the preamble of Elizabeth's statute is to
be taken as a guide to what it will deem a charitable use ; and this idea is, it seems to
me, implied in much of the reasoning in Adams and Lambert's Case.
RELIGIOUS NONCONFORMITY 413
law by Lord Hardwicke in De Costa v. De Pas,1 Having regard
to these authorities, the decision in West v. Shultleworth - was in-
evitable; and it was followed in later cases.3 In i860, when the
Legislature gave a larger measure of protection to Roman Catholic
charities, it assumed that trusts for superstitious uses were still
illegal ; 4 and when it assumed the illegality of these superstitious
uses, it must obviously have used the term superstitious use in the
sense in which it had been judicially interpreted. The result of
this legislation, therefore, was to remove all penalties and dis-
abilities affecting Roman Catholics, and to legalize, not entirely,
but to a very large extent, trusts for the propagation and mainten-
ance of their worship.
In 18465 the Jews had been relieved from their disabilities by
an Act, which repealed a number of other disabilities and penalties,
which earlier legislation had imposed on various classes of non-
conformists. Moreover, with respect to their schools, places for
worship, education, and charitable purposes, they had been put on
the same footing as Protestant nonconformists.6
It will be observed that this legislation contained nothing
whatever affecting the position of the atheist, or person who pro-
fessed no religious belief; and the curious history of the manner
in which such persons were gradually allowed on all occasions to
affirm instead of taking an oath — a history which in its later stages
is connected with the name of Bradlaugh — illustrates the reluctance
of a Legislature, which was still, almost unconsciously, under the
influence of the ideas embodied in the dictum that Christianity
was part of the law, to make any concessions to them.7 Naturally,
therefore, during the earlier part of the nineteenth century, it was
still held that those who denied the truth of all religion, including
the Christian religion, were guilty of a criminal offence. There are
a series of such cases in which the old principle was laid down as
good law.8 In fact, as late as 1 841, on an indictment for blasphem-
ous libel, Lord Denman, C. J., told the jury that, " if they thought
that the libel tended to question or cast disgrace upon the Old
Testament it was a libel " ; 9 and, in the decision of the court on a
1 " The objection is, that this is a superstitious use, and so that the bequest must
go to the crown ; but in answer to this it is said, that that can only be in cases that are
within the statute of Edward VI. But the cases have gone further," 2 Swanst. 487
note.
2 (1835) 2 My. and K. 684.
3 Attorney-General v. Fishmongers Co. (1841) 5 My. and Cr. 11 ; Heath v. Chap-
man (1854) 2 Dr. 417.
4 23, 24 Victoria c. 134 §1. 5g, 10 Victoria c. 59. 6 § 2.
7 See Clarke v. Bradlaugh (1881) 7 Q.B.D. at pp. 58-61 per Lush, J., for a good
account of this matter.
8 R. v. Carlile (1819) 1 S.T.N.S. 1390, 4 S.T.N.S. 1423 ; R. v. Waddington (1822)
1 S.T.N.S. 1368-1369 ; see also R. v. Moxon (1841) 4 S.T.N.S. 694.
9 R. v. Hetherington 5 Jurist 529-530.
414 CRIME AND TORT
motion in arrest of judgment, substantially the old principle, that
a reflection on Christianity in general is indictable, is laid down.
It followed also that all attempted dispositions of property, and
other transactions, having for their object the propagation of such
opinions, were void. Thus in 1850, in the case of Briggs v.
Hartley} it was held that a trust which contemplated an object
inconsistent with Christianity failed ; and in 1 867, in the case of
Coivan v. Milbourn, it was held that a contract to let a lecture
room for an anti-Christian lecture was void for illegality.2
But, some time before Cowan v. Milbourn had been decided,
the feeling in favour of a more universal tolerance, which was
partly the cause and partly the effect of the legislation which I
have just described, had begun to react upon these common law
doctrines.
(3) The effect of the new situation created by this legislation
upon legal doctrines as to the relation between law and religion.
During the first half of the nineteenth century, there are
indications that some lawyers were beginning to be of opinion that
it was not every sort of questioning of the truths of Christianity,
which would make the questioner criminally liable. As early as
1729, the court had expressly said that it did not mean to assert
that theories advanced by learned men upon controversial points,
would expose those who held them to liability, provided that
Christianity in general was not attacked ; 3 and both Lord Mans-
field 4 and Blackstone 5 had maintained that the mere holding, as
distinct from the propagation, of opinions was not an offence by
English law. We have seen that both the Star Chamber in the
earlier part of the seventeenth century,6 and the common law
courts in the later part of that century,7 had assigned, as their
reason for taking cognizance of heretical opinions, the fact that
they tended to sedition and commotions ; and Blackstone had
emphasized the fact that blasphemy consisted in " profane scoffing
at the Holy Scripture or exposing it to contempt and ridicule."8
Having regard, therefore, to the larger liberty of expressing
opinions secured by the legislation of the earlier part of the nine-
teenth century, it is not surprising to find that, about the same
1 19 L.J. Ch. 416-417 ; cf. Murray v. Benbow (1822) 4 S.T.N.S. 1409 — the famous
case in which Lord Eldon refused to issue an injunction to restrain the publication
of a pirated copy of Byron's Cain ; see also the authorities cited by Lord Finlay in
Bowman v. The Secular Society [1917] A.C. at p. 430.
2 L.R. 2 Ex. 230. 3 R. v. Woolston 2 Str. 834 ; above 410.
4 " The common law of England, which is only common reason or usage, knows
of no prosecution for mere opinions," Evans v. The Chamberlain of London, Burn
Eccl. Law ii 218, cited 3 Mer. 375 note.
5 Comm. iv 49. 6 Above 407.
7 Above 407-408. 8 Comm. iv 59.
RELIGIOUS NON CONFORMITY 415
period, it began to be thought that the essence of the offence of
blasphemy, was not the denial of the truths of Christianity, but
their denial in an offensive manner. Starkie, the second edition
of whose book on libel was published in 1830, maintained, in
substance, that an honest denial of Christianity was not blasphemy ;
and that the essence of the offence was "a wilful intention to
pervert insult and mislead others by means of licentious and con-
tumelious abuse applied to sacred subjects, or by wilful misrepre-
sentations or artful sophistry calculated to mislead the ignorant or
unwary."1
The cases already cited show that the criminal law was not
for some time expounded in this way. But the trend of public
opinion was making for its acceptance. In 1842, in the case
of Shore v. Wilson? Erskine, J., laid it down that, " it is still
blasphemy, punishable at common law, scoffingly or irreverently
to ridicule or impugn the doctrines of the Christian faith, and no
one would be allowed to give or to claim any pecuniary encourage-
ment for such purpose ; yet any man may, without subjecting
himself to any penal consequences, soberly and reverently examine
and question the truth of those doctrines, which have been
assumed as essential to it." This view of the law was followed
by Coleridge, J., in R. v. Pooley in 1857,3 and by his son Lord
Coleridge, C.J., in R. v. Ramsay and Foote in 1883.4 The
correctness of this statement of the law was assailed by Stephen, J.5
That it was not a correct statement of the law of England in the
seventeenth, or even the eighteenth, centuries, I think he proves ;
and indeed the historical truth of Stephen s view is, as we have
seen, almost admitted by Coleridge, C.J.6 But there is no doubt
that, as the nineteenth century proceeded, this newer view of
1 " Though as a matter of discretion and prudence, it might be better to leave the
discussion of such matters to those who, from their education and habits, are most
likely to form correct conclusions, yet it cannot be doubted that any man has a right,
not merely to judge for himself, on such subjects, but also legally speaking, to publish
his opinions for the benefit of others. . . . The law visits not the honest errors, but
the malice, of mankind. A wilful intention to pervert, insult, and mislead others, by
means of licentious and contumelious abuse applied to sacred subjects, or by wilful
misrepresentations, or artful sophistry, calculated to mislead the ignorant or unwary, is
the criterion and test of guilt," Starkie, Libel (3rd ed.) 559, 600, cited Stephen, Fort-
nightly Rev. xli 311.
2 g CI. and Fin. at pp. 524-525 ; and he had laid down substantially the same rule
in the same year in R. v. Holyoake 4 S.T.N.S. 1381.
3 Stephen, Fortnightly Rev. xli 311.
4 15 Cox C.C. 231 ; "I think that these old cases can no longer be taken to be a
statement of the law at the present day. It is no longer true in the sense in which it
was true, when these dicta were uttered, that Christianity is part of the law of the
land. ... To asperse the truth of Christianity cannot per se be sufficient to sustain a
criminal prosecution for blasphemy," ibid at p. 235 ; " I now lay it down as law, that,
if the decencies of controversy are observed, even the fundamentals of religion may be
attacked, without the writer being guilty of blasphemy," ibid at p. 238.
5 Fortnightly Rev. xli 289 ; H.C.L. ii 474-476.
6 Above n. 4.
416 CRIME AND TORT
the law had been gathering strength, because it was obviously
so much more in accordance with men's views as to the proper
relation between law and religion than the older view1 — a fact
illustrated by the settlement in 1888 of the long controversy as to
the right of the atheist to affirm instead of taking an oath.2 The
law laid down in R. v. Ramsay and Foote was approved by the
Court of Appeal in 191 5 ; 3 and the principle was applied by the
House of Lords in 1917.4 It is therefore now indisputably the
law of England.
It did not follow, however, that, because a reverend denial of
Christianity was no longer a criminal offence, the law would
uphold a trust or a contract to propagate views which were
directly contrary to the Christian faith. But even here the
former rigid attitude of the law was weakening. Judges were
astute to find that trusts for religious purposes were not anti-
Christian ; 5 and at length in 191 7, in the case of Bowman v. The
Secular Society^ it was held that the propagation of such views
was not illegal in any sense, and that therefore a bequest upon
trust for a company, formed to propagate these views, was valid.
The cases of Briggs v. Hartley? and Cowan v. Milbourn 8 were
overruled, with the result that the law now draws no distinction
between the propagation of Christian, non-Christian, or anti-
Christian opinions. It will help all alike, unless it can be shown
that they advocate practises contrary to the rules of English Law.
But just as Stephen, J., upheld the older rules as against the
newer law laid down in R. v. Ramsay and Foote, so in Bowman v.
The Secular Society Lord Finlay upheld the older law laid down in
Briggs v. Hartley and Cowan v. Milbourn ; and in both cases
these advocates of the older law were solitary protestants.
The legislation of the nineteenth century, which threw open
most of the offices of state to persons who were not members of
the established church, destroyed, as Blackstone said it would
destroy,9 the logical necessity for such a church. In like manner
1 " Parliament, the supreme authority as to our law has passed Acts which render
the dicta of the judges in former times no longer applicable. And it is no disparage-
ment to their authority to say that observations which were made under one state of
the law are no longer applicable under a different state of things," R. v. Ramsay and
Foote (1883) 15 Cox C.C. at p. 235.
2 51, 52 Victoria c. 46 (The Oaths Act).
3 Secular Society v. Bowman [19 15] 2 Ch. at pp. 462, 469-470.
4 S.C. on appeal [1917] A.C. 406.
5 See Parr v. Clegg (1861) 29 Beav. 589 ; Thornton v. Howe (1862) 31 Beav. 14 ;
both these cases were decided by Lord Romilly
c [1917] A.C. 406. ' (1850) 19 L.J. Ch. 416.
8 (1867) L.R. 2 Ex. 230.
9 " If every sect was to be indulged in a free communion of civil employments, the
idea of a national establishment would at once be destroyed, and the episcopal church
would be no longer the church of England," Comm. iv. 53.
RELIGIOUS NON-CONFORMITY 417
the decision in Bowman v. The Secular Society leaves the ecclesias-
tical law of England in a very anomalous position. We have seen
that, as late as 1881, it was described by Lord Blackburn as part
of the general law of England.1 If this is so, it would seem that
the situation, in which the rules of law and equity sometimes
found themselves before the Judicature Acts, is again reproduced.
That which one part of the law of England regards as illegal is
regarded as legal and enforced by the other part But the effects
of this decision have not stopped here. As we shall now see, the
same trend of public opinion, which led up to this decision, has
encouraged the House of Lords to change the long accepted
interpretation placed upon some of the older legislation dealing
with Roman Catholicism.
(4) The effect of this new common law doctrine upon the inter-
pretation of the older legislation.
We have seen that the legislation, which freed the Roman
Catholics from their disabilities, did not wholly emancipate them.*2
But it is clear that some of the judges were beginning to think
that these restrictions were not wholly consistent with the larger
liberty which had been accorded to all kinds of religious and
anti-religious opinions. In i8603 and 18614 Lord Romilly ex-
pressed some doubts as to the correctness of the law laid down in
West v. Shuttleworth as to the invalidity of superstitious uses. In
1 91 4 the restrictive clauses in the Act of 1829, directed against
monastic orders, were, to a large extent, rendered nugatory by
the decision of Joyce, J., in the case of In re Smith'0 — the judge
whose decision was affirmed by the House of Lords in the case
of Bowman v. The Secular Society. Finally, in 19 19, practically
the whole law as to the invalidity of superstitious uses was swept
away by the decision of the House of Lords in Bourne v. Keane*
The House asserted that the preamble to the Chantries Act of
Edward VI.7 could not have the effect which is still accorded to
the preamble of Elizabeth's Act of 1601 ;8 and it reversed all the
cases and dicta which were founded ultimately upon the view that
just as the preamble to Elizabeth's Act is a guide to the definition
of a charitable use, so the preamble to Edward VI. 's Act must be
taken as a guide to the definition of a superstitious use. This was
a bold step. When the House of Lords in 19 16 was reminded
that in 1888 it had reversed a decision of 1849, the retort was
1 Mackonochie v. Lord Penzance (1881) 6 A.C. at p. 446, cited vol. i 595.
2 Above 412-413. 3 Re Michel's Trust 28 Beav. at p. 42.
4 Re BlundelFs Trusts 30 Beav. at p. 362 ; see above 416 n. 5 for Lord Romilly's
reluctance to find anything anti-Christian in an otherwise lawful trust.
* [1914] 1 Ch. 937. • [1919] A.C. 815.
7 1 Edward VI. c. 14. 8 43 Elizabeth c. 4 ; vol iv 398.
VOL. VIII.— 27
418 CRIME AND TORT
given that " this is hardly the right view to take of your Lordship's
judicial functions nowadays."1 But in this case, the House, as
Lord Wrenbury pointed out, reversed dicta 317 years old, a
decision 84 years old,2 and a rule which, in 191 7, Lord Parker
had regarded as a settled rule of law.3 But Lord Wrenbury
in this case took the position of solitary protestant, which
Stephen, J., took in relation to the decision in R. v. Ramsay
and Foote, and Lord Finlay took in relation to the decision in
Bowman v. The Secular Society. In all three cases the movement
of public opinion in favour of the widest toleration was sufficient
to overturn the principles of the older law. Indeed, it was
admitted by Lord Birkenhead that it was the same public policy
as that underlying the judgment in Bowman v. The Secular Society
which played a great part in inducing the House of Lords to take
the greatest liberty which it has ever taken with established
legal principles.4 That decision is thus the crowning illustration
of the manner in which the development of this branch of the law
has been dominated at all periods, and more especially in its later
phases, by considerations of public policy and by the force of
public opinion.
Thus the old theories upon which the relation of State to
Church were based, and, consequently, both the old doctrine as
to the relation of English law to Christianity, and the technical
rules which depended on that doctrine, have been swept away.
All that is left is the law as to blasphemous libel as restated in
R. v. Ramsay and Foote. It is obvious that the dominant factor
in the various trains of technical reasoning, which have justified the
abolition of the older doctrines of law and equity, and, with the
assistance of the Legislature, have impelled them in the direction
of universal toleration, has been the influence of public opinion as
to the proper relation of the state and its law to religion. Indeed,
1 Admiralty Commissioners v. S.S. Amerika [1917] A.C. at p. 56, per Lord
Sumner, cited vol. iii 677 n. 2.
a [1919] A.C. at p. 925 ; he might, as we have seen, above 413, have added
that it was a construction in which apparently Lord Hardwicke had concurred.
3 Bowman v. Secular Society [1917] A.C. at p. 437.
4 " Unwilling as I am to question old decisions, I shall be able, if my view
prevails, to reflect that your Lordships will not within a short period of time have
pronounced to be valid legacies given for the purpose of denying some of the
fundamental doctrines of the Christian religion, and have held to be invalid a bequest
made for the purpose of celebrating the central sacrament in a creed which commands
the assent of many millions of our Christian fellow-countrymen. In the second place
. . . your Lordships will have the satisfaction of deciding that the law of England
corresponds upon this important point with the law of Ireland, of our great Dominions,
and of the United States of America. A decision based . . . upon a sound view of
the law may reasonably appeal to these two powerful considerations of policy as
against the admitted impolicy of disturbing old conclusions," Bourne v. Keane [1919]
A.C. at p. 831.
RELIGIOUS NON-CONFORMITY 419
I think that it would be true to say that in no branch of the law
has this influence been in the past more pronounced, and that it
still continues, and will continue, to exercise at least an equal
influence in the future. In the past that influence has been all in
the direction of a greater liberty and a fuller toleration, until in
our own days, complete liberty and full toleration have been
attained. No doubt the use made of this complete liberty and
full toleration will largely determine the future trend of public
opinion ; for it is the fact that this gradually extending liberty has
not in the past proved dangerous to the safety of the state, that
has made for its final victory. This fact is not unconnected with
that growth in the strength of the state, which has enabled it to
be more generous in its administration of the criminal law than in
the days when it was weak.1 But if this liberty should be misused
so as to endanger the safety of the state, there can be little doubt
that public opinion will revert again to its older attitude.
The principles which underlie the past development and the
probable future of this branch of the law, have been so fully and
eloquently summed up by Lord Sumner, in one of the wisest
pronouncements that have ever been made on the subject, that I
shall copy his words : 2 " the words, as well as the acts, which
tend to endanger society differ from time to time in proportion
as society is stable or insecure in fact, or is believed by its reason-
able members to be open to assault. In the present day
meetings or processions are held lawful which a hundred and
fifty years ago would have been deemed seditious, and this is not
because the law is weaker or has changed, but because, the times
having changed, society is stronger than before. In the present
day reasonable men do not apprehend the dissolution or the
downfall of society because religion is publicly assailed by
methods not scandalous. Whether it is possible that in the
future irreligious attacks, designed to undermine fundamental in-
stitutions of our society, may come to be criminal in themselves,
as constituting a public danger, is a matter that does not arise.
The fact that the opinion grounded on experience has moved one
way does not in law preclude the possibility of its moving on
fresh experience in the other ; nor does it bind succeeding genera-
tions, when conditions have again changed. After all, the ques-
tion whether a given opinion is a danger to society is a question
of the times, and is a question of fact. I desire to say nothing
which would limit the right of society to protect itself by process
of law from the dangers of the moment, whatever that right may
be, but only to say that experience having proved dangers once
1 Vol. v. 196.
2 Bowman v. The Secular Society [1917] A.C. at pp. 466-467.
420 CRIME AND TORT
thought real to be now negligible, and dangers once very possibly
imminent to have now passed away, there is nothing in the
general rules as to blasphemy and irreligion, as known to the law,
which prevents us from varying their application to the particular
circumstances of our time in accordance with that experience."
How far the law as it exists to-day is likely to be beneficial
to the state and to the community remains to be seen. Complete
freedom in economic relations has already been tried and found
wanting. It is at least doubtful whether it will be any more
successful in respect to the publication of opinions, religious or
otherwise ; and it may well be that in religious and intellectual,
as in economic spheres, we shall, as Lord Sumner has indicated,
be driven to revert to some of our older ideas. It is not unlikely
that those who have abandoned all belief in the authority of a
God, will carry their scepticism a little further, and begin to
question the authority of the state. The Christianity upon which
the state and the law were once founded, though it might at times
unduly magnify the authority of the Church, recognized the need
for the secular arm of the state, and generally supported its
authority. But what of the various non-Christian or anti-Christian
sects which seek to take its place ? It may well be that "false
doctrine heresy and schism " of the strictly theological variety,
no longer connote, as they often did connote in the sixteenth and
seventeenth centuries, "sedition privy conspiracy and rebellion" ;
but it does not follow that the state can afford to disregard all
kinds of false doctrine. It does not follow that unlimited licence
to propagate views and theories at variance with broad principles
of Christian morality, will be wholly unproductive of political effects.
History lends no countenance to such a conclusion ; and the proved
efficacy of propaganda supports its teaching. In fact, it is not
unlikely that Caesar, now that he has deliberately abandoned the
task of securing for God the things that are God's, will find con-
siderably greater difficulty than heretofore in securing for himself
the things that are Caesar's. If that result should follow one of
two courses must be pursued. Either the state must reassert its
authority by means of an increase in the severity of the criminal
law, and an abridgment of the liberty to express immoral or
seditious opinions ; or it must be content to pursue a policy
of drift and concession to the forces opposed to it, which can only
lead straight back to a set of political conditions which will bear
no small resemblance to the modified anarchy of mediaeval political
society — without the redeeming grace of the spiritual elements in
that society, which sprang from the deeply rooted religious faith
of mediaeval men.
THE PROCESS OF DIFFERENTIATION 421
§ 5. Lines of Future Development
We have seen that the mediaeval law of crime and tort was
narrow. It was, so to speak, permeated by the idea of trespass —
by the idea, that is, of forcible damage to person or property.
At the end of the mediaeval period it was only just beginning to
transcend this idea through the instrumentality of the writs on the
case. We have seen that, during this period, the criminal law
was developed, partly by the Legislature, and partly by the new
ideas introduced by the Council and Star Chamber ; and that the
law of tort was developed partly by the latter agency, and partly
by a great expansion of the action on the case. Consequently, in
the criminal law many new treasons and felonies were created, and
the modern misdemeanour made its appearance ; while the develop-
ment of the law of tort was marked by the growth of specific
torts, and, as we shall see in the next section, by large changes in
and additions to the principles of liability. With some of these
developments I have already dealt in the preceding sections of
this chapter. At this point it will only be necessary, firstly, to
sketch briefly, in respect to certain torts not already dealt with,
the manner in which this process of differentation was proceeding ;
and, secondly, to indicate some of its effects upon the growth of
the law.
The Process of Differentiation
(1) Wrongs to the person.
During this period we can see the beginnings of the process
which will differentiate the wrongs of assault, battery, and false
imprisonment, and create the specific torts known by these names
in our modern law. In the Middle Ages all these wrongs were
redressible by an action of trespass ; and they were regarded
simply as illustrations of the multifarious trespasses to the person
redressed by that writ. But in the cases decided upon writs
brought for particular trespasses, and upon writs on the case
brought for wrongs analogous thereto, we can see that the law is
beginning to acquire some more precise rules as to the conditions
under which these wrongs are committed. These rules are the
starting points of the further developments which will give this
branch of the law its modern shape.
Assault and Battery. — As early as the fourteenth century it
was held that trespass would lie for an attempted battery which had
failed to take effect — for instance when one had thrown a hatchet
at another which had missed ; x for a threatened battery if
1 22 Ass. 99 pi. 60; Belknappe's argument to the contrary was overruled in Y.B.
40 Ed. III. Mich. pi. 19 ; and in Y.B. 45 Ed. III. Trin. pi. 35 Belknappe as judge
laid down the law in this sense; Street, Legal Liability i 10-11.
422 CRIME AND TORT
accompanied by actual damage ; x and even for mere threatening
words which put the plaintiff in fear, and caused him damage.2 It
was held, however, in the case of Tuberville v. Savage,3 that a
present threat of violence was needed to constitute an assault, so
that where one put his hand on his sword and said, " if it were
not assize time I would not take such language from you," it was
no assault ; though it would have been otherwise if he had held
up his hand in a threatening manner and said nothing. In this
case stress was laid on the declared intention not to offer violence ;
and it is probably because no intention of violence can be certainly
collected from general words of threatening or abuse, that the law
has abandoned the idea that such words can be accounted as an
assault.4 It was the same emphasis on intention which has given
us our modern definition of battery. In its original conception it
meant the infliction of physical injury ; 5 and we have seen that in
the Middle Ages an action lay whether it was committed inten-
tionally, negligently, or accidentally.6 But it was held, during
this period, that " the least touching of another in anger " is a
battery.7 This at once introduces the question, What is a touch-
ing in anger? and this question can only be answered by a
reference to the intent of the party who touches another.8 Thus
it was held in Tubewille v. Savage that a touching, "done in
earnest discourse and not with intent of violence is no assault," and
therefore no battery.9 But this rule at once introduces into the
offence a new element — the element of insult — which may justify
heavy damages for a battery which inflicts only trifling physical
injury.10
The writ of trespass for assault and battery remedied, not
only violence offered immediately to the plaintiffs own person,
but also violence offered to him indirectly through violence
1 Y.B. 45 Ed. III. Trin. pi. 35.
2 27 Ass. 134 pi. n ; Y.BB. 37 Hy. VI. Pasch. pi. 8 at p. 20b per Prisot, C.J. ;
7 Ed. IV. Hil. pi. 31 per Danby and Choke, JJ. ; the same rule was laid down in Y.B.
17 Ed. IV Trin. pi. 2 p. 4b by Fairfax, J., but denied by Nedham, J., and Billing, C.J. ;
cp. Pollock, Torts (12th ed.) 216 n. (/>).
3 (1669) 1 Mod. 3.
4 Evely v. Stouly (1615) 2 Buls. at p. 327 per Dodderidge, J. ; Pollock, Torts
(12th ed.) 216, citing ' the Circuiteers' (L.Q.R. i 232) : — " For Meade's Case proves,
or my Report's in fault, that singing can't be reckoned an assault." The opinion of
Nedham, J., and Billing, C.J., in Y.B. 17 Ed. IV. Trin. pi. 2 p. 4b seems to be in
harmony with the later law.
5 See Street, Legal Liability i 4-6. 6 Vol. iii 376.
7 Cole v. Turner (1705) 6 Mod. 149 per Holt, C.J.
8 " The factor which the law accepts as sufficient to justify this extension is found
in the wrongful or hostile intent of the wrong-doer ; in his malice, as the element is
termed in other departments of tort," Street, op. cit. i 6.
9 (1669) 2 Keb. 545 ; "if two or more meet in a narrow passage, and without any
violence or design of harm, the one touches the other gently, it will be no battery,"
Cole v. Turner (1705) 6 Mod. 149 per Holt, C.J.
10 Street, op. cit. i 6 ; Pollock, Torts (12th ed.) 213.
THE PROCESS OF DIFFERENTIATION 423
or threatened violence to his servants and tenants.1 As Sir
F. Pollock has said,2 " examples of this kind are not uncommon
down to the sixteenth century or even later ; we find in the
pleadings considerable variety of circumstance which may be
taken as expansion or specification of the alia enormia regularly
mentioned in the conclusion of the writ" A good example in
this period is the case of Garret v. Taylor? In that case the
defendant had threatened the plaintiffs workmen and customers,
so that they desisted from working for or trading with him. It
was held that the plaintiff could recover damages in an action on
the case. We shall see that the principle underlying such cases
was one of the principles contributing to developments in the law
of tort, which were called for by the growth of commerce and
industry during this period — developments which have, owing to
the legislative changes of the nineteenth century, assumed immense
importance in modern times.4
False Imprisonment. — "False imprisonment," as Mr. Street
says,5 " was one of the first trespasses recognized by the common
law. A laying of violent hands upon the person, and an actual
forceful deprivation of liberty, is the element undoubtedly at the
root of liability in this wrong. In other words, the typical original
imprisonment involved a battery." But even in mediaeval times
this notion was extended. In Edward Ill.'s reign Thorpe, C.J.,
ruled that, ' ' there can be said to be an imprisonment in all cases
where a man is arrested by force and against his will, be it in the
high street or elsewhere, even though he be not confined in a
house."6 What amount of restraint will amount to the commis-
sion of the tort has been elaborated in the later cases. It was
settled, at the end of the seventeenth century, that the restraint
must be total, so that, if all means of escape are not blocked, the
tort is not committed." We have seen that some aspects of the
tort shade off into the very different tort of malicious prosecution ;
and that it was only gradually that the line between them was
clearly drawn.8
Besides these specific wrongs to the person a large number of
other unclassified wrongs were redressed by the action on the case.
In all these cases the question whether or not a tort had been
1 F.N.B. 87 N. * Torts (12th ed.) 234, and references there cited.
3 (162 1) Cro. Jac. 567. * Below 431.
5 Op. cit. i 12-13, citing Bracton's Note Book cases 314, 465.
6 22 Ass. 104 pL 85.
7 " A has a chamber adjoining to the chamber of B, and has a door that opens into
it, by which there is a passage to go out ; and A has another door which C stops, so
that A cannot go out by that. This is no imprisonment of A by C because A may go
out by the door in the chamber of B, though he be a trespasser by doing it. But A
may have a special action upon his case against C," Wright v. Wilson (1699) 1 Ld.
Raym. 739 per Holt, C.J. 8 Above 388.
424 CRIME AND TORT
committed depended upon the question whether the defendant
was guilty of negligence. But of the growth and influence of this
conception I shall speak in the following section.1
(2) Wrongs to property.
Of wrongs to a plaintiffs right to the possession of chattels and
land, and of the kinds of damage to property redressible by the
various writs of trespass, I have already spoken.2 As in the case
of wrongs to the person, a number of other unclassified wrongs to
property were redressed by the action on the case, if the defendant
had acted negligently.3 I have also said something of the develop-
ment of the scope of nuisance by means of action on the case.4
At this point it will only be necessary to call attention to two
other aspects of the law as to nuisance, which have given rise to
important bodies of rules in the modern law of tort.
(i) It was recognized, certainly by the beginning of the six-
teenth century, that a nuisance might either be public and remedi-
able by indictment, or private and remediable by action on the case
at the suit of the person damaged thereby. But the question
whether, and under what conditions, a person damaged by a public
nuisance, could sue for damages, remained somewhat debateable
down to the close of this period. It had been laid down by Fitz-
herbert in 1 536 s that an action would lie for a public nuisance, if
the plaintiff could show that he had suffered special damage over
and above the ordinary damage caused to the public at large by
the nuisance. "If one makes a ditch across the highway, and I
come riding in my way by night, and I and my horse are thrown
into the ditch, so that I suffer great damage ... in this case I
shall have an action against him who made the ditch across the
way, because I am more damaged by this than any other." But
Baldwin, C.J., dissented. He considered that any stoppage of
the highway was simply a public nuisance, and punishable only
by indictment ; ° and in this divergence of opinion we can see the
beginnings of long standing doubts upon this matter. Though
Fitzherbert's view was accepted,7 differences of opinion arose in
the seventeenth century as to what could be considered to be suf-
ficiently special damage to entitle a plaintiff to sue. Holt, C.J.,
1 Below 449-458. 2 Vol. vii 57 seqq., 402 seqq. 3 Below 458.
"Vol. iii 11, 28; vol. vii 328-331, 340-341. 5Y.B. 27 Hy. VIII. Mich. pi. 10.
6,1 Semble que cest accion ne gist pur le pleintiff sur l'estoppel de haut chemin,
car le Roy ad le punition de cela, et il est present en le Leet, et la il sera redresse :
pur ce que il est common nuisance a touts liges le Roy, et donquesn'est reason que un
private particulier person aura accion sur cela; car per memele reason que l'un person
aura accion pur cela, per meme le reason chescun aura sur cela, et donques il sera
puni C fois pur meme le cause," ibid.
7 Williams's Case (1595) 5 Co. Rep. at f. 73a ; Fowler v. Sanders (1618) Cro. Jac.
446.
THE PROCESS OF DIFFERENTIATION 425
and Rokeby, J., ruled that the plaintiff must be prepared to show
a damage to himself directly arising from the nuisance, over and
above that suffered by the public ; x so that, if, for instance, through
a stoppage in a road, a man lost a valuable piece of business by
his late arrival, such damage could not be recovered. The delay
in the journey was no more than was suffered by the rest of the
public, and the loss of the business was too remote.2 But other
judges were of opinion that such consequential damage was not too
remote, and could be recovered.3 This difference of opinion has
lasted down to our own days, and has given rise to judgments in
the House of Lcrds which are not easily reconcilable.4
(ii) So soon as the application of the action on the case to
remedy a nuisance had begun to widen the conception of a nuisance,
the difficulty arose of drawing the line between those species of
damage which are absque injuria, because they are only the neces-
sary result of the legitimate user of a man's property, and those
species of damage which will support an action, because they are
the result of an improper or excessive user of that property.3 As
early as 1410 this difficulty arose in the Gloucester Grammar
School Case.0 The masters of an ancient grammar school sued
the defendant who had set up a rival school, and had, by his com-
petition, lowered the fees which they were formerly able to charge.
It was held that, though there would have been a good cause of
action if the profits of an incorporeal hereditament, such as a
franchise of fair ferry or mill, were disturbed by the setting up of
a rival fair ferry or mill, in the absence of such a franchise, no
action lay for damage occasioned by legitimate competition." This
1 " The plaintiff could not have an action for stopping of this way, because his
coal mine was near it ; for though it is a convenience to him, yet the situaticn does
not give him any greater right to the way than any other of the king's subjects . . .
the case of 27 H. 8, 27 is no authority for this action ; for there Baldwin, Chief Justice,
was of opinion against the action, and his opinion has been held law ever since," Iveson
v. Moore (1700) 1 Ld. Raym. at pp. 492, 493.
2 " If a highway is so stopped that a man is delayed in his journey a little while,
and by reason thereof he is damnified, or some important affair neglected ; this is not
such a special damage for which an action on the case will lie ; but a particular damage
to maintain this action ought to be direct and not consequential ; as for instance, the
loss of his horse, or by some corporal hurt, in falling into a trench in the highway,"
Paine v. Partrich (1692) Carth. at p. 194 per Holt, C.J.
3 Iveson v. Moore (1700) 1 Ld. Raym. at pp. 489, 491 per Gould and Turton, JJ.,
with whom, alter a fresh argument at Serjeants' Inn, the other judges agreed, ibid at
P- 495-
4Ricket v. Metropolitan Rly. Co. (1867) L.R. 2 H. of L. 175; Lyon v. Fish-
mongers Co. (1876) 1 A.C. 662 ; Pollock, Torts (12th ed.) 410 n. /.
5 " Hankford. Dampnum puit estre absque injuria, coment si j'ay un molyn, et
mon vicine leve un auter molyn, peront le profite de mon molyn est diminish, j'averai
nul action vers luy, uncore il est damage a moy quod Thirning concessit," Y.B.
n Hy. IV. Hil. pi. 21.
■ Ibid
7 " Nient semble, pur ceo que in vostre cas vous avez frank tenement et enherit-
ance en le Market, mes icy le plaintiff ont nul estate en le School mastership etc., mes
pur le temps non certein, et il sera encounter reason, que un Master sera disturbe a
426 CRIME AND TORT
was quite in harmony with the principle recognized by the common
law that, except as restrained by rules of the statute or common
law, trade ought to be free.1 The principle was restated by Holt,
C.J., in Keeble v. Hickeringill ;2 but with the qualification that, if
violent or other illegal means were used by the defendant to further
his interests at the expense of the plaintiff, an action would lie.3
We shall see that the application of this principle has, like the
application of the principle that trespass or case will lie if a man
is damaged by menaces to his tenants or servants,4 helped to de-
velop a very important branch of the law of tort in modern times.5
The only other important wrong to property which need here
be mentioned is the tort of deceit. We have seen that in the
Middle Ages its scope was very narrow, but that it was widened
by the application to it of the action on the case.6 We have seen
that this action on the case for a deceit was applied chiefly to
deceits in the performance of certain contracts, and that it played
some part in the development of the action of assumpsit.7 The
earliest development of deceit was therefore in connection with
contracts.8 As deceit on the case could be brought, either for the
breach of an express warranty, or for damage occasioned by a
statement known to the maker to be false, it was perhaps natural
that the conception of deceit as an independent tort, consisting in
making a false statement with knowledge of its falsity to the
damage of another, did not readily emerge. But we have seen
that the conception of deceit was, during this period, being
rendered more precise by cases turning mainly upon the contract
of sale ; 9 and it was the analysis of the nature of deceit in these
cases which helped the courts in 1789, in the case of Pasley v.
Freeman™ to allow an action in tort for a false and fraudulent
statement which caused damage to another,11 though there was no
contractual relation between the deceiver and the person deceived.12
tenir Schole ou luy pleist, sinon que le fuit en cas ou un University fuit corporate, et
Escholes fondus sur ancient temps, et en case d'un molyn (comme jeo disoy avant) si
mon vicine levy un molyn, auters que soloient moulder a mon molyn, alent a Tauter
molyn, peront mon tolne est amenus, pur eel cause jeo n'avera my action," Y.B.
11 Hy. IV. Hil. pi. 21 per Hankford, J. ; " et l'opinion del Court fuit que le briefe ne
gist my."
1 Vol. iv. 350.
2 (1707) 11 Mod. 74, 130 ; 3 Salk. 9; Holt, 14, 17, 19 ; the best report of Holt,
C.J. 's judgment is that taken from his MSS. in 11 East 574 note.
3 11 East at p. 576. 4 Above 423. 5 Below 431.
6 Vol. iii 407-408. 7 Ibid 429 and n. 3.
8 Ibid 407-408 ; above 68. » Above 68-69. 10 (1789) 3 T.R. 51.
11 Especially the broad statement of Croke, J., in Baily v. Merrell (1616) 3 Bulstr.
at p. 95 that " when these two (fraud and damage) do concur and meet together, there,
an action lieth," which was cited by Buller, J., 3 T.R. at p. 56, and by Lord Kenyon
C.J., at p. 64.
12 Grose, J., in his dissenting judgment, 3 T.R. at p. 53, said, " When this
was first argued at the bar ... I confess I thought it reasonable that the action
should lie ; but, on looking into the old books for cases in which the old action for
r
i
THE PROCESS OF DIFFERENTIATION 427
(3) Wrongs to domestic relations.
• We have seen that in the Middle Ages the peculiar status of
wards, infants, wives, and servants was very much more emphasized
than it is in modern law.1 We have seen too that the law of
property, and the remedies for the infringement of proprietary
rights, were then much more highly developed than the law of
contract, and the remedies for breach of contract.'2 It is in the
period when these ideas were predominant that the law relating to
these kinds of wrongs originated ; and all through the history of
this branch of the law they have made their influence felt. It is
this fact which helps to account for the unsatisfactory state of some
of our modern rules.
It was in the case of the ward who was heir to property that
the proprietary character of the father's or guardian's rights were
most evident. The law knew a writ of right of wardship ; 3 and
it very early adapted the writ of trespass to the purpose of pro-
tecting the father's or the guardian's rights, by the invention of
writs for the ravishment of the ward4 But on this branch of the
law the long life of feudal wardship, and the great value of the
feudal incident of marriage, exercised a very unfortunate effect.0
These two reasons led the law to take the view that what it
protected was not the rights of the parent or guardian as such,
but the pecuniary interest which the parent or guardian had in
the marriage of his heir. It followed, therefore, that these
remedies were not available for the abduction of any child, but
only for the abduction of a child who was an heir. Trespass, it
was said in BarJiam v. Dennis,6 was based upon a proprietary
interest, and in a son or daughter a father had no property. It
was only available, therefore, to protect the father's proprietary
interest in the child's marriage.7 For this reason the courts
deceit has been maintained upon the false affirmation of the defendant, I have changed
my opinion. The cases on this head are brought together in Bro. tit. Deceit pi. 29,
and in Fitz. Abr. I have likewise looked into Danvers, Kitchins, and Comyns, and 1
have not met with any case of an action upon a false affirmation, except against a party
to a contract, and where there is a promise, either express or implied, that the fact is
true which is misrepresented."
1 Vol. iii 61-65, 215 (wards), 513-520 (infants), 520-533 (wives) ; vol. ii 460-463
(servants).
2 Ibid 355-356, 590. 3 Vol. iii 17. * Ibid 17, n. 1, 27.
5 For these incidents see vol. iii 61-66, 516. 6(i6oo) Cro. Eliza. 770.
7 " They held also that the father should not have an action for the taking of any
of his children which is not his heir ; and that is by reason the marriage of his heir
belongs to the father . . . and by reason of this loss only the action is given unto him.
. . . But for the taking of a son or daughter not heir, it is not upon the same reason, and
therefore not alike. Here the father hath not any property or interest in the daughter,
which the law accounts may be taken from him," ibid at p. 770 ; and it would seem
from Gray v. Jefferies (1587) Cro. Eliza. 55 that this remedy was only available when
one took the heir and married him, and that it did not lie for the loss of the marriage
for any other reason, or for injuries to the child, even if these injuries occasioned the
loss of the marriage.
428 CRIME AND TORT
refused to recognize that the father had the same kind of pro-
prietary interest in his child as he had in his servant1 or his wife.2
The result was that his interest in his children was unprotected
unless the child happened to be his heir.
One of the judges, indeed, in Barham v. Dennis was pre-
pared to take a more liberal view. "The father," said Glan-
ville, J.,8 "hath an interest in every one of his children to educate
them, and to provide for them ; and he hath his comfort by
them ; wherefore it is not reasonable that any should take them
from him, and to do him such an injury, but that he should have
his remedy to punish it." If his view had prevailed, the develop-
ment of this branch of the law would have been infinitely more
satisfactory. As it did not prevail the law was driven to find a
remedy, by the application to the relation of parent and child, of
the writ provided to protect the relation of master and servant ;
and the result is, as Sir F. Pollock has pointed out, that the
development of the law has been "halting and one-sided."4 No
doubt this device helped to mitigate the hardship of the law, more
especially as very slight acts of service were, in later law, allowed
to be sufficient to support an action.5 But it did not afford a
complete remedy. If, for instance, the child was too young to be
capable of service, no action would lie for injuries to it.6
It is the application of this remedy to the relation of parent
and child which is still used to give a remedy to a parent for the
commonest and most flagrant injury to his rights as a parent — the
seduction of a daughter. It would seem that it was in the middle
of the seventeenth century that this particular application of
trespass was made. In 1653, in the case of Norton v. Jason," the
plaintiff brought Case forentering his house, assaulting his daughter,
and getting her with child. Rolle, C.J., gave it as his opinion that,
"although the daughter cannot have an action, her father may,
although not for entering into his house, because it was with his
leave, nor for assaulting his daughter, and getting her with child,
1 Below 429. 2 Below 430.
3 Cro. Eliza, at p. 771. 4 Torts (12 ed.) 226.
5 In Y.B. 22 Hy. VI. Mich. pi. 49, p. 31, Newton, C.J., lays it down that the
relation of master and servant cannot be presumed from the relation of parent and
child — " Si jeo porte bref de Transgressio quare filinm meum et haeredem in servicio
meo existentem rapuit, jeo voile bien que eel bref ne vaut : le cause est, tout soit il
[rapuit] mon fitz et heir, il n'est enclude en ce qu'il est mon servant : car il poit servir ou
luy plest" ; but the later law was not so strict, see Weedon v. Timbrell (1793) 5 T.R.
at p. 361 per Ashurst, J. ; cp. Jones v. Brown (1794) 1 Esp. 217 ; Evans v. Walton
(1867) L.R. 2 CP. at p. 619 per Bovill, C.J. ; in the last named case Bovill, C.J.,
says, " no evidence of service is necessary beyond that which the law will imply as
between parent and child " — a view of the law quite contrary to that of Newton, C.J.
6 Hall v. Hollander (1825) 4 B. and C. 660 ; but Bayley, ]., thought that the
father might have Case for expenses occasioned by the child's cure — a view which has
been followed in the United States, Street, Legal Liability i 268 n. 7.
1 Style 398.
THE PROCESS OF DIFFERENTIATION 429
because this is a wrong particularly done to her, yet for the loss of
her service caused by this he may have an action." But, he added,
"it is a pretty case and fit to be argued." There is another case
of 1664 in which the plaintiff brought, not Case, but trespass quare
clausum fregit ; ' but this form of action was obviously inapplicable,
as Rolle, C.J., had pointed out, if the entry was by the leave and
licence of the father. These cases, however, made it clear that
the principle on which the modern action for seduction rests had
been reached. It was laid down in 1664 that, if trespass quare
clausum fregit was brought, the damages were not limited to the
loss of service, but that the injured feelings of the parent could be
taken into account, as an aggravation of the wrong done in break-
ing his close.2 If, on the other hand, Case was brought per quod
servitium amisit, the injured feelings of the parent could be con-
sidered in assessing the damages for loss of service.3
The courts have thus done their best to adapt this remedy to the
case of seduction. But the incompleteness of the remedy is here
even more marked than in other cases of injuries to children. For,
in the oft-quoted words of serjeant Manning,4 " the quasi-fiction
of servitium amisit affords protection to the rich man whose
daughter occasionally makes his tea, and leaves without redress the
poor man whose child is sent unprotected to earn her bread amongst
strangers."
Of the remedies given by the law for the abduction of a
servant I have already spoken.5 We have seen that they were
supplemented by the provisions of the Statutes of Labourers.
They rested at bottom on the idea that the master had a quasi-
proprietary interest in his servant's services ; and that idea is
connected with ideas as to the status of a servant, which originated
in the rules of law applicable to villein status. We have seen, too,
that these rules were made the foundation in Lumley v. Gye 6 of an
entirely new development of the law. In that case the real right
of the master to his servant's services, was in effect given to all
persons entitled to the benefit of any contract ; for it was laid
down that it is an actionable wrong to interfere, without just cause
or excuse, with any existing contractual relation.
The same principles as were applied to the servant were applied
1 Sippora v. Basset i Sid. 225.
s " Quant ceo est ex turpi causa come fuit icy, l'accion poet esse done in evidence
sur tiel general declaration south les parolles (alia enormia), et le reason est, quia le ley
ne voet compell le party de monstre ceo de record. Mes en touts auter cases de trespass
le special matter pur que damages serra done doet estre plead," 1 Sid. 225 ; cp.
Russell v. Corne (1704) 2 Ld. Raym. at p. 1032 per Holt, C.J.
3 Bennett v. Allcott (1787) 2 T.R. at pp. 167-168 per Buller, J.
4 Note to Grinnell v. Wells (1844) 7 M. and Gr. at p. 1044.
5 Vol. ii 462-463 ; vol. iv 383-385.
8 (1853) 2 E. and B. 216 ; vol. iv 384-385.
430 CRIME AND TORT
to the wife. The husband's interest in his wife's consortium,
unlike the parent's interest in the consortium of his children, was
considered to be sufficiently proprietary to support an action of
trespass.1 This is quite distinct from the right which the husband
had, jointly with his wife, to sue for wrongs committed against
her.2 The latter right depended upon the incapacity of the wife
to sue in her own name.3 It was the incapacity of the wife to
consent, which was the principle upon which the husband was
allowed to bring the particular form of the action of trespass or
action on the case, known as the action of criminal conversation,
against one who had committed adultery with his wife.4
(4) Wrongs connected with commerce and industry.
Certain of the wrongs with which I have dealt in this and
preceding chapters bear witness to the growing importance of
commerce and industry. Some aspects of the law of defamation,
of malicious abuse of the process of the courts, and of nuisance,
the development of the conception of deceit, and the development
of the idea of conversion — all afford illustrations. In addition,
there is a solitary case of 1580 or 1595, in which an action of
deceit was maintained for counterfeiting another's trade mark.6
But much the most important instance of this influence on the law
of tort is the beginning, at the close of this period, of the modern
doctrine of employer's liability, with the history of which I shall
deal in the following section.0 Indeed, if we except this doctrine,
it may I think be said that the growth of industry and commerce
has not, during this period, exercised so great an influence on the
law of tort as might have been expected. The explanation of this
phenomenon is, it seems to me, somewhat as follows : —
We have seen that during the whole of this period all branches
of commerce and industry were minutely regulated by the
Legislature.7 Wages were in theory fixed by the justices; and
combinations to alter the rates of wages thus fixed were illegal.
1 Guy v. Livesey (1619) Cro. Jac. 501 ; Hyde v. Scyssor (1620) ibid 538.
2 Hyde v. Scyssor (1620) Cro. Jac. 538 ; Russell v. Corne (1704) 2 Ld. Raym.
1032.
3 Vol. iii 526 ; cp. vol. v 315.
4 See Galizard v. Rigault (1702) 2 Salk. 552, where the right to bring this action is
assumed by Holt, C.J. ; Street, Legal Liability i 264 ; as Mr. Street has pointed out,
ibid 269 n. 1, " the idea in allowing trespass for assault and battery to be used in an
action for seduction is that the girl's consent to the act of intercourse is irrelevant as
against her father, just as the consent of the wife is irrelevant as against her husband,
in an action for criminal conversation " ; cp. Pollock, Torts (12th ed.) 227 n. i, and
228 n. /.
5 Cited by Dodderidge, J., in Southern v. How Popham 144, as decided 22 Eliza ;
but in Cro. Jac. 471 it is said to be decided 33 Eliza. ; as Mr. Street has pointed out,
op. cit. i 418-419, it was not till the eighteenth century that this branch of the law
began to develop.
6 Below 472-482. 7 Vol. iv 314-407 ; vol. vi 313-360.
EFFECTS OF THESE DEVELOPMENTS 431
Forestalling and regrating were offences known to the law. The
corn laws tended to keep uniform the price of corn. There were
many regulations and restrictions both as to apprenticeship and
modes of manufacture. The difficulties placed by the Legislature
on the assumption of corporate form,1 tended to prevent the
formation of large combines of manufacturers. In addition, in
certain localities there still existed restrictions imposed by local
bye-laws, under the authority of powers conferred by mediaeval
charters. When, in the course of the nineteenth century, nearly
all the restrictions imposed by these multifarious laws were swept
away under the influence of the doctrine of laissez faire, a number
of new problems were set to the law of crime and tort We have
seen that one, and perhaps the most important of these problems,
arose in connection with the crime and the tort of conspiracy.2
But the same causes which led to the growth of this branch of the
law of tort, led also to the growth of other branches. The
principle of cases like Garret v. Taylor* and more especially of
Keeble v. Hickeringill,*1 and the exact definition of the new tort
resulting from the decision in Lumley v. Gye* all assumed great
importance in cases which turned on the legality of certain
activities of Trade Unions of employes and combinations of em-
ployers. Indeed, the fact that the common law could, from the
basis of the principles contained in the Year Books and cases of
this period, construct a body of law which was fitted to regulate
the new industrial problems, to which the era of laissez faire had
given rise, is perhaps the strongest illustration, in modern times,
of the adaptability, and of the practical character of the principles
evolved by a system of case law.
The Effects of these Developments on the Growth of the Law
We can, I think, distinguish three important effects of these
developments on the growth of the law.
Firstly, the development of the substantive law in and through
the forms of action, made it sometimes unreasonable, and some-
times excessively technical. The manner in which the fiction of
per quod servitium amisit was used to supplement the defective
character of the remedies given for wrongs to domestic relations,
is the strongest instance of the evolution of an unreasonable set of
rules.6 The manner in which the rights of the parties were made
dependent upon the correct appreciation by the pleader of the
1 Above 219-221. - Above 384, 392-397.
8 (1621) Cro. Jac. 567 ; above 423.
* (1707) n East 574 note ; above 426.
s (1853) 2 E. and B. 216 ; above 429. 8 Above 42S-429.
432 CRIME AND TORT
right form of action x — more especially, in later law, on the often
fine distinction between Trespass and Case ; 2 and the impos-
sibility of joining two causes of action which fell under different
forms,3 — are both striking illustrations of the technical character of
its rules.4
But secondly, the growth of specific torts, and the definition of
the essential characteristics of these torts, helped to concentrate
attention on the substantive rules of the law of tort. In the
mediaeval period the law of tort was largely contained in the rules
as to the competence of various forms of action — Detinue and
various forms of Trespass, Case and the various forms of Case.
During this period, the law was acquiring a number of substantive
rules, which are independent of adjective law ; and this new
importance of the rules of substantive law will increase during the
eighteenth and early nineteenth centuries. This meant that the
problem of distinguishing damna cum from damna sine injuria
was presented to the courts in a somewhat different form. We
have seen that, in the Middle Ages, the growth of the action on
the case had brought this problem before the courts ; 5 and in the
law of this period and later it was often before the courts. But,
while in the Middle Ages it was regarded rather as a problem re-
lating to the competence of actions, in later law it is regarded as
a problem relating to the substantive rights of the parties. It
may be that, in many cases, " discussions of legislative principle
have been darkened by arguments on the limits between trespass
and case, or on the scope of a general issue " ; and that " in place
of a theory of tort we have a theory of trespass." 6 For all that,
it is true that, during this period, the law is much nearer to a
theory of tort than it was in the Middle Ages.
Thirdly, these developments necessitated a thorough revision
of the mediaeval principles of civil liability for wrong. We have
seen that many of the later developments of the older torts, such
as assault and battery, involved a consideration of the intention of
the defendant ; 7 an intention to deceive was the essence of deceit ;
and malice was an essential element in the tort of malicious
1 Maitland, Forms of Action 298, 361-362.
2 " We must keep up the boundaries of actions, otherwise we shall introduce the
utmost confusion," Reynolds v. Clarke (1726) 1 Str. at p. 635 per Lord Raymond, C.J. ;
this dictum was cited with approval by Blackstone, J., in Scott v. Shepherd (1773)
2 W. Bl. at p. 8g7 ; see also Savignac v. Roome (1794) 6 T.R. at p. 130 per Grose, J.
3 " A man who had been assaulted and accused of theft in the market place of his
town was obliged, if he wished for redress for the double wrong, to issue two writs
and to begin two litigations, which wound their course through distinct pleadings to
two separate trials," Bowen, Administration of Justice in the Victorian Period, Essavs
A.A.L.H. i 518.
4 For other illustrations in other branches of the law see vol. i 634 and n. 2, 645.
6 Vol. iii 408. 6 Holmes, The Common Law 78.
7 Above 422.
CRIMINAL LIABILITY 433
prosecution.1 The large mass of wrongs to person and property
remedied by actions on the case, were coming to depend on the
question whether the defendant had acted negligently to the
damage of the plaintiff, and not merely on the question whether
he had caused him damage by his act Commercial necessities
were showing that the mediaeval rules as to the master's liability
for the acts of his servants were too narrow. Of the manner in
which all these causes transformed the mediaeval principles of
civil liability I shall speak in the following section.
§ 6. The Principles of Liability
Criminal Liability
We have seen that during the mediaeval period criminal, un-
like civil liability, was based upon the presence of a mens rea.
We have seen, too, that the rules as to the possible defences to
a criminal charge, and as to incapacities which would excuse
from guilt, or mitigate punishment, were growing more precise ;
and that this growing precision was partly the cause, and partly
the effect of the firmness with which the central principle of the
criminal liability — the need for a mens rea — had come to be
grasped.2 During this period, (i) the nature of this mens rea
in relation to various specific crimes was being analysed and
elaborated ; and (2) the same process of analysis and elaboration
was taking place with reference, both to the incapacities which
would excuse from guilt, and to some of the defences which
might be made to a charge of crime. Under these two heads,
therefore, I shall sketch shortly the development of this branch
of the law.
(1) The requirement of mens rea.
It was well settled in the sixteenth century (in spite of the
opinion to the contrary held in the fourteenth century)3 that a
mere intention to commit a crime, unaccompanied by any overt
act, entailed no criminal liability. " The imagination of the mind
to do wrong," it was said in Hales v. Petit,* " without an act done, is
not punishable in our law, neither is the resolution to do that wrong
which he does not, punishable, but the doing of the act is the only
point which the law regards ; for until the act is done it cannot
be an offence to the world, and when the act is done it is punish-
able." And by an act was meant a voluntary act, so that, " if A
by force takes the arm of B, and the weapon in his hand, and
1 Above 391. * Vol. Hi 372-375.
5 Ibid 373 and n. 4. 4 (1563) Plowdcn at p. 259.
VOL. VIII.— 28
434 CRIME AND TORT
therewith stabs C, this is murder in A, but B is not guilty."1 In
fact, the manner in which the common law courts adopted the
Star Chamber's view as to the criminality of attempts to commit
crimes,2 and treated these attempts as common law misdemeanours,3
removed the chief reason for reviving the dangerous doctrine that
a mere intent to commit a crime entailed liability.
To produce criminal liability, therefore, there must be both
an act and a guilty intent. It followed that if one killed another
accidentally he did not commit murder — " for it is the will and
intention that is regularly required, as well as the act and event,
to make the offence capital."4 So in the case of larceny, "as it
is cepit and asportavit, so it must befelonice or animofurandi, other-
wise it is not felony, for it is the mind that makes the taking of
another's goods to be a felony or a bare trespass only." 5 It
followed also that, though ignorance of law never excused from
criminal liability,6 ignorance of fact might, if it negatived any sort
of guilty intent7 This principle was applied in 1639, in the case of
R. v. Levett* where the accused, under the mistaken but justifiable
impression that a person in the house was a burglar, killed her.
The more difficult question now arises, what is the nature of
this guilty intent which the law requires as a condition of criminal
liability ? The answer in general terms is that it is different in
different classes of crimes — in 1503, for instance, Marowe saw
that the guilty intent required for murder was different from that
required for larceny ; 9 and that, in certain classes of crimes, the
law has specified certain kinds of acts, and ruled that the doing of
them amounts to the guilty intent required by the law for the
commission of these crimes. We have seen that in other branches
of the law there was a tendency in this direction, which was partly
due to the difficulty of proving intent, where the parties to an
action were not competent witnesses ; 10 and no doubt the tendency
was emphasized in the criminal law from motives of public
policy. The safety of the state and its citizens made it necessary
that the meagre mediaeval rules should be extended. The result
1 Hale, P.C. i 434, citing Reniger v. Fogossa (1551), Plowden at p. 19 ; but it was
only physical violence which operated in this way — " if it be only a moral force, as by
threatening, duress, or imprisonment etc. this excuseth not," ibid ; see below 443-445.
2 Vol. v 201. 3 Kenny, Criminal Law 82.
4 Hale, P.C. i 38. 5 Ibid 508. 6 Ibid 42.
7,4 But in some cases ignorantia facti doth excuse, for such an ignorance many
times makes the act itself morally involuntary," ibid.
» (1639) Cro. Car. 538.
9 De Pace, Oxford Studies in Social and Legal History, vol. vii 378. — " Et nota
que en mort de home lentent de celui que fait le morte ne fait le felony come il fait
de Theft. . . quar si home entende de bater ascun person et en cette baterie il tua une
autre, ceo est felony nient obstante son entent ne fut de luy occider. Mes en ascun
cas de mort de homme entent ferra le felony."
10 Vol. iv 481-482.
CRIMINAL LIABILITY 485
is that the mens rea or guilty intent required by the law, though
it originated in the idea that accompanying the act there must be
an element of moral blameworthiness, though it still connotes such
moral blameworthiness, has become a very technical notion. Its
assumption of this technical form is mainly the work of this period
of our legal history. Let us take as illustrations of this process
the manner in which it has come to be defined in relation to
murder, manslaughter, and larceny.
It is clear that Coke was stating a well settled principle when
he says of the " malice prepensed " or " malice aforethought " which
is necessary for murder, that it exists "when one compasseth to
kill wound or beat another and doth it sedato animo " ; and that
this malice was " so odious in law," that " though it be intended
against one, it shall be extended towards another." l So far as the
compassing is a compassing to kill, this definition gives us the natural
meaning of the term ; but in the statement that a compassing to
wound or beat, and still more in the statement that a blow intended
for another, will, if death ensues, amount to malice aforethought, we
are departing from the natural meaning of words. But this exten-
sion was still further extended in the course of the sixteenth century.
It was held by a majority of the judges in 1 536,2 that, if a person
was killed accidentally by one of the members of a band engaged
on a felonious act, all could be held to be guilty of murder. The
judges in this case were not unanimous ; 3 but it was the opinion of
the majority which has prevailed.4 A fortiori malice was implied
if A assaults B with intent to rob him, and in the course of the
struggle A kills B.5 " He that doth a cruel act voluntarily," said
Holt, C. J., " does it of malice prepensed." 6 This idea was further
extended to cover the case where an act likely to cause damage
had caused death, though there was no intention to hurt anyone.7
It was not difficult to conclude from this that murder was com-
mitted, if death had ensued as the result of doing any unlawful
1 Third Instit. 51, citing inter aba Bracton's dictum at f. 155a that " si quis unum
percusserit et occiderit, cum alium percutere vellet in felonia, tenetur " ; this was no
doubt the source of Marowe's similar statement, above 434 n. 9. Halloway's Case
(1629) Cro. Car. 131 ; Hale, P.C. i 466 ; we have seen that Marowe states the law even
more widely.
2 Mansell and Herbert's Case, Dyer 128b — a mob had assembled in order to
assault and rob a house, and a woman coming out of the house was killed by a stone
thrown by one of the mob at another person.
3 The dissentient judges were evidently reluctant to extend the meaning of malice ;
they said, " no malice was intended against the woman, and murder cannot be ex-
tended beyond what was intended."
4 Above 329 ; Hale, P.C. i 441-442.
8 Ibid 465 ; Coke, Third Instit 52.
8 R. v. Mawgridge (1707) Kelying at p. 127 ; cf. Coke, Third Inst., 62—" if it
be voluntary the law implieth malice."
7 See R. v. Hull (1664) Kelying, 40 ; Foster Crown Law, 262-263 ; Kenny op. cit.
135-136.
436 CRIME AND TORT
act.1 This wide rule was, however, narrowed down by Foster to
the case when the unlawful act was also felonious and malum in
se — e.g. if A, intending to steal B's poultry, shoots at them and
accidentally kills C.2 But it is probable that even this mitigated
form of the rule would not now be followed.3 Another extension
recognized in this period is, however, still part of the law — the
case where a person kills an officer of the law, or magistrate, in
the regular 4 execution of his duty, though he had no intention of
killing him.5 In these ways, through the decisions given in this
period, the particular mens rea known as malice aforethought
which was needed to make homicide murder, was so extended
that it has come to be, as Professor Kenny has said, merely an
"arbitrary symbol." G " For the malice may have in it nothing really
malicious, and need never be really aforethought." 7
Manslaughter is said by Hale to be " the voluntary killing of
another without malice express or implied." 8 But this does not
mean, as Professor Kenny points out,9 that there is no mens rea.
It merely means that the guilty intention is of a different character.
The character of the guilty intent required was, it would seem from
Hale, elucidated chiefly by cases which drew the line between
murder on the one hand, and a merely accidental killing on the
other. Some of these cases depend on the fact that the person
who caused the death has been careless — e.g. the case of the builder
who drops a piece of stone without due warning ; 10 and often the
question whether murder or manslaughter has been committed will
depend on the degree of carelessness shown.11 Others depend on
the fact that, though there was no intention to cause death, the
death was in fact caused by the accused in the course of doing an
1 " If the act be unlawful it is murder. As if A meaning to steal a deer in the
park of B shooteth at the deer, and by the glance of the arrow killeth a boy that is
hidden in a bush : this is murder, for that the act was unlawful, although A had no
intent to hurt the boy nor knew not of him,'' Coke, Third Instit. 56.
2 Crown Law, 258-259 — " The rule I have laid down supposeth that the act from
which death ensued was malum in se. For if it was barely malum prohibitum, as
shooting at game by a person not qualified by statute law to keep or use a gun for
that purpose, the case of a person so offending will fall under the same rule as that of
a qualified man."
3 Kenny, op. cit. 137-138.
4 Cook's Case (1639) Cro. Car. 537 ; Hale, P.C. i 458.
5 Young's Case (1586) 4 Co. Rep. 40a ; Mackalley's Case (1612) 9 Co. Rep. at
ff. 68a, 68b ; Hale, P.C. i 457 seqq. G Op. cit. 132
7 Ibid 132-133 as Stephen, J., said in R. v. SernS (1887) 16 Cox C.C. at p. 312,
" the words malice aforethought are technical. You must not, therefore, construe
them or suppose that they can be construed by ordinary rules of language. The words
have to be construed according to a long series of decided cases, which have given
them meanings different from those which might be supposed."
8 P.C. i 466.
9 Op. cit. 115 — " we shall better avoid confusion of language if we say, * without
any of those more guilty forms of malice which amount to murderous malice.' For
malice, in its wide legal sense (that is to say mens rea) is essential to every crime."
M R. v. Hull (1664) Kelyng 40. " Above 435 n. 7.
CRIMINAL LIABILITY 437
unlawful act — eg. playing at an unlawful game1 — but an act not
sufficiently unlawful to make the homicide murder.2 Others de-
pend on the fact that the death occurred in the course of a sudden
quarrel which negatived the idea of premeditation ; 3 and, for the
same reason, a homicide committed under severe provocation will
generally be manslaughter, if done in the heat of the moment4
Here again, therefore, the mens rea required by the law may be of
the most various kinds, and of all degrees of moral guilt It is for
this reason that manslaughter is said to be "an elastic crime," " for
the degrees of guilt which may accompany it extend from the verge
of murder to the verge of excusable homicide." 5
In the case of larceny it is the intention to steal which makes
all the difference between the felony and a bare trespass. But
whether this intention is present or not must be judged by the
circumstances of the case. Hale considered that it was possible to
illustrate, but not to define, " all the circumstances evidencing a
felonious intent" 6 From that day to this, the reported cases have
gone on illustrating these circumstances, till it is possible to lay
down one or two general rules ; and, even when Hale wrote, one
or two of them had emerged. Thus, it was no felony to take A's
horse from a common for a ride, when the horse was restored to
the common at the end of the ride." Similarly, if my servant
takes my horse and uses him for his own occasions, it is no felony
if he returns him ; but if, while on his journey, he sells him as if
he were his own, "that act of selling" is declarative of his first
taking to be felonious." 8 Again, " if A, thinking he hath a title
to the horse of B, seiseth as his own, or, supposing that B holds of
him, distrains the horse of B without cause, this regularly makes
it no felony but a trespass, because there is a pretence of title, but
yet this may be but a trick to colour a felony, and the ordinary
discovery of a felonious intent is, if the party doth it secretly, or
being charged with the goods denies it " 9
These illustrations show that the growth of the criminal law is
largely bound up with the elaboration and differentiation of the
different sorts of mental attitude, which is needed to constitute a
mens rea in different classes of crimes ; for, when this elaboration
1 Hale, P.C. i 472-473.
- See Kenny, op. cit. no ; it is on this principle that one who kills another in a
duel is guilty of murder, vol. v 199-201.
3 Coke, Third Instit. 55 ; above 303.
* Coke, Third Instit, 55 ; Royley's Case (1612) Cro. Jac. 296 ; Maddy's Case (1671)
1 Vent. 158.
5 Kenny, op. cit. 124.
• '* But in cases of larceny the variety of circumstances is so great, and the com-
plications thereof so mingled, that it is impossible to prescribe all the circumstances
evidencing a felonious intent, or the contrary, but the same must be left to the due and
attentive consideration of the judge and jury," P.C. i 509.
7 Ibid. "Ibid. Mbid.
438 CRIME AND TORT
and differentiation have been made, we have gone a long way to
defining the most essential features of these different crimes. We
shall now see that this same process has helped the law to attain
some more definite rules as to the various incapacities which will
excuse from guilt, and has had some influence on the law as to
some of the defences which can be made to a charge of crime.
(2) Incapacities and defences.
The three incapacities of which I intend to speak shortly are
infancy, insanity, and drunkenness.
Infancy. It would seem that the modern rules relating to the
incapacity of infants were first settled in the case of capital offences
— treason and the felonies. We have seen that it was well settled
in this period that a child below the age of seven could not be
guilty of a felony, that between seven and fourteen there was a
rebuttable presumption to the same effect, and that over fourteen
his capacity was regarded as normal.1 In fact, from that time to
this, there have been a few instances in which children of under
fourteen have been convicted, and one or two in which they have
even been executed ; 2 and Hale testifies to the fact that so many
crimes were committed by youths between fourteen and twenty-
one, that, " if they should have impunity by privilege of such their
minority, no man's life or estate could be safe."3 With regard to
crimes under the degree of felony, the law was not by any means
so certain. In the case of crimes of violence, such as riot or
battery, the same rule as that applicable to felony was enforced in
Hale's time.4 But then, as now, the misdemeanours covered a
wide field, and some of them, then as now, were remote from the
sphere of crime. For this reason, in certain of these cases, the
law adopted the rule applicable to the proprietary or contractual
capacity of infants, and exempted them from liability if they
were under twenty-one. Thus for mere nonfeasance (unless the
liability were ratione tenurae) they were exempt, because laches
could not be imputed to them.5 Similarly, if the law imposed a
penalty for a wrongful dealing with property, but the penalty could
be regarded as only collateral to the main purpose of the law, viz.
to discourage such dealings with property, an infant under twenty-
one escaped.*' But these exemptions are now probably obsolete ;
1 Vol. iii 372.
2 Hale, P.C. i 26-27 ; Bl. Comm. iv 23-24 ; Kenny, op. cit. 50-51.
3 "Experience makes us know, that every day murders, bloodshed, burglaries,
larcenies, burning of houses, rapes, clipping and counterfeiting of money, are com-
mitted by youths above fourteen and under twenty-one ; and if they should have im-
punity by the privilege of such their minority no man's life or estate could be safe,"
P.C. i 25.
4 Ibid 20. 5 Ibid ; see R. v. Sutton (1835) 3 Ad. and E. at pp. 601-603.
fi " When the corporal punishment is but collateral, and not the direct intention of
the proceeding against the infant for his misdemeanour, there in many cases the infant
CRIMINAL LIABILITY 439
and for all ordinary misdemeanours the rule is the same as in the
case of felony.
Insanity. — " No felony or murder," says Coke,1 "can be com-
mitted without a felonious intent and purpose . . . ; but furiosus
non intelligit quid agit, et animo et ratione caret, et non multum
distat a brutis, as Bracton saith, and therefore he cannot have a
felonious intent" For this reason insanity was a bar either to
the institution or the continuance of criminal proceedings. We
have seen that it was settled in the mediaeval period that madness,
if it existed when the crime was committed, negatived liability.2
It was further settled in this period that, if a person of sound
mind commits a crime and becomes mad before his arraignment,
he cannot be arraigned ; " and if such person after his plea and
before his trial, become of non-sane memory, he shall not be tried ;
or, if after trial he become of non-sane memory, he shall not
receive judgment ; or, if after judgment he become of non-sane
memory, his execution shall be spared ; for were he of sound
memory, he might allege somewhat in stay of judgment or
execution."3 In spite of some doubts as to whether these rules
were applicable to high treason, if it took the form of an attempt
to kill the king,4 these rules were recognized to be of universal
application in the seventeenth century.
There remain the much more difficult questions, (i) what the
law will regard as such insanity as will totally exempt from
criminal liability; and (ii) how it will treat what may be called
cases of partial insanity, that is cases where a person is clearly
not sane, and yet not wholly bereft of reason. No part of the
criminal law is so fluid as this, largely because it is a question
partly belonging to legal and partly to medical science ; and
because the latter science has, as medical knowledge advances
or the fashion in medical theory changes, adopted very variable
views on this matter.5 On two points however the law has been
clear from the seventeenth century onwards. Firstly, it is not
necessary, in order to escape liability, that the accused should
under the age of twenty-one shall be spared, though possibly the punishment be enacted
by Parliament. If an infant of the age of eighteen years be convict of a disseisin with
force, yet he shall not be imprisoned. . . . If an infant be convict in an action of tres-
pass vi et armis, the entry must be nihil dc fine, led pardonatur quia infans," P.C. i
21.
1 Beverley's Case (1603) 4 Co. Rep at f. 124b.
2 Vol. iii 372 and n. 9. 3 Hale, P.C. i 35.
* Coke said in Beverley's Case (1603) 4 Co. Rep. at f. 124b that, " in some cases
non compos mentis may commit high treason as if he kills or offers to kill the king " ;
but this is contrary to what he says in Third Instit. 6 ; and that it is not law is shown
by 33 Henry VIII. c. 20 (see vol. iv 409-500), as is practically admitted by Coke,
loc. cit. and by Hale, P.C. i 35, 37 ; but Hale, P.C. i 37, though he proves it to be
a baseless exception, refused to deny it " because it tends so much to the safety of
the king's person."
5 On the whole subject see Stephen, H.C.L. ii chap. xix.
440 CRIME AND TORT
have been found a lunatic by inquisition.1 " The trial of the
incapacity of a party indicted or appealed of a capital offence is,
upon his plea of not guilty, by the jury upon his arraignment,
who are to inquire thereupon touching such incapacity of the
prisoner, and whether it be to such a degree as may excuse him
from the guilt of a capital offence."2 Secondly, the law presumes
every one to be sane till the contrary be proved.3
(i) The first question — what the law will regard as such total
insanity as will exempt from all liability — is, as Hale says, a
question of fact. But on the question how this question of fact
shall be answered the law has given very different answers
at different periods. Professor Kenny says,4 "At one time a
view prevailed that no lunatic ought to escape punishment unless
he were so totally deprived of understanding and memory as to
be as ignorant of what he was doing as a wild beast. But, ever
since the epoch-making speech of Erskine in defence of Hadfield
(in the year 1800),5 a view at once more rational and humane has
prevailed, which bases the test upon the presence or absence of
the faculty of distinguishing right from wrong." Later, a still
more precise test was evolved. Did the accused know the nature
of the act which he was doing, and, if he did know it, did he
know it was wrong? If so, and if the act was contrary to law, he
is punishable.6 This test was suggested in reference to persons
suffering from insane delusions, i.e. the partially insane; but it
obviously supplies a test for coming to a conclusion whether or
not any person is wholly insane.
(ii) The second question — the treatment to be accorded to
cases of partial insanity — is far more difficult. Hale is evidently
at a loss how to deal with these cases. In cases of recurrent
intervals of madness, indeed, there is no difficulty. If during
these intervals the person affected is wholly mad, the rule as to
1 As to this see vol. i. 474-475. 2 Hale, P.C. i 33. 3 Ibid.
4 Op. cit. 53, citing R. v. Arnold (1724) 16 S.T. at p. 765, where Tracey, J., said,
" it must be a man that is totally deprived of his understanding and memory, and doth
not know what he is doing, no more than an infant, than a brute, or wild beast ;
therefore I must leave it to your consideration, whether the condition this man was in,
as it is represented to you on one side, or the other, doth show a man who knew what
he was doing, and was able to distinguish whether he was doing good or evil, and
understood what he did."
5 27 S.T. 1282 ; Stephen H.C.L. ii 159.
6 M'Naghten's Case (1847) 10 CI. and Fin. at p. 210 ; as is there said, " the mode
of putting the latter part of the question to the jury on these occasions has generally
been, whether the accused at the time of doing the act knew the difference between
right and wrong : which mode, though rarely, if ever, leading to any mistake with the
jury, is not, as we conceive, so accurate when put generally and in the abstract, as
when put with reference to the party's knowledge of right and wrong in respect to the
very act with which he is charged " ; as can be seen from the way in which Tracey, J.,
used this test in R. v. Arnold, above n. 4, the new test set out by the judges in
M'Naghten's case is more favourable to the accused, and better calculated to give
effect to the modern ideas as to the treatment to be accorded to the insane.
CRIMINAL LIABILITY 441
total insanity applies.1 But if the accused is not wholly destitute
of reason, he inclines to the view that such insanity will not
excuse in the case of any capital crime — "for doubtless, most
persons, that are felons of themselves, are under a degree of partial
insanity, when they commit these offences." On the whole, he
can only recommend that each case should be treated on its own
merits, and concludes with the somewhat fatuous suggestion that,
as such persons have generally as great understanding as a child of
fourteen, they should be treated accordingly.2 But, in spite of
this, Hale's treatment of the subject is, as Stephen says, " marked
by his ordinary shrewdness and judgment, and does recognize,
though faintly and imperfectly, the main divisions of the subject";3
and Blackstone4 could add little to his statement.
No authoritative pronouncement on this subject was made till
1843 ; and then the test suggested was, as we have seen, whether
the accused knew the nature of the act he was doing, and whether
he knew that it was wrong. It followed from this that, if a person
was labouring under a partial delusion, and was not in other
respects insane, " he must be considered in the same situation as
to responsibility as if the facts with respect to which the delusions
exist were real." 5 Since 1843, however, the law has developed,
because the discoveries of medical science have revealed more of
the infinite complexities of the problem of insanity. Thus it is now
recognized that, to the mind of a madman, there may be a con-
nection between his delusion and his crime, which is not apparent
to a sane person ; and that account should be taken of the effect
of insanity upon emotion and will power.6 These considerations
have led to a more merciful administration of the law, than a
literal following of the rules laid down in 1843, would justify. It
is obvious that the development of this branch of the law must, to
some extent, depend upon the development of medical science.
Drunkenness. — The rule laid down in the sixteenth century
was short and clear — drunkenness was no excuse for crime, but
rather an aggravation of the offence. " If a person that is drunk,"
it was said in 1 5 5 1,7 "kills another, this shall be felony, and
he shall be hanged for it, and yet he did it through ignorance,
for when he was drunk he had no understanding nor memory ;
but in as much as that ignorance was occasioned by his own act
and folly, and he might have avoided it, he shall not be privileged
thereby " ; and Coke,8 Hawkins 9 and Blackstone 10 lay down the
law in the same way. Hale, however, allows two modifications of
1 Hale, P.C. i 30-31. 2 Ibid 30.
3 H.C.L. ii 150-151. 4Comm. iv 24-25.
5M'Naghten's Case (1843) 10 CI. and Fin. at pp. 209-211.
6 Kenny, op. cit. 55-56. 7 Reniger v. Fogossa, Plowden at p. 19.
8 Beverley's Case (1603) 4 Co. Rep. at f. 125a ; Co. Litt. 247a.
9 P.C. Bk. 1 cap. 1 § 6. 10 Cornm. iv 25-26,
442 CRIME AND TORT
this rule. Firstly, if the intoxication was not caused by his own
fault, as where it was caused by " the unskilfulness of his physician
or by the contrivance of his enemies " ; and, secondly, if by habitual
drunkenness "an habitual or fixed phrensy be caused." l In the
first case it would seem that, if the effect of the intoxication was
such that a temporary or a permanent insanity were caused, the
person so affected was to be treated as if he were insane. But
there seem to be no cases of this kind in the books ; and, as we
shall see immediately, the development of the law as to the effect
of drunkenness on criminal liability has removed the necessity for
this exception. Probably at the present day drunkenness, whether
caused by the accused's own fault or not, will have the same effect
on his liability for a crime committed while in that state. At
most the fact that the drunkenness was not caused by his own
fault, would, if did not excuse from liability, be a ground for a
mitigation of punishment. In the second case the accused is, as
Hale says,2 treated as insane. But at the present day this treat-
ment is accorded, both in the case where the insanity is "fixed and
habitual," and where it is merely temporary. "Drunkenness,"
said Stephen, J.,3 " is one thing, and the diseases to which
drunkenness leads are different things; and if a man by drunken-
ness brings on a state of disease which causes such a degree of
madness even for a time, as would have relieved him from re-
sponsibility, if it had been caused in any other way, then he would
not be criminally responsible."
It is in respect of the effect of drunkenness, which does not
fall under either of these two heads, that the law in the nineteenth
century has departed from the older rule.4 If drunkenness does not
amount to insanity, the drunkard can, unlike the madman,5 be tried
and convicted.6 But, under the influence probably of the contem-
porary modifications which were taking place in the law as to
insanity,7 the judges began to think that drunkenness should be
allowed to modify or negative criminal liability in certain cases.
But exactly what these conditions were, and how in principle they
should operate, was for some time not very clear. There are some
loose dicta in the earlier cases ; 8 but in the middle and the latter
1 P.C. i 32. 2 ibid.
3 R. v. Davis (1881) 14 Cox C.C. at p. 564.
4 " The law stood as thus expressed for many years, and, as far as we know, the
point was first decided in a contrary sense in R. v. Grindley decided in the year 1S19,"
R. v. Meade [1909] 1 K.B. at p. 898.
8 Above 439.
6 See Director of Public Prosecutions v. Beard [1920] A.C. 479.
7 Above 440-441.
8 Thus in R. v. Grindley, 1 Russell, Crimes (7th ed.) i 88 n. b, Holroyd, J., said
that the fact that party was drunk, was a material fact to be considered in coming to a
conclusion whether or not an act was premeditated ; but this was repudiated by Park, J.,
in R. v. Carroll (1835) 7 C. and P. at p. 147, who said that Holroyd, J., had retracted
CRIMINAL LIABILITY 443
half of the nineteenth century, it was coming to be thought that,
" where intent is of the essence of a crime with which a person is
charged, that intent may be disproved by showing that at the time
of the act charged, the prisoner was in a state of drunkenness, in
which state he was incapable of forming the intent" l But in
1909, in R. v. Meade, the rule was laid down more broadly. It
was said that the presumption that a man intends the natural
consequences of his acts, may be rebutted by showing that his
mind was " so affected by the drink he had taken, that he was
incapable of knowing that what he was doing was dangerous, i.e.
likely to inflict serious injury."2 But in 1920, in the case of the
Director of Public Prosecutions v. Beard,3 the House of Lords
put the law on a clear and logical footing, by holding that, in as
much as a mens rea of one sort or another is, with very few ex-
ceptions,4 a necessary constituent of all crimes, the true rule is that,
if the drunkenness has produced in a person accused of a crime, an
incapacity to form the particular intent necessary for the commis-
sion of that crime, he cannot be convicted ; 5 and that it is only in
these circumstances that drunkenness, not amounting to insanity, is
a defence. 6
Let us now turn to certain defences which rest ultimately on
the fact that, in the circumstances, no mens rea is imputable.
These defences are coercion, compulsion, and necessity.
Coercion. — This, as Hale points out," is not usually a defence.
The doctrine of ministerial responsibility had, when Hale wrote,
been well established, and prevented the royal command from
being an excuse for the commission of crime. s It was also clear
that neither the command of a parent to his child, nor of a master
to his servant, was any defence.9 The only relationship which
could give rise to this defence was that of husband and wife. We
have seen that, during the mediaeval period, it was recognized
that, if a married woman committed certain crimes under the coer-
cion of her husband, she escaped from liability.10 This rule was
his opinion ; in R. v. Monkhouse (1849) 4 Cox C.C. at p. 56 Coleridge, J., ruled that
drunkenness might be a defence, " if such as to prevent his restraining himself from com-
mitting the act in question " ; cp. Director of Public Prosecutions v. Beard [1920] A.C.
at p. 495.
1 R. v. Meade [1909] 1 K.B. at p. 898.
3 At p. 898. * [1920] A.C. 479. * Vol. iii 374.
s " The difficulty has arisen, largely because the Court of Criminal Appeal used
language which has been construed as suggesting that the test of the condition of mind
of the prisoner is, not whether he was incapable of forming the intent, but whether he
was incapable of foreseeing or measuring the consequences of the act," [1920] A.C. at
pp. 503-504.
6 It is said, Kenny, op. cit. 61, that it *' may produce such a mistake of fact as will
in itself excuse an otherwise unlawful act " ; sed quart whether a mistake so produced,
unless it negatives the necessary intent, can or should have any effect on the drunken
man's liability. 7 Hale P.C. i c vii.
8 Ibid 43-44 ; vol, vi 101-103, 267. 9 Hale, P.C. i 44. 10 Vol. iii 530-531.
444 CRIME AND TORT
extended during the latter part of the seventeenth century. As
thus extended, it runs as follows : — Whenever any one of a
certain limited number of crimes is committed by the wife in the
presence of her husband, she is presumed to have committed it
under the coercion of her husband, and for that reason escapes
liability.1 Hale's 2 opinion was that the reason for thus extending
the law, and allowing coercion to be presumed from the mere
presence of the husband, was probably "because the judges
wished to give to married women some sort of rough equivalent
for the benefit of clergy enjoyed by their husbands."3 But the
limits of the rule are uncertain. It does not apply to treason or
murder,4 nor to misdemeanours specially connected with the
management of the house ; 5 and it can be rebutted by proof that
the wife was the active partner in the crime.6 Moreover, taken in
connection with the non-admissibility of this defence in other
cases, it may, as Stephen points out, produce obviously unjust
results. If a husband, wife, and their child of fifteen commit
larceny, though it be proved that the child acted under threats by
the father, and that no threats were offered to the wife, the child
will be convicted, and the wife will escape.7
Compulsion. — Hale lays it down that " in times of war and
public rebellion, when a person is under so great a power, that he
cannot resist or avoid, the law in some cases allows an impunity
for parties compelled, or drawn by fear of death, to do some acts
in themselves capital, which admit no excuse in the time of
peace." 8 The defence, therefore, is not available in time of peace.
There are apparently only two cases in which Hale's principle has
ever been put forward as a defence.9 The result is that the law
1 Stephen, Digest of the Criminal Law Art. 30 ; Kenny, op. cit. 71-72 ; it is fairly
clear from the authorities which are collected by Stephen, op. cit. 332-336, that the
rule, in its modern form, is not much older than Hale; Hale, P.C. i 45-46, admits
that there is authority against this form of it, and states it only as " the modern prac-
tice and fittest to be followed " ; it is probable that Bacon had something to do with
the establishment of the practice ; he says in his Maxims (Works Ed. Spedding vii
344) " where baron and feme commit a felony, the feme can neither be principal nor
accessory ; because the law intends her to have no will, in regard of the subjection and
obedience she owes her husband " ; but this, as Stephen says, " goes infinitely beyond
his authorities."
2 " Otherwise for the same felony the husband may be saved by the benefit of
clergy, and the wife hanged," P.C. i 45-46.
3 Stephen, H.C.L. ii 106 ; it was only a rough equivalent, for, as Hale says, P.C.
i 46, "in manslaughter committed jointly by husband and wife the husband may have
his clergy, and yet the wife is not on that account to be privileged by her coverture."
4 Hale, P.C. i 45.
8 " A wife may be indicted together with her husband, and condemned to the
pillory with him for keeping a bawdy house ; for this is an offence as to the govern-
ment of the house, in which the wife has a principal share," Hawkins, P.C. Bk. 1
Cap. 1 § 12.
6 R. v. Cruse (1838) 8 C. and P. 541.
7 H.C.L. ii 106. 8 P.C. i 49 ; vol. iii 372.
9 R. v. M'Growther (1746) Foster, Crown Law 13 ; R, v. Crutchley (1831) 5 C,
and P. 133 ; Stephen, H.C.L, ii 106,
CRIMINAL LIABILITY 445
relating to it is, as Professor Kenny says,1 " both meagre and
vague."
Necessity. — That certain kinds of public necessity will excuse
what would otherwise be a breach of the law, has long been a
recognized principle. Some illustrations of this principle have
been worked out into elaborate rules — the rules, for instance, as
to the measures which may be taken in self-defence,2 or to arrest
criminals,2 and the rules which are summed up under the mis-
nomer martial law.8 Lord Mansfield once suggested that an
extraordinary case might arise, in which imminent danger might
excuse the deposition of a colonial governor by his council ; 4 and
his statement was approved by the court in R. v. Dudley. b But
naturally the limits of this principle are and must be vague ; and
cases like that suggested by Lord Mansfield, will probably be
decided upon political, rather than upon strictly legal, considera-
tions. In cases which turn upon private rather than on public
necessity the law has always been very reluctant to admit this
defence. There are one or two dicta in the sixteenth century
pointing to its admission in certain cases ; 6 but it is now settled
that no private necessity is, as a general rule, allowed as an
excuse for the commission of a crime against some third person.
A man who is assaulted and in peril of death, has no right to kill
an innocent third person in order to effect his escape ; " and a man
who is in dire necessity for clothes or food or drink, has no right
to steal to satisfy his needs.8 It is just possible to imagine
exceptions to this general rule — but no case so far has occurred in
which the validity of such an exception had been admitted.9 As
Stephen says,10 " these cases cannot be defined beforehand, and
must be adjudicated upon by a jury afterwards, the jury not being
themselves under the pressure of the motives which influenced the
alleged offenders."
1 Op. cit. 73. 2 Vol. iii 312-314, 377378, 598-604.
3 Vol. i 578 ; vol. vi 52-54. * R. v. Stratton (1779) 21 S.T. at p. 1224.
5 (1884) 14 Q.B.D. at p. 285.
4 " If a man steal viands to satisfy his present hunger, this is no felony nor
larceny," Bacon, Maxims, Works (Ed. Spedding) vii 343 ; for which there is some
authority in the argument of Reniger v. Fogossa, Plowden at p. 19.
7 l< If a man be desperately assaulted and in peril of death, and cannot otherwise
escape, unless to satisfy his assailants' fury he will kill an innocent person then pre-
sent, the fear and actual force will not acquit him of the crime and punishment of
murder, if he commit the fact : for he ought rather to die himself than kill an innocent,"
Hale, P.C. i 51 ; R. v. Dudley (1884) 14 Q.B.D. 273. This rule is not inconsistent
with Bacon's dictum, Works vii 344, that, if a shipwrecked sailor on a plank thrust
another off to save himself from drowning, he commits no crime ; he does no bodily
harm to the other, and what he does is in self-defence ; see Kenny, op. cit. 76 n.
8 Hale, P.C. i 54-55; Bl. Comm. iv 31-32; as Blackstone points out, the poor
law makes such a permission quite unnecessary.
* See Kenny, op. cit. 76 n. 10 H.C.L. ii 109-110.
446 CRIME AND TORT
In these various ways the law, starting from the idea that
a mens rea or element of moral guilt is a necessary foundation
of criminal liability, has so defined and elaborated that idea in
reference to various sorts of crimes, that it has come to connote
very many different shades of guilt in different connections. But,
though mens rea has thus come to be a very technical conception
with different technical meanings in different contexts, it has
never wholly lost its natural meaning ; and, because its natural
meaning has never been wholly lost sight of, the necessity for its
presence, in some form, has supplied the principle upon which
many of the circumstances, which will negative criminal liability,
are based. These, in their turn, have been so developed that
they have become the foundation of different bodies of technical
doctrine ; and in these ways a large part of our modern criminal
law has been developed. We shall now see that the very
different developments which have taken place in the rules of
civil liability, have likewise created no inconsiderable part of our
modern law of tort.
Civil Liability
During the mediaeval period the principle which underlay the
law as to civil liability can be stated somewhat as follows : 1 A
man is liable for all the harm which he has inflicted upon another
by his acts, if what he has done comes within some one of the
forms of action provided by the law, whether that harm has been
inflicted intentionally, negligently, or accidentally. A man acts
at his peril. This absolute liability for damage caused by an act
which comes within one of the forms of action, even though the
damage is the result of pure accident, was restated by Bacon at
the end of the sixteenth century ; 2 and it was used by Hale in the
seventeenth century to point the contrast between criminal and
civil liability.3 It was logically followed out (i) in respect to the
defences open to a defendant, and (ii) in respect to a person's
liability for the acts of his servants, (i) A defendant could escape
from liability if he could prove that his act was, in the circum-
stances, permitted by the law, either in the public interest, or
in the necessary defence of his person or rights of property ; or
that the act, which was the immediate cause of damage, was done,
not by himself, but by the plaintiff; or that it was unavoidable by
reason of an 'act of God.'4 (ii) As a defendant was liable only
for his acts, he could not as a rule be held liable for any tort
committed by his servant, which he had not commanded or
1 See vol. iii 375-377. 2 Ibid 376-377.
s Ibid 375. * Ibid 377"379» 380.
CIVIL LIABILITY 447
ratified ; for unless he had commanded or ratified it, it could
not be said to be his act1
It is clear that this principle of civil liability rests ultimately
upon a very primitive basis. It obviously takes account, not of
the moral shortcomings of the defendant, but only of the loss
of the plaintiff; and this characteristic is reminiscent of the days
when the compensation payable was regarded, not as a penalty
for wrongdoing, but as a means whereby the plaintiff was in-
duced to forego his right to take revenge.2 But, as in other
cases, the precocious development of English law gave an un-
usually long life to this principle, because it had been made the
basis of a technical system of fixed rules. The result is that
some of the rules, to which it gave rise, long remained a part of
English law ; and the principle itself was unsuccessfully invoked
as a ground of liability as late as 1891.3
It was during this period that the principle began to be
Undermined. In the first place, a certain number of the new
torts, which were springing up in this period, were based on some
form of wrongful intent — they were essentially malicious wrongs.
In the second place, in a very much larger number of cases the
courts were beginning to base the defendant's liability, not on
the fact that he had acted, but on the fact that he had acted
negligently, to the damage of the plaintiff. Both these causes
tended firstly to restrict, and then to encroach^upon, the sphere
of the mediaeval principle. But the mediaeval principle, though
greatly restricted in its sphere, did not wholly disappear. A
place is still found for it in modern law ; but it is a very different
place from that which it occupied in the mediaeval law ; and it is
founded on very different principles. In the third place, at the
close of the seventeenth century, the beginnings of the modern
doctrine of Employers' Liability entirely changed the mediaeval
principles relating to this part of the law.
I propose to relate the history of these changes under the
following heads: — (1) the conceptions of wrongful intention and
negligence as bases of liability; (2) the place of the mediaeval
principle of liability in modern law; and (3) the doctrine of
Employers' Liability.
(1) The conceptions of wrongful intention and negligence as
bases of liability.
The part played by wrongful intention in the law of tort is and
always has been small. It has come to be an essential element in
1 Vol. iii 382-385. a Vol. ii 50-52.
* Stanley v. Powell [1891] 1 Q.B. 86.
448 CRIME AND TORT
the tort of deceit,1 of malicious prosecution,2 and of defamation,
when the words complained of were spoken on an occasion which
is protected by a qualified privilege.3 We have seen that at one
time the courts laid it down that malice was always an essential
element in the tort of defamation. But this malice was always
implied by the law from the making of the defamatory statement ;
and it is now recognized that it is not an essential element in the
tort.4 A very similar development has taken place in respect of
the new tort of persuasion to break a contract created by Lumley
v. Gye} It was at one time thought that its essence was the
malicious persuasion to break a contract.6 But that idea has
been ruled by the House of Lords to be erroneous.7 Just as the
essence of the tort of defamation is the publication of untrue de-
famatory statements without just cause or excuse, so the essence
of this new tort created by the case of Lumley v. Gye is the fact
that a breach of contract has been knowingly and wilfully procured
without just cause or excuse. The part, therefore, played by the
element of wrongful intention in creating civil liability is very small ;
and, except in the case of those torts in which the existence of
such an intention is an essential factor, the fact that such an intention
exists will not make an act, otherwise lawful, tortious. With
respect to the exercise of rights of property this proposition was
affirmed by the House of Lords in 1895,8 and with respect to the
exercise of other rights in 1 898 ; 9 and there can be little doubt
but that it is historically sound.10 We have seen that, in the
mediaeval period, the courts refused to base civil liability upon
intent — "the thought of man is not triable"; and, later, wrongful
intent was only partially admitted as a ground of liability in the
case of certain specified torts. The contrary decision would have
given to wrongful intent a far more extensive effect in creating
civil liability, than was warranted by any of the previous decisions.
It would, in effect, have given to it a different, but almost as ex-
tensive an effect, as negligence has come to have in the creation
of this liability.
1 Vol. iii 408 ; above 426. 2 Above 391.
3 Above 372, 375. 4 Above 374-375.
5 (1853) 2 E. and B. 216 ; for the development of this tort see vol. iv 383-385 ;
above 431.
6 Bowen v. Hall (1881) 6 Q.B.D. 333 ; Temperton v. Russell [1893] 1 Q.B. 715.
7 Allen v. Flood [1898] A.C. 1 ; at p. 121 Lord Herschell said, "A study of the
case of Lttmley v. Gye has satisfied me that in that case the majority of the Court re-
garded the circumstance that what the defendant procured was a breach of contract as
the essence of the cause of action. It is true that the word maliciously was found in
the declaration, the validity of which was then under consideration ; but I do not think
the learned judges regarded the allegation as involving the necessity of proving an evil
motive on the part of the defendant, but merely as implying that the defendant had
wilfully and knowingly procured a breach of contract."
8 Mayor of Bradford v. Pickles [1895] A.C. 587.
9 Allen v. Flood [1898] A.C. 1 ; and see Lord Herschell's statement at p. 124.
Ju See Pollock, Torts (12th ed.) 157-158.
CIVIL LIABILITY 449
We have seen that the idea that civil liability was based upon
negligence was unknown in the mediaeval common law. The
central idea of the mediaeval common law, was that civil liability
was based upon an act causing damage, if that act fell within one
of the causes of action provided for by the law.1 This idea obviously
excludes any direct reference to negligence as a cause of liability.
But we have seen that the conception of negligence is latent in the
principle that a man is only liable for the damage which is the
proximate consequence of his act.'2 The fact that the conception
of negligence is latent in this principle was naturally emphasized
by the growth of actions on the case, in which the damage flowing
from the act was the gist of the action. In an ordinary trespass,
in which a forcible act directly caused damage to the plaintiff's
person or property, the connection between the act and the damage
was generally obvious. But, when the damage was not the direct
result of the defendant's act, it was necessary to show that it was
its proximate consequence. To a modern lawyer it would seem
that the obvious method of ascertaining whether or not the damage
is the proximate consequence of the defendant's act, is to enquire
whether the defendant foresaw or ought to have foreseen such
damage as a necessary consequence of his act ; to rule that, if he
foresaw it or ought to have foreseen it, he was negligent ; and that
because he was thus negligent he is liable. But this way of look-
ing at the problem is essentially modern, and it has only become
possible as the result of a long historical development, the outlines
of which I must here try to trace.3
When the actions on the case first began to be developed, the
mediaeval notions as to the basis of civil liability were engrained
in the minds of the lawyers. If they had been asked why an act
directly causing damage to the plaintiff gave rise to liability en-
forceable in an action of trespass, they would have said that such
an act gave rise to liability because it was unlawful. The same
reasoning was applied to some of the earliest actions on the case.
An act which caused damage in certain specified ways was regarded
as giving rise to liability because it was an unlawful act. Thus
inn-keepers, common carriers, smiths, surgeons, taverners, vintners,
or butchers, could be made liable in an action on the case if, as the
result of want of care, skill, or honesty, the persons who had come
into business relations with them were damaged.4 We should say
1 Vol. iii 375-377- 2 Ibid 379-3&°-
3 The best historical account of the general development of the conception of
negligence is to be found in Street, Foundations of Legal Liability i chap, xiii ; the
historical matter in Holmes, Common Law Lecture III is mainly concerned with de-
velopment of the idea in the sphere of trespass, which is dealt with below 453-458 ; on
this latter point see also Wigmore, Responsibility for Tortious Acts, Essays A.A.L.H.
iii 505-507 ; Pollock, Torts (12th ed.) 142-147.
* Vol. iii 385-386.
VOL. VIII.— 29
450 CRIME AND TORT
at the present day that they were liable for fraud or negligence.
In the Middle Ages they were said to be liable "by the common
custom of the realm " — that is they were liable because their conduct
was regarded by the law as wrongful. Similarly, we have seen
that any person was liable in an action on the case if, having under-
taken to do something for another, he had done it so badly that
that other was damaged.1 We should say at the present day that
such liability was founded on a breach of contract. In the Middle
Ages it was considered to be a liability for conduct which, by
reason of the undertaking, was regarded by the law as wrongful.2
But, as damage was the gist of the action on the case, the court,
in coming to a conclusion whether or not a defendant could be
made liable in such an action, was bound to consider whether or
not the damage alleged could be said to be a sufficiently proximate
consequence of the defendant's act to entail liability; and this
question could only be answered by asking whether any ordinarily
prudent man would have foreseen that damage would probably
result from his act. Thus the courts were gradually familiarized
with the conception of negligence ; and, since the idea of negli-
gence was brought before them in this way, three consequences
followed. In the first place, they naturally, from the first, adopted
the objective standard of the ordinarily prudent man ; for they
were not trying to determine whether this or that defendant had
been negligent, but whether, having regard to what any ordinarily
prudent man would have foreseen, a particular damage, flowing
from a given defendant's acts, was a sufficiently proximate conse-
quence of those acts to entail liability. This principle was not
indeed formally laid down till 1837 ;3 but, as Sir F. Pollock says,
the idea " pervades the mass of our authorities " ; 4 and it pervades
them, because this manner of regarding negligence was necessitated
by the way in which the conception came into the common law.
In the second place, the courts necessarily regarded negligence as
being correlative to the existence of a duty not to harm the
plaintiff in the manner of which he was complaining ; 5 for, until
such a duty had been established, the mere fact that the defendant
had harmed the plaintiff could give rise to no cause of action ; and
therefore the enquiry whether the damage was the proximate con-
1 Vol. Hi 386, 429-431.
3 Note that Blackstone, Comm. iii 163-165, states the mediaeval rules, but classes
them under those " presumptive undertakings or assumpsits" arising from the " general
implication and intendment of the courts of judicature that every man hath engaged to
perform what his duty or justice requires " — at that date the idea of contract or quasi-
contract was in the ascendant ; and even at the present day, as Mr. Street points out,
op. cit. i 87, the subject of negligence is as important in the law of contract as in the
law of tort.
3Vaughan v. Menlove (1837) 3 Bing. N.C. 468.
* Torts (12th ed.) 444. 5 Ibid 439-440.
CIVIL LIABILITY 451
sequence of the defendant's act would be unnecessary. In the
third place, we get that distinguishing characteristic of the law of
tort, as compared with the law of contract, that "the primary
question of liability may itself depend ... on the nearness or re-
moteness of the harm complained of. Except where we have an
absolute duty and an act which manifestly violates it, no clear line
can be drawn between the rule of liability and the rule of com-
pensation."1 We shall see, however, that a clear line has been
drawn by the Court of Appeal between the principle upon which
liability to compensate is based, and the principle upon which the
amount of the compensation is assessed. The question whether
the damage was sufficiently probable for a reasonable man to have
anticipated is relevant in determining the question of negligence —
that is of liability to compensate : it is not relevant in determining
the measure of damages. -
There are many proofs that, during the sixteenth and seven-
teenth centuries, the constant need to inquire whether, in any given
case, the damage complained of by the plaintiff was a sufficiently
proximate consequence of the act of the defendant, was familiariz-
ing the courts with the idea that in a large number of cases liability
was grounded upon negligence. We have seen that, in the field
of crime, the line between murder and manslaughter was often fixed
by reference to the degree of negligence shown ; 3 and the rule that
a defendant was not liable for damage done by an ordinarily tame
animal, unless scienter was proved, involves the idea that liability
is founded upon negligence.4 But, in the sphere of tort, it seems
that the conception was at first applied where the duty owed by
the defendant to the plaintiff arose out of some contractual, quasi-
contractual, or proprietary relation. Thus, in 1601, Coke laid it
down that " where a man delivers a horse to another to keep safe,
the defendant equunt ilium tarn negligenter custodivit, quod ob de-
fectum bonce custodiae interiit, the action on the case lies for this
breach of trust; so if my shepherd, whom I trust with my sheep,
and by his negligence they be drowned, or otherwise perish, an
action upon the case lies." 5 Similarly, we have seen that it was
well settled that persons, like smiths or innkeepers, who were bound
by law to exercise their callings skilfully, were under a duty of a
delictual or quasi-contractual nature, if they caused damage by
their negligence.6 A like principle was applied in the sphere of
1 Pollock, Torts (12th ed.) 30.
2 Re Polemis [1921] 3 K.B. 560 ; below 462-464. 3 Above 436.
* This rule was well established by the decisions of the sixteenth and seventeenth
centuries, see Anon. (1537) Dyer 25b, 29a ; Mitten v. Faudiye (1625) Popbam 161 ;
Boulton v. Banks (1632) Cro. Car. 204 ; Kinnion v. Davies (1637) 'bid 4^7 1 Jenkins
v. Turner (1697) 1 Ld. Raym. 109.
5 The Countess of Shrewsbury's Case 5 Co. Rep. 14a.
* Vol. Hi 385-386, 448 ; above 89.
452 CRIME AND TORT
property law. In 1674 it was held that, where the defendants
were bound by prescription to maintain a fence, and by reason of
their negligence they failed to maintain it, so that the plaintiff's
mare got through the gap and was drowned, the plaintiff could
recover in an action on the case.1
We have seen, however, that the law made certain bailees,
to whom possession of goods had been entrusted, liable, even
though they had not been negligent. These rules were, as we
have seen, due mainly to the position which the law attributed to
possessors as such, and partly to the fact that they had become
fixed before the common law had attained the conception of
negligence.2 But it is clear from Southcotes Casez that the court,
in the light of the new conception that liability should be founded
on negligence, was beginning to think that they were hard rules.4
They were not extended to the newer varieties of bailees ; 5 and we
have seen that Coke advised that they should be evaded by making
special contracts as to the measure of liability.6 The manner in
which Holt, C.J., in the case of Coggs v. BemardyLput the law as
to bailees on its modern basis, and applied to their liabilities the
Roman rules as to negligence, which he had taken from Bracton,
is the best proof that, at the beginning of the eighteenth century,
the judges were coming to the conclusion that negligence should
generally be regarded as a basis of liability ; and that, in the ab-
sence of negligence, no liability should as a rule be imputed. In
fact, that decision gave effect to a tendency in this direction, which
had been felt in different ways throughout the sixteenth and seven-
teenth centuries.8 But even then two survivals of the older law
were still left — the innkeeper and the common carrier. The inn-
keeper is still absolutely liable, as he was liable in the Middle
Ages,9 by the common custom of the realm, for the safe custody
of the goods of his guests.10 The common carrier,11 common hoy-
man, or master of a ship, being persons "that exercise a public
employment," were bound to " answer for the goods at all events,"
except as against acts of God and the king's enemies.12 But the
1 Anon. 1 Vent. 264-265 ; Star v. Rookesby (171 1) 1 Salk. 335.
2 Vol. vii 450-451. 3 (1601) 4 Co. Rep. 83b.
4 Note that in Gelley v. Clerk (1607) Cro. Jac. 188 the innkeeper's liability as a
bailee of his guests' goods was limited to those who were actually staying in his inn as
guests.
5 " If a factor (although he has wages and salary) does all that which he by his
industry can do, he shall be discharged . . . but a ferryman, common innkeeper, or
carrier, who takes hire, ought to keep the goods in their custody safely, and shall not
be discharged, if they are stolen by thieves," 4 Co. Rep. at f. 84a.
8 Ibid ; above 259. 7 (1704) 2 Ld. Raym. 909 ; vol. vii 45^.
8 Above 452-453. 9 Vol. iii 385-386.
10 Cayle's Case (1584) 8 Co. Rep. 32a ; (1624) Hutton at p. 100 ; Robins and Co.
v. Gray [1895] 2 Q.B. at p. 504 per Lord Esher, M.R.
11 For the detailed history see Holmes, Common Law 197-205.
12 2 Ld. Raym. at pp. 917-918.
CIVIL LIABILITY 453
exemption of other bailees entrusted with the possession of goods
from this absolute liability, had destroyed the older reasons for the
rule ; l and its application to these persons, as an exceptional rule,
was based by Holt, C.J., on public policy.2 As applied to common
carriers, it was accepted by Lord Mansfield ; 3 and it is still part
of the law. But even in Holt's day it was clearly regarded as an
exceptional rule which required to be justified.
Since the law had reached this stage by the end of the seven-
teenth century, it is not surprising to find that a further step was
then taken. "The conception," as Mr. Street puts it,4 "of
common law liability for negligence was so extended as to make
one liable, in an action on the case, for damage flowing from the
negligent performance of his own projects and undertakings, un-
connected with the duty arising from statute, public calling,
bailment, or prescription." This extension was certainly made
in 1676 in the case of Mitchil v. Ales tree} In that case the
defendant had brought an unruly horse into Lincoln's Inn Fields
for the purpose of breaking him. The horse escaped from the
defendant, and damaged the plaintiff. The court held that the
plaintiff could recover. " It was the defendant's fault to bring a
wild horse into such a place, where mischief might probably be
done, by reason of the concourse of people. Lately, in this Court,
an action was brought against a butcher, who had made an ox
run from his stall and gored the plaintiff; and this was alleged in
the declaration to be in default of penning him." And Wylde, J.,
said, " if a man hath an unruly horse in his stable, and leaves open
the stable door, whereby the horse goes forth and does mischief;
an action lies against the master."
But, just as it was difficult to apply this new conception of
negligence to certain kinds of bailees, whose position had been
defined by older rules of law, so it was difficult to apply it in cases
where the act complained of was a direct act of violence. Such
an act was generally a trespass, and therefore an unlawful act ;
and if it was an unlawful act, there could be no question of the
defendant's liability. But such an act may be the result of a
perfectly lawful act done purely accidentally ; and we have seen
that, as late as the end of the sixteenth century, Bacon restated
the mediaeval rule that, even in such a case, the person doing the
1 Vol. vii 452-453.
* " This is a politic establishment, contrived by the policy of the law, for the safety
of all persons, the necessity of whose affairs oblige them to trust these sorts of persons,
that they may be safe in their ways of dealing ; for else these carriers might have an
opportunity of undoing all persons that had any dealings with them, by combining with
thieves etc., and yet doing it in such a clandestine manner, as would not be possible to
be discovered," 2 Ld. Raym. at p. 918.
3 Forward v. Pittard (1785) 1 T.R. 27.
* Foundations of Legal Liability i 189. s 1 Vent. 295.
454 CRIME AND TORT
act was liable.1 In fact, right down to the nineteenth century,
there is a chain of authority in which the mediaeval rule is stated
and relied on. Thus in 1617, in the case of Weaver v. Ward,2
the same distinction as that which Bacon drew between civil and
criminal liability was drawn, and it was said that "no man shall
be excused of a trespass . . . except it may be judged utterly
without his fault." In 1681, in the case of Lambert v. Besseyf
the rule that " in all civil acts the law doth not so much regard
the intent of the actor, as the loss and damage of the party
suffering," is repeated; and Brian's dictum that, "if a man assault
me, and I lift up my staff to defend myself, and in lifting it up hit
another, an action lies by that person, and yet I did a lawful
thing," was also repeated — a dictum again repeated and approved
by Blackstone, J., in Scott v. Shepherd} In 1682, in the case of
Dickenson v. Watson,5 in an action by the plaintiff against the
defendant for wounding him with his pistol, a plea that the
defendant was emptying his pistol in a vacant place, and that the
plaintiff had crossed the line of fire unknown to the plaintiff, was
held bad ; for in trespass the defendant shall not be excused with-
out an avoidable necessity, which is not shewn here." In 1700
the same view was urged in argument in the case of Mason v.
Keeling-/' and in 1724 it was apparently held that trespass lay
for a merely accidental hurt.7 In 1783 it was used in argument
by Erskine, as Bacon had used it, to illustrate the difference
between criminal and civil liability.8 In 1799 this thesis was
maintained in argument in the case of Ogle v. Barnes ; 9 and in
1803, m tne case of Leame v. Bray,10 it was restated by Grose, J.,
" Looking into all the cases from the Year Book in the 21 H. 7,
down to the latest decision on the subject, I find the principle to
be, that if the injury be done by the act of the party himself at the
time, or he be the immediate cause of it, though it happen
accidentally or by misfortune, yet he is answerable in trespass."
There was a ruling to the same effect in 1823 in the case of
Wakeman v. Robinson ;n and in 1868, in the case of Ry lands v.
Fletcher?* Lord Cranworth approved of the reasoning of Sir T.
Raymond in Lambert v. Bessey,13 which, as we have seen, restated
the mediaeval principle. In 1891, in the case of Stanley v.
Powell,1* the view that a man may be liable for a purely accidental
I Vol. iii 376-377. 2 Hob. 134. 3 Th. Raym. at pp. 422, 423.
4 (i773) 2 W. Bl. at p. 896. B T. Jones 205.
6 12 Mod. at pp. 332-333. "' Underwood v. Hewson 1 Str. 596.
8 The Dean of St. Asaph's Case 21 S.T. at p. 1022, cited Pollock, Torts (12th ed.)
142.
9 8 T.R. at p. 190. 10 3 East at p. 600.
II 1 Bing. at p. 214. 12 L.R. 3 H. of L. at p. 341.
Vi (1681) Th. Raym. 421. M [1891] 1 Q.B. 86.
CIVIL LIABILITY 455
trespass to the person was put forward in argument, and finally
overruled.
It would, however, be misleading to think that the lawyers, as
late as the nineteenth century, were prepared to hold that direct
damage, caused by an unavoidable accident in the doing of a
lawful act, would expose to liability. We shall see that some of
these dicta were qualified in a way which shows that the new
conception, that liability should be based on some moral short-
coming, was making its influence felt in the sphere of trespass.1
Others were contained in dissenting judgments,2 or only in
argument.3 Others were said in the course of discussions as to
whether trespass or case was the proper form of action — that is in
cases in which the mind of the court was not addressed to this
specific point4 Lord Cran worth's approval of the dictum in
Lambert v. Bessey was confined to cases of the type of Rylands v.
Fletcher, which, as we shall see, are governed substantially by the
mediaeval principle of liability.5 Nevertheless, as a matter of
historical fact, these dicta do, it seems to me, truly represent the
mediaeval view as to liability. But that mediaeval view was too
narrow ; and both the ethical ideas and the social needs of
modern times made it necessary that it should be modified.
The earliest way in which this modification was effected was
foreshadowed in the mediaeval period. It was, as we have seen,
admitted that ' the act of God ' or inevitable necessity would ex-
cuse.6 Much was made of this in the later cases ; and in some of
them the way was prepared for later developments, by statements
that, if the defendant could prove inevitable necessity, he was
not liable, because he was not negligent Thus, in the case of
Weaver v. Ward,1 the court said that the defendant might have
succeeded, if he "had said that the plaintiff ran across his piece
when it was discharging, or had set forth the case with the
circumstances, so as it had appeared to the court that it had been
inevitable, and that the defendant had committed no negligence
to give occasion to the hurt " ; and there is a long line of cases
in which it was held that unavoidable necessity was a good
defence. Thus in 1696, in the case of Gibbons v. Pepper,* it was
held that if the defendant had pleaded not guilty, and had given
in evidence facts which showed that the damage was the result of
an inevitable accident, "this matter might have acquitted him
1 E.g. Weaver v. Ward (1617) Hob. 134.
8 E.g. Lambert v. Bessey (1681) Th. Raym. 421 ; Scott v. Shepherd (1773) 2 W.
Bl. 892.
3 Above 454 nn. 6, 8, 9, 14. * E.g. Leame v. Bray (1803) 3 East 593.
5 L.R. 3 H. of L. at p. 341 — " this is the principle of law applicable to cases like
the present" ; I do not think that his dictum can be given, as Mr. Beven gives it,
Negligence i 557, any more general application.
s Vol. iii 380-382. 7 (1617) Hob. 134. 8 1 Ld. Raym. 38.
456 CRIME AND TORT
upon the evidence." In 1767, in the case of Eeckwith v. Skordike,1
the court clearly thought that an involuntary accident could not
expose to liability; and in 1823 Dallas, C.J., ruled2 that, "if the
accident happened entirely without default on the part of the
defendant or blame imputable to him, the action (trespass) does
not lie." There is a series of cases from the first half of the
nineteenth century, in which it was held that, in an action of
trespass, matters of excuse must be specially pleaded,8 which
obviously shows that such matters of excuse, if proved, would be a
good defence.
This expansion of the idea of an unavoidable or inevitable
necessity which, in effect made the act involuntary, was, I think,
the main line of reasoning along which the law was developed.
But it was not the only line. (i) In certain cases, in which a
defendant was sued for trespass committed by his animals, it was
held that, if he had done all he could to restrain them, he was
not guilty. Thus in 1625, in the case of Mitten v. Faudrye^ the
defendant had chased trespassing sheep belonging to the plaintiff
out of his land with a dog, and the dog had further pursued them
and damaged them. The plaintiff brought trespass ; and it was
held that, as the defendant had done his best to call in his dog,
he was not liable. Moreover, Dodderidge, J., laid it down in that
case that if a man was "driving cattle through a town, and one of
them goes into another man's house, and he follows him, trespass
does not lie for this, because it was involuntary." 5 We have seen
that in the fifteenth century liability for damage caused by cattle
so driven was only negatived, when the plaintiff's omission to fulfil a
legal duty to fence was the cause of the damage ; 6 and it would seem
that the law was the same in 179 5/ Probably, therefore, Dodderidge
stated the law too widely for his own day.8 His statement has,
however, come to be substantially correct.9 But it is now based,
as McCardie, J., has pointed out,10 on the much broader principle
stated by Lord Blackburn in River Wear Commissioners v-
Adamson,n that property adjoining a highway is liable to be in-
I 4 Burr, at pp. 2093-2094. 2 Wakeman v. Robinson 1 Bing. at p. 215.
3 Milman v. Dolwell (1820) 2 Camp. 378 ; Knapp v. Salsbury (1810) ibid 500 ;
Boss v. Litton (1832) 5 C. and P. 407; Cotterill v. Starkey (1837) 8 C. and P. at pp.
694-695.
4 Popham 161. 5 Ibid at p. 162.
6 Y.B. 10 Ed. IV. Pasch. pi. ig ; cited vol. iii 378.
7 Dovaston v. Payne 2 Hy. Bl. 527.
8Wigmore, op. cit. Essays A.A.L.H. iii 515.
9 Tillett v. Ward (1882) 10 Q.B.D. 17 ; see an illuminating discussion of the law
on this point by McCardie, J., in Gayler and Pope Ltd. v. Davies & Son Ltd. [1924]
2 K.B. at pp. 78-84.
10 [1924] 2 K.B. at pp. 82-83 ; Lord Blackburn had already expressed the same
view in Rylands v. Fletcher (1866) L.R. 1 Ex. at pp. 286-287.
II (1877) 2 A.C. at p. 767.
CIVIL LIABILITY 457
jured by the traffic on the highway, so that the owner must bear
his loss unless he can show that some third person is in fault —
which he will not do merely by proving that the third person is
the owner of the things which did the damage. Similarly the
scienter rule, as applied to dogs, is based on the idea that a man
is not liable for damage done by his dog unless he knew his dog
was fierce.1 (ii) In one of the latest cases on this subject —
Holmes v. Mather'1 — the rule that a man is liable only for the
proximate consequences of his acts was used to show that, if the
act of the defendant was a proper act, and the accident happened
not by reason of but in spite of it, he could not be held liable,
because the act which was the proximate cause of the damage
was not his act.3 This reasoning would, as we have seen, been
accepted as valid in the Middle Ages.4 But the way in which
this reasoning was used and applied was certainly not mediaeval,
and showed that the conception of negligence had made its
appearance even in the sphere of trespass.
The test suggested as to whether any given act was a trespass
or not, was whether, firstly, it was a direct act of violence, and,
secondly, whether it was wrongful " either as being wilful or as
being the result of negligence." 5 Let us consider what is involved
in this test. If the act which damages the plaintiff is unlawful,
there is of course nothing more to be said — it is obviously a tres-
pass.6 Difficulties begin when the act is not in itself unlawful.
In such a case I think the mediaeval common law would have
1 See the cases cited above 456 n. 3.
2 (1875) L.R. 10 Ex. 261 — an action for injury to the person occasioned by a run-
away horse.
3 " Here, as in almost all cases, you must look at the immediate act which did
the mischief, at what the driver was doing before the mischief happened, and not to
what he was doing next before what he was then doing. If you looked at the last act
but one, you might as well argue that if the driver had not started on that morning, or
had not turned down that particular street, this mischief would not have happened. I
think the proper answer is, you cannot complain of me unless I was immediately
doing the act which did the mischief to you. Now the driver was not doing that.
What I take to be the case is this : he did not guide the horses upon the plaintirT ; he
guided them away from her, in another direction ; but they ran away with him, upon
her, in spite of his effort to take them away from where she was," L.R. 10 Ex. at
p. 268 per Bramwell, B.
4 Vol. iii 380.
5 " If the act that does an injury is an act of direct force vi et armis, trespass is
the proper remedy (if there is any remedy) when the act is wrongful, either as being
wilful, or as being the result of negligence, "per Bramwell, B., L.R. 10 Ex. at pp. 26S-
269 ; Mr. Beven, Negligence, i 568, says that, " the doing a lawful act is not in itself
sufficient to save from liability, unless further it is done in circumstances that free the
doing of it from taint of blame . . . and an act cannot be without blame and in-
voluntary when there is free unfettered choice to act or refrain, independently of any
considerations outside the will of the person whose decisions determines the action " ;
historically I think this correctly represents the earlier law laid down in many cases
before Holmes v. Mather, but not the law as stated in that case.
6 Beven, Negligence, i 565, 566 ; above 449.
458 CRIME AND TORT
made the defendant liable, even though the act was purely ac-
cidental, if it was an act of violence committed by him which directly
damaged the plaintiff.1 As the result of the cases of the seven-
teenth eighteenth and nineteenth centuries, which we have just
been considering, the defendant escaped liability, if his act was
the result of such an unavoidable or inevitable necessity that his
act was in effect involuntary ; and mitigations also had been
allowed in certain cases of trespass committed by a defendant's
animals.2 It would seem that the definition of a trespass as an act
of violence either wilful or negligent, which was laid down in
Holmes v. Mather, in effect carried the mitigation of a defendant's
liability for trespass a stage further. A "wilful" act, I think,
means an act done intentionally. The word "wilful" obviously
excludes involuntary acts, and I think also lawful acts which are
voluntary, but which are done both without negligence, and with-
out intention of harming the plaintiff. This seems clearly to go
beyond the cases which we have just been considering, because it
does not demand that the act should have been the result of such
unavoidable necessity that it was in effect an involuntary act. In
Holmes v. Mather the act of attempting to curb the runaway
horses was a lawful voluntary act ; it was not done negligently ;
and there was no intention to harm the plaintiff. It was there-
fore held not to be a trespass to the plaintiff. The development
of the law having reached this point, the decision in the case
of Stanley v. Powell,3 that a lawful act, which damages another
accidentally, gives rise to no cause of action, was inevitable. In
that case the act of the sportsman in firing his gun was a lawful
act ; and the hitting of the beater which followed was clearly not
intended, and was found by the jury not to have been the result
of negligence.4 It did not therefore comply with the definition of
a trespass laid down in Holmes v. Mather.
Thus negligence came to be recognized as the basis of civil
liability in a large and miscellaneous class of wrongs to person
and property, which covers the largest part of the sphere of torts.
The introduction and extension of this conception through the
action on the case, has done for the law of tort somewhat the
same service as the product of another action on the case — the
doctrine of consideration — has done for the law of contract.5 Just
as it is through the doctrine of consideration that English law
arrived at its conception of a simple contract, so it is through the
1 Vol. iii 375-377- 2 Above 455-457- 3 [1891] 1 Q.B. 86.
4 Beven, Negligence i 568-570, naturally dissents from this decision, above 457 n. 5 ;
his view is that the act of the defendant was a voluntary act attended with possible
danger to others, that it was therefore not without blame, and consequently was a
trespass.
5 See Pollock, Torts (12th ed.) 21-22.
CIVIL LIABILITY 459
conception of negligence that it has been able to fix the standard
of carefulness which it requires one man to observe in his dealings
with another. Both conceptions have grown up under the shadow
of the law of actions ; and both, now that the old forms of actions
are things of the past, have emerged as substantive legal principles.
And just as the contract under seal remains in our modern law
as a survival of the days before the doctrine of consideration
was evolved,1 so in our law of tort there are survivals of ideas
based upon the mediaeval principle of civil liability. One illustra-
tion is, as we have seen, the liability of the common carrier.*-' A
second is the technical meaning of the defence miscalled con-
tributory negligence. Perhaps we may regard as a third the rule
as to the measure of damages for negligence recently laid down
by the court of Appeal in In re Polemis* Of the history of the
second and third of these three bodies of doctrine I must at this
point say something.
(i) Contributory negligence.
Something like a doctrine of contributory negligence was
recognized in Roman law ; 4 and in a system of law which
grounded liability upon negligence, it was a natural and a logical
doctrine. But we have seen that the conception of negligence
has only gradually and partially been accepted as a ground of
civil liability in the common law;5 and it was only at the
beginning of the nineteenth century, when this development was
complete, that we begin to hear of the phrase "contributor)7
negligence." On the other hand, the doctrine that, if the plaintiff's
act was the proximate cause of the damage, the plaintiff could
not recover, was well established mediaeval doctrine, and wholly
consonant with the mediaeval principles of civil liability.6 But,
when liability came to be based, not merely on an act which
caused damage, but on a wrongful act ; and when the largest
number of acts which were wrongful, were wrongful because they
were negligent ; it was inevitable that the mediaeval doctrine
should somewhat change its shape. As early as the beginning
of the seventeenth century there was a dictum to the effect that,
if a plaintiff suffered damage by reason of his own negligence, he
could not recover ; " and naturally, as liability came to be more
1 Vol. iii 419-420. 2 Above 452-453. 3 [1921] 3 K.B. 560.
4 " Quod quis ex culpa sua damnum sentit, non intellegitur damnum sentire,"
Dig. 50. 17. 203 ; cp. Dig. g. 2. 11. pr., cited Beven, Negligence (3rd ed.) i 149 n. 1.
5 Above 449-458. • Vol. iii 378-379.
7 Bayly v. Merrel (1606) Cro. Jac. 386 — a case in which an action on the case for
deceit was held not to lie, because the plaintiff could easily have found out the truth if
he had used ordinary care ; it was said at p. 387, " it was a matter which lay within
his own view and conusance ; and if he doubted of the weight thereof he might have
weighed it ; and was not bound to give credence to another's speech : and being his
own negligence he is without remedy."
460 CRIME AND TORT
and more generally grounded on negligence, this method of state-
ment gained ground. But, though a change was made in the
method of statement, the substance of the doctrine still retained
a great deal of the mediaeval principle ; and it is this mixture of
mediaeval and modern principles which has given this doctrine
its modern shape.
The change in the method of statement can be illustrated by
the form of the plea of a defendant in a running down case.1 It
runs as follows : — "that he, the defendant, just before and at the
said time when he was driving the said cart and horse, in the
said declaration mentioned ... in a careful moderate and proper
manner ; and that, whilst he, the defendant, was so driving the
same, to wit, at the said time when, etc., the said Sarah [the
plaintiff] negligently carelessly and improperly ran along and
across the middle of the said highway, near to and against the
said horse and cart of the said defendant, and was thereby then
cast and thrown to and upon the ground, and kicked, trampled
upon, and run over, and crushed, as in the said declaration
mentioned, without any default on the part of the defendant.
And so the defendant in fact saith that the said hurt and damage
in the said declaration mentioned were occasioned and happened
to the said Sarah by and through the mere negligent careless and
improper conduct of her the said Sarah, and not through the
fault or improper conduct of the defendant." It is clear that the
plea in substance appeals to the mediaeval principle that the
plaintiff, having in effect been damaged by her own act, and not
by the act of the defendant, could not recover. It was not really
a plea that the plaintiff was to blame for negligence which had
contributed to the accident ; but a plea that her negligent act was
the direct cause of the accident. But the fact that the doctrine
was thus stated in terms of negligence — that emphasis was laid on
the negligence rather than on the act — made a reconsideration of
the old doctrine necessary from this new point of view. The results
of that reconsideration were, in effect, to affirm the mediaeval
principle in the terms of the new phraseology — if my negligent
act is the direct or immediate or proximate cause of the damage,
I cannot recover ; and thus to produce that unfortunate divergence
between the real contents of the doctrine and its name, which,
more than any other single cause, has led to difficulties in its
application.
That the mediaeval principle was, in effect, affirmed in the
disguise of the new phraseology, is clear from the cases of the
nineteenth and twentieth centuries. In 1 809, in the well-known
1 Cotterill v. Starkey (1839) 8 C. and P. at p. 692 n. a.
CIVIL LIABILITY 461
case of Butterfield v. Forrester,1 the defendant had negligently put
an obstruction in a highway with which the plaintiff had collided;
but the plaintiff could not recover because, " if he had used ordinary
care, he must have seen the obstruction ; so that the accident
appeared to happen entirely from his own fault" In 1810
Lawrence, J., ruled that a plaintiff could not recover from a
negligent defendant, because " the immediate and proximate cause "
of the damage was his own unskilfulness as a driver.'2 In 1838
Parke, B. , said, " the rule is, that, although there may have been
negligence on the part of the plaintiff, yet, unless he might, by the
exercise of ordinary care, have avoided the consequences of the
defendant's negligence, he is entitled to recover : if by ordinary
care he might have avoided them, he is the author of his own
wrong." 3 In 1858, in the case of Tuff v. Warman, the Exchequer
Chamber laid it down that, " the proper question for the jury . . .
is whether the damage was occasioned entirely by the negligence
or improper conduct of the defendant, or whether the plaintiff
himself so far contributed to the misfortune by his own negligence
or the want of ordinary and common care and caution, that, but
for such negligence or want of ordinary care and caution on his
part, the misfortune would not have happened. In the first case
the plaintiff would be entitled to recover, in the latter not ; as, but
for his own fault, the misfortune would not have happened." 4 In
19 16 the manner in which the rule was laid down in Tuff v.
Warman, was expressly approved by Lord Sumner.5
It would seem to follow that the question of negligence is only
material in order to show that acts done by the plaintiff and
defendant are wrongful. The substance of the defence called
"contributory negligence " is not the fact that the plaintiff has
been negligent ; but that his negligent act is the direct cause of the
accident In other words, as in the Middle Ages, the defendant,
who succeeds on this plea, escapes because it was not his wrongful
act, but the wrongful act of the plaintiff, which was the direct cause
of the accident It follows that, as the plaintiff must in all cases
prove that it was the negligent act of the defendant which caused
the damage of which he is complaining, if his negligence had as
great a share in causing the damage as that of the defendant — if,
for instance, the negligent acts of the plaintiff and defendant were
contemporaneous, he cannot recover.6 In fact the decision in the
1 11 East 60 ; approved by Esher M.R. in The Bernina (1887) 12 P.D. at p. 70.
2 Flower v. Adam 2 Taunt. 314, at p. 317.
3 Bridge v. Grand Junction Railwav Co. 3 M. and W. at p. 248.
1 5 C.B. N.S. at p. 585.
3 British Columbia Electric Railway Co. v. Loach [1916] 1 A.C. at pp. 724-725.
6 The Bernina (1887) 12 P.D. at p. 89 per Lindley, L.J. It should be noted that,
though it is logically correct to say that such a case of contemporaneous negligence is a
462 CRIME AND TORT
case of British Columbia Electric Co. v. Loach} that the defendant's
previous and continuing negligence, which prevented him from
having the last chance of escape, was a sufficient answer to negli-
gence on the part of the plaintiff, which was in fact the direct cause
of the accident, is the first case in which a plaintiff, whose negligence
was in fact the direct cause of the accident, was allowed to recover.
So that, paradoxical though it may seem, it might be contended that
this was the first case in which a consideration of the comparative
negligences of the plaintiff and defendant was a real element in
the defence. As I said in an earlier volume,2 the doctrine in the
form in which it exists in our modern common law is anomalous.
It is anomalous, because it represents an attempt to piece together
two incompatible theories of civil liability — the mediaeval theory
that liability is based on an act which causes damage, and the
modern theory that liability is, as a general rule, based upon some
moral fault, either of the negligent or of the intentional variety.3
(ii) The measure of damages for negligence.
This is a very modern question ; and it was only definitely
settled (as far as the court of Appeal can settle it) in 1921 by the
case of In re PolemisA Down to the decision of this case it was a
very moot point whether the measure of damages for negligence
was to be determined by the same test as that which determined
the existence of negligence — the test, that is, of an enquiry whether
the damage caused was such that a reasonable person might have
anticipated it ; 5 or whether, where negligence had been proved,
the wrongdoer was liable for all the damage directly flowing from
his negligence, whether he could have anticipated it or not. The
case of contributory negligence, because the negligence of both parties contributed to the
accident, the defence of contributory negligence is only available to a defendant who can
prove that the plaintiff's negligence was subsequent to his own ; some confusion is
sometimes caused by neglecting to distinguish between cases where there has been
contributory negligence, and cases where the defence of contributory negligence is avail-
able— e.g. in Davies v. Mann (1842) 10 M. and W. 546 there was contributory negli-
gence, but the defence of contributorynegligence was not available, because the defendant's
negligence was subsequent to the plaintiff's, and the direct cause of the accident. In
other words, when we are speaking of the defence of contributory negligence, we are
not using the words " contributory negligence " in the ordinary sense, but in a very
technical sense.
1 [1916] 1 A.C. 719. 3 Vol. iii 378-379.
3 Lindley, L.J., in The Bernina (1887) 12 P.D. at p. 89, after dealing with the case
of contemporaneous negligence, above 461, and after stating that the rule in that case is
the logical result of the common law principles, says, " why in such a case the damages
should not be apportioned I do not profess to understand" ; it is submitted that the
historical evolution of the rule supplies the explanation ; it is in fact the direct and
logical consequence of the mediaeval principle.
4 [1921] 3 K.B. 560.
s The authorities in favour of this view are very well summarised in Mr. R. A.
Wright's unsuccessful argument for the appellants in In re Polemis [1921] 3 K.B. at
pp. 564-566 ; and in Sir F. Pollock's article in L.Q.R. xxxviii 165.
CIVIL LIABILITY 463
case of In re Poletnis decides, in accordance with the preponderance
of recent opinion,1 that the latter alternative is correct.
Upon purely logical grounds the justice of this conclusion is
perhaps open to question. If we are basing liability upon an act
which causes damage, without any reference to negligence, the rule
is logical enough. But if we are basing liability upon a negligent
act, and if negligence consists in a failure to foresee results which
ought reasonably to have been foreseen, it would seem that the
negligent person ought only to be made liable to the extent to
which he ought to have foreseen those results. In the law of
contract it is admitted that the agreement of the parties governs
the situation, so that only those damages can be recovered, ' ' which
may fairly and reasonably be considered either arising naturally,
i.e. according to the usual course of things, from such breach of
contract itself, or such as may reasonably be supposed to have been
in the contemplation of both parties, at the time they made the
contract, as the probable result of the breach of it." - If the basis
of the liability in contract — the agreement and its breach — is
allowed to affect the measure of damages for breach of contract, it
is a little difficult to see why the basis of the liability for negligence
— the failure to foresee acts which ought reasonably to have been
foreseen — is not allowed to affect the measure of liability for
negligent acts.
But, upon historical grounds, the conclusion arrived at in the
case of In re Poletnis is interesting for three reasons : firstly, be-
cause it shows the continuous bias of the courts in favour of making
a defendant liable for all the consequences of a wrongful act flowing
directly therefrom, without reference to his mental state.3 From
this point of view it is comparable to the manner in which the
courts have treated the defence of contributory negligence ; for, as
in that case, the go-by is given to any consideration of the respec-
tive seriousness of the negligence of the two parties, and the court
merely looks to see to whose act of negligence the damage is
directly attributable; 4 so in considering the measure of damages
for a negligent act, the court gives the go-by to the basis upon
which the liability is founded, by refusing to consider what damage
might reasonably be expected to result from the negligence, and
merely looks to see what damage has directly resulted. It seems
to me that, just as Lindley, L.J., doubted the justice of the rule
governing the defence of contributory negligence,5 so there is some
point in the doubt of Vaughan-Williams, L.J., as to the justice of
1 See Beven, Negligence (3rd ed.) i 105-108 ; Weld-BIundell v. Stephens [1920]
A.C. at pp. 983-984 per Lord Sumner.
2 Hadley v. Baxendale (1854) 9 Ex. at p. 354.
3 Vol. iii 375-377 ; above 449-450. 4 Above 461-462.
'Above 462 n. 3.
464 CRIME AND TORT
the rule governing the measure of damages for a negligent act.1
In both cases the logical consequences of taking negligence as a
basis of liability seem to be disregarded. Secondly, this rule is
historically interesting because it shows the continued adherence
to the very primitive principle laid down by Bacon2 and Hale,3
that, in adjudicating upon questions of civil liability, the law looks,
not at the extent of the demerits of the wrongdoer, but at the
damage of the party injured. This is, in fact, the ground upon
which the rule is based by Beven ; 4 and it is, it seems to me, the
only logical ground upon which it can be based. Thirdly, the
rule makes it very much easier to estimate the measure of damages ;
for it makes it unnecessary to separate the items of damage fairly
attributable to the defendant's negligence, from those not fairly
attributable. In thus laying down a rule which makes for sim-
plicity and the saving of labour, at the cost of neglecting other
considerations which might lead to a different solution, the judges
of this century have followed the example of their predecessors in
other periods of the history of the common law.5
It follows that both the manner in which courts have treated
the defence of contributory negligence, and the manner in which
they have treated the measure of damages for negligence, illus-
trate the imperfect way in which the conception of negligence
has, owing to its comparatively recent and gradual introduction
into the common law, been reconciled with earlier conceptions of
liability. In this, as in other branches of the common law at
different periods — in the mediaeval law, for instance, as to convey-
ancing,6 as to incorporeal things," and as to the corporation sole8
— the survival of earlier ideas has exercised a distorting effect
upon later legal developments. We shall now see that there are
certain other cases in which earlier principles of liability have in
substance survived, but for reasons very different from those upon
which they were originally based.
(2) The place of the mediaeval principle of liability in modern
law.
1 " It seems to me difficult to be satisfied with a rule which would make the
measure of damages, where the wrongful act is absolutely the same in two cases,
differ absolutely according to the loss which has been sustained by the person who is
injured by the collision — though the wrongful act of the wrongdoer is identical in both
cases. Still the rule seems now to be fully adopted," The Racine [1906] P. at p. 277.
2 Cited vol. iii 375. 3 Cited ibid 376.
4 " The test is not the mala mens of the actor, but the damnum et injuria to the
sufferer," Negligence i 108 ; as I have already pointed out, vol. ii 51-52, vol. iii
371-375, we can trace this principle back to the Anglo-Saxon period.
5 We can see parallels in the way the mediasval common law treated the husband's
right to curtesy, vol. iii 187 ; the married woman's proprietary capacity, ibid 524 ; and
the jury, vol. i 318.
8 Vol. iii 224. 7 Ibid 97-101. 8 Ibid 481-482.
CIVIL LIABILITY 465
In our modern law there are two main classes of cases in
which the mediaeval principle of liability is still applied. The
first is the case where one man has done an act which infringes
his neighbour's possession of, or right to possess, land or chattels.
The second is the class of cases which, in our modern law, fall
under the rule in Fletcher v. Ry lands}
(i) We have seen that, in certain cases, acts which infringe
another's possession of land or goods were and are justifiable. -
But, apart from these exceptions, any interference with possession
or the right to possess is an act which will entitle the injured
part)' to bring an action in tort. The fact that the act is done
accidentally, or in good faith, or under a justifiable error, is no
defence.3 At a time when civil liability for all wrongs, both to
person and property, was based on this principle, the severity of
the law would hardly seem to call for explanation. But we have
seen that, in the fifteenth century, some mitigation of this strict
liability was hinted at in the cases where the damage was inevit-
able or caused by " the act of God." 4 It is not surprising, there-
fore, that the tendency to mitigate these rules should have been
applied both to injuries to the person and to injuries to property.5
Thus we have seen that it was said in Edward IV.'s reign that, if
a drover was driving cattle along a highway, and by chance they
got a mouthful of corn, no action lay ; and that by custom the
same rule applied if, in ploughing, the plough turned upon
another's land.6 We have seen, too, that in Henry VI I. 's reign
Rede, J., had said that if two men's cattle were together in a
field, one might drive the other's cattle till he could get them into a
strait place where they could be severed ; " and in the same case
the same judge said that, where the executors of a deceased man
take the goods of another together with the goods of the testator,
they are not liable to be sued in trespass, because they had no
means of knowing which were the goods of the deceased, and
which were the goods of a stranger.8 In one or two later cases,
also, we see traces of the same tendency. We have seen that, in
the absence of a scienter, a man is not liable for damage done by
his dog,9 or, it would seem, for any of his other animals man-
suetae naturae ; lu and though, as we shall see, a man is absolutely
liable if cattle break out of his close and trespass on that of
1 (1866) L.R. 1 Ex. 265 ; (1868) L.R. 3 H. of L. 330.
* Vol. iii 377-378. 3 Ibid 382 ; below 466-467. * Vol. iii 380-382.
5 See Wigmore, Essays A.A.L.H. iii 508.
6 Y.B. 22 Ed. IV. Pasch. pi. 24, cited vol. iii 380-381.
' Y.B. 22 Hy. VII. Trin. pi. 5 (p. 28), cited vol. iii 381.
8 " On ne peut prima facie avoir parfait conusance que des biens sont al testator,
et que a l'estranger."
• Above 456, 457. w Manton v. Brocklebank [1923] 2 K.B. 212.
VOL. VIIL— 30
466 CRIME AND TORT
another,1 he is not absolutely liable for the trespasses of his cattle
while being driven along the highway.2 In the case of Beckwith
v. S/zordike3 the court seems to have thought that an involuntary
and accidental entry on the plaintiff's close was no trespass ; and
in the case of Davis v. Saunders^ damage done to the plaintiff's
ship without the negligence of the defendant, and while he was
doing a lawful act, was held to give no cause of action.
It is clear, therefore, that there was a tendency to apply to
liability for damage to property the same sort of mitigation as
was applied to damage to the person. But this tendency has not
been allowed to develop to anything like the same extent as in
the parallel case of damage to the person. It would not indeed
be true to say that it has had no effect whatever.5 It would seem
that in cases like Davis v. Saunders, where damage has been
caused by vis major in the doing of a lawful act, there is
no trespass and therefore no liability ; and the strict rule of
liability has certainly been modified, both in the case of dogs and
other animals manusuetae naturae and not known to be savage,
and in the case of damage accidentally caused by cattle while
being driven along the highway.6 Moreover, in Manton v.
Brocklebank Lord Justice Atkin said7 that "if Holmes v. Mather*
be correctly decided trespass to goods must be the result of an
act either wilful or negligent." This in effect asserts that
liability for trespass to the person and to property rest upon
the same principles. And no doubt there is a sense in which
this is true. If, in Stanley v. Powell? the shot, instead of hitting
the beater, had hit a plate belonging to the host which had just
been unpacked from a lunch basket, it is obvious that the plaintiff
could not have been made liable. On the other hand, it is quite
clear that for any asportation or conversion of a chattel, or for
any act which amounts to the breaking of the plaintiffs close,
a man is absolutely liable ; and that many of the modifications of
the strict rule, suggested in some of the earlier cases,10 are not
accepted as law at the present day. It is clear that if one turns
his plough, or accidentally enters upon another's land;11 or, it
would seem, if executors take the goods of another under the
I Below 470-471. 2 Above 456-457.
3 (1767) 4 Burr, at p. 2093 ; above 456.
4 (1770) 2 Chitty (K.B.) 639, cited Pollock, Torts (12th ed.) 146.
5 This seems to be the view of Wigmore, op. cit., Essays, A.A.L.H. iii 508.
e Above 456-457, 465. 7 [1923] 2 K.B. at p. 229.
8 (1875) L.R. 10 Ex. 261. 8[i8gi] 1 Q.B. 86.
10 Above 465.
II Basely v. Clarkson (1681) 3 Lev. 37 ; " by the laws of England every invasion
of private property, be it never so minute, is a trespass. No man can set his foot upon
my ground without my licence, but he is liable to an action, though the damage be
nothing," Entick v. Carrington (1765) 19 S.T. at p. 1066 per Lord Camden, C.J.
CIVIL LIABILITY 467
bona fide and justifiable belief that they belong to the deceased ; '
or if one converts another's goods, though he has no knowledge
or means of knowledge to displace his bona fide and justifiable
belief that they are his own2 — all can be made liable in an action
of trespass or conversion. How then can we explain this apparent
contradiction that, though in theory liability for trespass to the
person and to property rests upon the same principles, yet in
practice liability for trespass to property is more severe, and, in
many cases, does not differ very materially from the mediaeval
principle?
The explanation is, I think, this : even the smallest inter-
ference with possession or the right to possess is an unlawful act,
and, because it is an unlawful act,3 it gives rise to an action for
trespass or conversion. It is only if the act involves no asporta-
tion or conversion in the case of a chattel, or no breaking of the
plaintiff's close in the case of land, that it will only be tortious if it
is either wilful 4 or negligent ; and such cases must obviously be
rare, i f we go further, and ask why the law has always adhered
rigidly to the view that any such interference is an unlawful act,
we shall, as Sir F. Pollock has pointed out,5 find the reason in the
manner in which, owing to procedural conveniences, delictual
remedies came to be used for the protection of ownership and
possession. Ejectment,6 trespass quare clausum fregit, trespass de
bonis asportatis, and conversion," were all essentially delictual
remedies. But we have seen that they have come to be the
regular actions, in which not only torts to possession and owner-
ship can be redressed, but also rights to possession and ownership
can be asserted. Thus "the distinction between proceedings
taken on a disputed claim of right, and those taken for the redress
of injuries, where the right was assumed not to be in dispute,
became quite obliterated."8 And, it should be remembered that
the common law did not draw any hard and fast line between
possession and ownership. A possessor is treated as owner as
against all the world save as against the man with the better right. 9
But rights of ownership have come to be regarded as absolute rights
as against all the world.10 Therefore any infringement of these
rights must be accounted an unlawful act which will give rise
to an action for damages, whatever may be the cause for that
1 They might of course be entitled to an indemnity as against the estate if they
had acted honestly and reasonably, see Re Raybould [1900] 1 Ch. 199.
2 Hollins v. Fowler (1874) L.R. 7 H. of L. 757. s Above 449.
* See above 458 for the sense in which this term is used.
5 Torts (12th ed.) 11-14. 8 Vol. vii 7, 57.
7 Vol. vii 402-440. 8 Pollock, Torts (12th ed.) 13.
9 Vol. iii 91-95, 352353 I vol. vii 59-60, 449.
10 Vol. vii 62-68, 426-430.
468 CRIME AND TORT
infringement, and whether or not the person who has infringed
them is morally blameworthy.1 As he is thus in effect absolutely
liable for any act which has the result of infringing these rights,
his liability is in all essentials governed by the same principles as
governed all liability for tort in the mediaeval common law.'*'
(ii) The principle of the class of cases which fall under the
rule in Fletcher v. Rylands 3 is thus stated by Sir F. Pollock : 4
"The law takes notice that certain things are a source of extra-
ordinary risk, and a man who exposes his neighbour to such
risk is held answerable to his neighbours as an insurer against
consequent mischief." In effect his liability is essentially the
same as that imposed by the mediaeval common law ; for, though
absence of negligence will not excuse him, vis major,5 or the fact
that the damage is caused, not by his own act, but by the act of
the plaintiff or of a third person with whom he is in no way
connected,0 is a good defence. His acts are at his peril ; but for
damage which results, not from his act, but from the act of God
or of the plaintiff or of a third person, he is not liable.7
The decision in this case is the starting point of the modern
law as to the liability of one who engages on a dangerous under-
taking, because it stated broadly and clearly the nature of the
liability imposed, and the cases to which it applies. It is clear
that the rule could not have been laid down in this way in the
mediaeval common law, because the principle of civil liability set
out in that case was applied, not merely to dangerous acts which
caused damage, but to all acts, if they came within some one of
the forms of action recognized by the law — a truth which was, as
we have seen, recognized by Lord Cranworth in his judgment in
Fletcher v. Rylands} This rule could only emerge as a distinct
and exceptional rule when the mediaeval principle of civil liability
had ceased to be the general rule. It follows, therefore, that, till
well on in the nineteenth century, the time was hardly ripe for its
enunciation. But though, as expressed in Fletcher v. Rylands, it
is a modern rule, it has at least two ancient roots. In the first
place, it gives effect to the idea, expressed in different ways at
different periods, that the doing of dangerous things should give
1 Pollock, Torts (12th ed.) 11-12. 3 Vol. iii 375-377.
;i (1866) L.R. 1 Ex. 265 ; (1868) L.R. 3 H. of L. 330.
4 Torts (12th ed.) 490.
5 Nichols v. Marsland (1875-1876) L.R. 10 Ex. 255 ; 2 Ex. Div. 1.
8 Box v. Jubb (1879) 4 Ex. Div. 76 ; he would of course be liable for the act of
his servant, acting within the scope of his employment, under the modern doctrine of
employers' liability, and also for the acts of an independent contractor, see L.Q.R. xxv
320.
7 For the similarity of these rules to the general rules as to civil liability in the
Middle Ages see vol. iii 378, 380.
8 (1868) L.R. 3 H. of L. at p. 341 ; above 454, 455.
CIVIL LIABILITY 469
rise to a stricter liability. In the second place, it is influenced by
the survival of the mediaeval rules as to damage to property
which I have just described.1
(a) The principle that the doing of obviously dangerous acts
should impose a stricter liability was recognized in the Middle
Ages. One of these cases was the liability imposed on house-
holders to keep their fires from causing damage. The form which
this stricter liability took was not the form taken by the rule in
Ry lands v. Fletcher, for that rule was then the general rule of
civil liability. It took the form of a rule that a householder
was liable for damage caused by his fire, even though that
damage was occasioned not by his own act, but by the act of his
servants or guests.*2 This strict rule of liability for damage caused
by fire was recognized in 1698 in the case of Tuberville v. Stamp ; 3
but it was altered by the Legislature in 1707;4 and liability for
the acts of one's servants, whether in the course of doing a
dangerous act or not, is now governed by the modern principle of
employers' liability.5 But this mediaeval rule is clearly one
illustration of the recognition of the first of the ideas on which
the rule in Rvlands v. Fletclier is based.
Another illustration is to be found in the development of the
law as to the keeping of animals. We have seen that liability for
the damage caused by ordinarily tame animals was modified by
the growth of the scienter rule ; 6 but, as Hale points out, the old
strict liability remained if scienter could be proved, or if the
animal was naturally wild." In 1700, in the case of Mason v.
Keeling, Holt, C.J., stated the law in the same way as Hale had
stated it He said, "if it had been said that the defendant knew
the dog to be ferox, I should think it enough. The difference is
between things in which the party has a valuable property, for he
shall answer for all damages done by them ; but of things in which
he has no valuable property, if they are such as are naturally
1 Above 467-468.
3 Vol. iii 385 ; Wigmore, op. tit., Essays A.A.L.H. iii 511-512.
a 1 Salk. 13 ; the allegation of negligence, which there appears, was clearly un-
necessary, see Wigmore, loc. cit., and the statutes cited in the next note ; as we have
seen, we should not attach much weight to the adverbs used in writs or declarations,
vol. iii 452 n. 9 ; it was because Blackstone paid too much attention to them that he
erroneously stated, Comm. iii 211, that the liability for cattle trespass, below 470-471,
and for damage done by fire, ibid i 419, was for negligently keeping one's cattle or
fire; cp. Lord Lyndhurst's criticism in Viscount Canterbury v. the Queen (1842)
4 S.T.N .S. at pp. 774-775-
*6 Anne c. 31 § 6, made perpetual by 10 Anne c. 14 § 1.
5 Below 472 seqq.
s Above 456-457.
7 " In case of such a wild beast, or in case of a bull or cow, that doth
damage, when the owner knows of it, he must at his peril keep him up safe from doing
hurt, for tho' he uses his diligence to keep him up, if he escape and do harm, the owner
is liable to answer damages,'' P.C. i 430.
470 CRIME AND TORT
mischievous in their kind, he shall answer for the hurt done by them
without any notice ; but if they are of a tame nature there must be
notice of the ill quality." x Holt, C. J., thus lays down the modern
rule as to liability for the acts of dangerous animals clearly enough ;
but the distinction which he drew, based on the question whether
or not the defendant had a valuable property in the animal, calls
for an explanation. It was said as late as 1676 that, if a savage
animal escaped, the former owner ceased to be liable for any
damage afterwards done by the animal.2 This was based on the
view that such an animal by its escape became a res nullius, so
that his former owner, because he had ceased to be the owner,
ceased to be liable for its acts.3 This rule has ceased to be law
in the form in which it was stated in 1676,4 though possibly it
still influences the law as to the trespass of such animals on to
another's land.5 Holt probably had this rule in his mind ;6 but
what he was chiefly thinking of was the very much stricter liability
which the law then imposed, and still imposes, on a person whose
cattle trespass on another's property. It is true that his statement
of the law was not accurate ; 7 for, as we have seen, it was not true
that the owner of cattle was bound to answer for all damage
done by them.8 But he was and is absolutely liable if they escape
from his land, and trespass on to another's land. This liability is
another root of the rule in Ry lands v. Fletcher : but its considera-
tion falls more properly under the following head.
(b) The absolute liability of the owner of cattle if they escape
from his land, and trespass on to the land of his neighbour, has
ancient roots. It may have originated in the primitive idea that
animals which had done damage were in some way guilty, and
that the owner must be made liable as a means "of getting at
the animal which was the immediate cause of offence." 9 But,
certainly by the fifteenth century, these primitive ideas had dis-
appeared. The rule that the owner of trespassing cattle was
liable had become a fixed rule of law, as to the reasonableness of
which the author of the Doctor and Student had doubts ; 10 but
there can be no doubt that it could be and was explained on
1 12 Mod. at p. 335. 2 Mitchil v. Alestree 1 Vent. 395 per Twisden, J.
3 Vol. vii 492, 493 ; see Holmes, Common Law 22, for the view that this dictum
was influenced, perhaps unconsciously, by the notion that the ground of liability was
noxal, i.e. based on the ownership of a guilty thing.
4 May v. Burdett (1846) 9 Q.B. at p. 113.
'Thus in Cox v. Burbidge (1863) 13 C.B. N.S. at p. 438 Williams, J., says, "if
I am the owner of an animal in which by law the right of property can exist, I am
bound to take care that it does not stray into the land of my neighbour."
6 Ibid at p. 440 per Willes, J.
7 Ibid at pp. 440-441 per Willes, J. ; as he says, Holt's dictum " exhausts itself on
the liability of the owners of horses and oxen for trespasses committed by them on
land."
8 Above 456, 465-466. 9 Holmes, Common Law 10.
10 Bk. 1 c. 9, cited Wigmore, op. cit., Essays A.A.L.H. iii 514 n. 4.
CIVIL LIABILITY 471
somewhat the same grounds as the rule which made anyone liable
who infringed another's possession or right to possession.1 As we
have seen, the right to a free enjoyment of possession is as much
an incident of ownership as the right to its undisturbed possession.
In the sphere of the real actions the former right was protected
by the assize of nuisance, as the latter right was protected by
the assize of novel disseisin.2 Liability for trespass by cattle
was put on this proprietary ground in 1480 ;3 and clearly, if this
liability is regarded in this way, it is in effect a liability for
nuisance. The nature of this liability was, as we have seen,
generalized and elucidated by the action on the case for nuisance.4
Thus, in 161 1, it was stated specifically in A/dred's Case that
liability for nuisance depended on the principle " sic utere tuo ut
alienum non laedas ";5 and in 1 705, in the case of Tenant v. Goldwin,
the rule as to liability for cattle trespasses was based upon the
same principle. "Every man," said Holt, C.J.,* "must so use
his own as not to do damage to another. And as every man is
bound so to look to his cattle, as to keep them out of his neigh-
bour's ground, that so he may receive no damage ; so he must
keep in the filth of his house of office, that it may not flow in upon
and damnify his neighbour." Clearly, if this liability is put upon
this proprietary ground, it must be as absolute as the liability for
the disturbance of possession. This, it would seem, is the true
reason for this liability, and not " the archaic one that trespass
by a man's cattle is equivalent to trespass by himself." "
Both these two lines of precedents, and especially the second,
influenced the decision in Fletcher v. Rylands. The following
passage, from the judgment of Blackburn, J., which was quoted with
approval by Lord Cairns, proves both this fact, and the fact that the
nature of the liability is essentially a survival of the general prin-
ciple of liability recognized by the mediaeval common law : 8 " We
think that the true rule of law is, that the person who for his own
purposes brings on his land and collects and keeps there anything
likely to do mischief if it escapes, must keep it at his peril, and, if
he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape. He can excuse
1 " Quant il mit eins ces beasts en son commen, luy covient occupier son commen
issint que il ne fait tort a auter home, et si le terre en quel il doit cest commen avoir,
ne soit enclose, come est icy, donques covient de garder les beasts en le commen et
hors de chescun estranger," Y.B. 20 Ed. IV. Mich. pi. 10 per Brian, C.J.
2 Vol. iii 11. 'Above n. 1. * Vol. vii 329-330, 340-341.
5 9 Co. Rep. at f. 5ga. 8 2 Ld. Raym. at p. 1092.
7 Pollock, Torts (12th ed.) 504, says, " observe that the only reason given in the
earlier books (as indeed it still prevails in quite recent cases) is the archaic one that
trespass by a man's cattle is equivalent to trespass by himself" ; cp. Bl. Comm. iii
211 ; but the cases cited would seem to show that some of the judges at any rate had
a clear view of the true reason for this liability.
8 (1866) L.R. 1 Ex. at pp. 279-280 ; (1868) 3 H. of L. at pp. 339-340.
472 CRIME AND TORT
himself by showing that the escape was owing to the plaintiffs
default ; or perhaps that the escape was the consequence of vis
major or the act of God. . . . The general rule as above stated
seems on principle just. The person whose grass or corn is
eaten down by the escaping cattle of his neighbour, or whose
mine is flooded by the water from his neighbour's reservoir, or
whose cellar is invaded by the filth of his neighbour's privy, or
whose habitation is made unhealthy by the fumes and noisome
vapours of his neighbour's alkali works, is damnified without any
fault of his own ; and it seems but reasonable and just that the
neighbour, who has brought something on his own property which
was not naturally there, harmless to others so long as it is confined
to his own property, but which he knows to be mischievous if it
gets on his neighbour's, should be obliged to make good the
damage which ensues if he does not succeed in confining it to his
own property." And then he went on to point out that the law
was the same in the case of a person who kept a mischievous
animal — he must keep it at his peril.1 It is clear, therefore, that
whether we look at the nature of the liability thus imposed, or at
the character of the defences permitted,2 the underlying principle
is the same as that which governed civil liability is general in the
mediaeval common law.3
In these two classes of cases, therefore — the case where a man
has interfered with his neighbour's possession of or right to possess
land or chattels, and cases coming under the rule in Rylands v.
Fletcher — the mediaeval principle of civil liability still holds — but
for reasons very different from those on which it rested in the
Middle Ages. These cases, therefore, are two of the strongest
illustrations of Holmes' aphorism that, "when ancient rules maintain
themselves . . . new reasons more fitted to the time have been
found for them, and they gradually receive a new content, and at
last a new form from the grounds to which they have been trans-
planted."4
We must now turn from these cases, in which the older
principles have survived in another form, to the case where a
wholly or almost wholly new principle of liability has been in-
troduced into the common law.
(3) The doctrine of Employers' Liability.5
Of the principles applied by the mediaeval common law to the
1 L.K. 1 Ex. at p. 281. 2 See as to this L.Q.R. xxv 321.
3 Vol. iii 375377. 378, 380.
4 The Common Law 36 ; for another instance of its application in another branch
of the law see vol. iii 177.
8 Much the best account of the history of the law on this topic will be found in
Wigmore, op. cit., Essays A.A.L.H. iii 520-537.
CIVIL LIABILITY 473
master's or employer's liability for the acts of his servant I have
spoken in an earlier volume ; ! and we have seen that these
principles were applied throughout this period.2 It is true that in
1676, in the case of Mitchil v. Alestree, the court was, on the
facts, prepared to presume the existence of a special authority to
do the act — bringing unruly horses into Lincoln's Inn Fields —
which had caused the damage to the plaintiff3 But it is clear
from the case of Kingston v. Booth* in 1685 that, without such
special authority, the master could not be made liable for his
servant's torts. In that case Withins, Holloway, and Walcot, JJ.,
resolved, firstly, that, " if I command my servant to do what is
lawful, and he misbehave himself or do more, I shall not answer
for my servant, but my servant for himself, for that it was his own
act ; otherwise it was in the power of every servant to subject his
master to what actions or penalties he pleased " ; and, secondly,
" if I command my servants to do a lawful act . . . and bid them
take care they hurt not the^plaintiff; if in this doing my servants
wound the plaintiff, in trespass of assault and wounding brought
against me, I may plead not guilty, and give this in evidence, for
that I was not guilty of the wounding." It is clear, therefore, that,
right down to the Revolution, the law on this subject was sub-
stantially the same as it was in the Middle Ages.
But we have seen that the seventeenth century had been a
century of expansion and change in all branches of commerce and
industry. Even in the Middle Ages the law merchant favoured a
more extended liability than that recognized by the common law ; 5
and we have seen that, in the earl)- days of the seventeenth
century, the civil law rules applied by the court of Admiralty
exhibited the same characteristic.6 But, as the result of the Great
Rebellion, the common law had absorbed the greater part of the
commercial jurisdiction formerly exercised by the court of Ad-
miralty.7 Both the changed commercial and industrial conditions,
and the enlarged commercial jurisdiction of the common law courts,
were making it clear that a reconsideration of the mediaeval rules
which governed this branch of the law was necessary. But the
judges of the courts of common law who disgraced the bench in
the latter years of Charles II. 's and in James II. 's reigns,8 were not
competent to tackle what was in effect a complicated problem of
law and public policy. It was not till after the Revolution, when
the quality of the bench had been restored, that any effort was
made to deal with it ; and fortunately for the common law it found
1 Vol. iii 382-387. - Above 227-228, 250.
3 "It shall be intended the master sent the servant to train the horses there,"
2 Lev. at p. 173 sub. nom. Michael v. Alestree.
* Skinner 228. s Vol. iii 387. 6 Above 250-253.
7 Vol. i 556-558, 570-572 ; vol, v 140-148, 153-154. 8 Vol. vi 503-511.
474 CRIME AND TORT
in Holt, C.J., a lawyer who, by reason both of his technical equip-
ment and his knowledge of the commercial needs and conditions
of the day, was eminently qualified to do for this branch of the
law what he had done for many other branches of commercial
law.1
The reports show that it was his decisions that laid the founda-
tions of the modern law. In 1691, in the case of Boson v. Sand-
ford,2 an action on the case was brought by a shipper of goods
against the owners of the ship, for damage caused to the goods by
the negligence of the master. Eyre, J., gave judgment for the
plaintiff on the narrow ground that the owners of the ship were in
effect carriers,3 and were therefore liable by reason of the special
liability for the acts of their servants imposed on carriers ; 4 and it
would seem that some reliance was placed on the mediaeval rules
which made sheriffs and other agents of the crown liable for the
misdeeds of their underlings.5 But Holt rested his judgment on
the broad principle that "whoever employs another is answerable
for him, and undertakes for his care to all that make use of him." 6
In 1698, in the case of Tuberville v. Stamp,1 the plaintiff com-
plained that, being possessed of a close of heath adjoining that of
the defendant, the defendant's servant lit a fire on the defendant's
close which consumed the heath on his close. It was held that he
had a good cause of action. Here again it was possible to ground
the decision on the mediaeval rules as to liability for fire ; 8 and
apparently the majority of the judges rested their decision on this
ground.9 But Holt doubted whether the mediaeval rule applied to
any fires but those in houses;10 and he put the liability upon the
broader ground that, "if my servant doth anything prejudicial to
another, it shall bind me, when it may be presumed that he acts
by my authority, being about my business." u Similarly in 1699
he ruled at nisi prius that, if A's servants driving A's cart collide
with B's cart and cause damage, A is liable ; n and we have seen
that in 1701, in the case of Lane v. Cotton™ he came to the mis-
1 For an account of Holt see vol. vi 264-268, 270-272, 516-522.
2 2 Salk. 440 ; S.C. 3 Mod. 321.
3 " Eyre Justice held there was no difference between a land carrier and a water
carrier, and that the master of a ship was no more than a servant to the owners in the
eye of the law," 2 Salk. 440.
4 Vol. iii 386. 5 3 Mod. at pp. 323-324 ; for these rules see vol. iii 387.
6 2 Salk. 440. 7 Skinner 681 ; S.C. Comb. 459, 1 Ld. Raym. 264.
8 Vol. iii 385. 9 1 Ld. Raym. 264.
10 According to the report in Comb. 459 ; but according to the report in 1 Ld. Raym.
264 he agreed with the other judges on this point.
11 Comb. 459 ; in 1 Ld. Raym. at pp. 264-265 Holt's ruling is thus stated, " if the
defendant's servant kindled the fire in the way of husbandry and proper for his employ-
ment, though he had no express command of his master, yet his master shall be liable
to an action for damage done to another by the fire ; for it shall be intended that the
servant had authority from his master, it being for his master's benefit."
12 2 Salk. 441. w 1 Salk. 17.
CIVIL LIABILITY 475
taken conclusion that the postmaster-general was liable for the
loss of a letter occasioned by the negligence of an official in the
post office,1 on the authority of the mediaeval rules which made
sheriffs bailiffs and others liable for the misdeeds of their deputies.2
In 1709, in the case of Hern v. ATichols,3 he held that a merchant
was liable for the fraud of his factor — "for seeing somebody must
be a loser by this deceit, it is more reason that he that employs
and puts a trust and confidence in the deceiver should be a loser
than a stranger."4 From the first, however, this liability was
limited to the case where the servant was about his master's
business. In 1698 it was held at nisi prius that "where a servant
usually buys for his master upon "tick," and takes up things in
his master's name, but for his own use, that the master is liable,
but it is not so where the master usually gave him ready money " ; 5
and in 1 699, in the case of Middleton v. Fowler* Holt explained
the principle to be that " no master is chargeable with the acts of
his servant, but when he acts in execution of the authority given
by his master, and then the act of the servant is the act of the
master." The same principle was again enforced in 1704 in the
case of Ward v. Evans? At the same time other cases laid it
down, in conformity with the mediaeval principle,8 that if the
master had profited by the act or contract of his servant the master
was liable.3
It is clear from these cases that the origins of this new prin-
ciple were very mixed. But I think it probable that two main
streams of doctrine contributed to it — firstly a Roman influence
which filtered through the court of Admiralty and mercantile
custom, and secondly an English influence derived from the
mediaeval modifications of the general common law principle
governing the master's liability.
(i) We have seen that doctrines, ultimately derived from the
Roman learning as to quasi-delict, were applied in the court of
Admiralty to settle the liability of the master and owner of a ship
to the shipper and passengers for the delicts of the crew, and the
1 Vol. vi 267-268. 2 Vol. iii 387. 3 1 Salk. 289.
4 He gave a similar explanation of the rule in Sir Robert Wayland's Case, 3 Salk.
234 — " the master is chargeable, for the master at his peril ought to take care what
servant he employs ; and it is more reasonable that he should suffer for the cheats of
his servant than strangers."
5 Boulton v. Arlsden 3 Salk. 234 ; so it was said, ibid at p. 235, that, " a note under
the hand of an apprentice shall bind his master, where he is allowed to deliver out
notes, though the money is never applied to the master's use. But where he is not
allowed or accustomed to deliver out notes, then his note shall not bind the master,
unless the money is appbed to the master's use."
* 1 Salk. 2S2. " Ibid 442. 8 Vol. iii 528.
9 " Where the master gives the servant money to buy goods for him, and he con-
verts the money to his own use, and buys goods upon ' tick,' yet the master is liable,
so as the goods come to his own use, otherwise not," Boulton v. Arlsden (169S)
3 Salk. 324.
476 CRIME AND TORT
liability of the owner to the same persons for the delicts of the
master.1 It is certainly significant that the case of Boson v. Sand-
ford2 — the earliest case in which the doctrine appears in a common
law court — was an action by a shipper against the owner for damage
suffered by the master's negligence. Moreover it is not unlikely
that, as the necessities arising from a larger commerce were felt
in the court of Admiralty at an earlier date than in the courts of
common law, the court of Admiralty should introduce ideas which
helped to establish the new principle which was demanded by
those necessities. But it is clear that this was only one of the
influences which went to the making of the modern principle. If
it had been the only influence, probably the doctrine would have
taken the form which the author of a recent work on this subject
would like to have seen it take. It would have made an em-
ployer liable for his servants' torts only to those who were in
some sort of contractual relation with the employer.3 But the
cases of this period show that it was not so limited by Holt. Here
again it is just possible that the Roman rules as to the actions de
effusis aut dejectis had some slight influence ; 4 but I think that it
is clear that the influences which made for this more extended rule
came mainly from the mediaeval common law.
(ii) The rule which made householders liable for damage by
fire caused by their servants, appears in Tuberville v. Stamp ; 5 and
the rule as to common carriers in Boson v. Sandford.6 The rule
that a man might be liable if he had undertaken to do something,
and, through his servant, had done it badly,7 appears in Wayland's
Case ; 8 and the rule that a master might be liable if property
acquired by his servant came to his use appears in Boulton v.
Arlesdn.® Moreover the influence of this rule was long felt in the
idea, which appears in Tuberville v. Stamp, that the fact that the
act was for his master's benefit was a reason for holding the master
liable10 — an idea the effects of which were not wholly eliminated
till 191 2. u The mediaeval rule as to the liability of sheriffs and
I Above 250-253. 2 (1691) 2 Salk. 440.
3 This is the main argument of Dr. Baty's ingenious book on Vicarious Liability.
4 In Noy's Maxims c. 44 it is said that " we shall be charged if any of our family
lay or cast anything into the highway to the nuisance of his Majesty's liege people " ;
and Holt, C.J., in Tuberville v. Stamp (1698) 1 Ld. Raym. at p. 264 ruled that " if
my servant throws dirt into the highway I am indictable " ; this rule is stated by
Blackstone, Comm. i 419, like Noy stated it, as a rule which made a master liable
for the acts of his family; Blackstone compares it to the Roman rule set out in
Institutes 4. 5. 1 ; and it is just possible that that may be its origin ; on the other
hand it may be a solitary survival of the liability of the householder for his
" mainpast," vol. iii 383.
5 (1698) 1 Ld. Raym. 264 ; above 474.
8 (1691) 2 Salk. 440 ; above 474. 7 Vol. iii 386-387.
8" If a smith's man pricks my horse, the master is liable," 3 Salk. 234.
9 Ibid ; above 475 n. 9. 10 Above 474 n. n.
II Lloyd v. Grace Smith and Co. ^1912] A.C. 716,
CIVIL LIABILITY 477
bailiffs and other officers of the crown for the misdeeds of their
underlings, appears in the case of Boson v. SandforJ \x and we
have seen that it was the basis on which Holt rested his dissenting
judgment in the case of Lane v. Cotton?
Both these streams of doctrine thus joined to create the modern
doctrine of employers' liability ; and, as the technical reasons as-
signed for the decisions which established it were very various, it
followed that the basis on which it rested was not at first clearly
perceived. It was sometimes put on the ground that the master
by implication undertakes to answer for his servant's tort — which
is clearly not true. Sometimes it was put on the ground that the
servant had an implied authority so to act — which again is clearly
not true. Sometimes it was grounded on the fiction that the wrong
of the servant is the wrong of the master/ from which the con-
clusion was drawn that the master must be liable " because no
man shall be allowed to make any advantage of his own wrong" ;4
and sometimes on the ground that the master who chooses a care-
less servant is liable for making a careless choice.5 Blackstone
gives all these reasons for this principle. In addition, he deals
with the totally different case where a master has actually author-
ized the commission of a tort ; and cites most of the mediaeval
cases of vicarious liability with the special reasons for each of
them.0 It is not surprising that he should take refuge in the
maxim "qui facit per alium facit per se," " or that others should
have used in a similar way the maxim "respondeat superior." s
His treatment of the matter illustrates the confusion of the
authorities ; and it is noteworthy that he does not allude to the
true reason for the rule — the reason of public policy — which Holt,
C.J., gave in Hern v. Nichols and in WaylancCs Case.9
That this was the true reason for the rule was only gradually
perceived. As Professor Wigmore has pointed out, the judges at
first relied mainly on the theory of implied command,10 sometimes
classing the liability as quasi-contractual ; u and, considering the
J3 Mod. at pp. 323-324 ; above 474. 2 Vol. vi 267.
" Viscount Canterbury v. the Queen (1842) 4 S.T. N.S. at p. 77S per Lord Lynd-
hurst ; Tobin v. the Queen (1864) 16 C.B. N.S. at p. 350.
4 Wigmore, op. cit. Essays, A.A.L.H. iii 531-532.
'Viscount Canterbury v. the Queen (1842) 4 S.T. N.S. at p. 778.
6 Comm. i 417-420.
7 " As for those things which a servant may do on behalf of his master, they all
seem to proceed upon this principle, that the master is answerable for the act of his
servant, if done by his command, either expressly given or implied : nam qui facit per
alium facit per se," ibid 417.
8 See e.g. Bartonshill Coal Co. v. Reid (1858) 3 Macqueen at p. 283, where both
these Latin tags are introduced by Lord Cranworth ; as Professor Wigmore says,
Essays A.A.L.H. iii 532, both have been used " to evade giving a clear reason."
9 Above 475 and n. 4. 10 Essays, A.A.L.H. iii 527.
11 Thus it was said in Boson v. Sandford (1691) 3 Mod. at p. 323 that, " though
the neglect in this case was in the servant, the action may be brought against all the
478 CRIME AND TORT
character of the older rule which this modern rule had superseded,1
this was only natural. The notion of a liability resting on an
implied command could easily be represented as a development
of the notion of a liability resting upon an express command.
But, at the end of the eighteenth and the beginning of the nine-
teenth centuries, it began to be more plainly seen that this
liability did not depend on agency at all. It followed that these
phrases about implied commands were out of place. Therefore
the phrases " scope or course of employment or authority " take
their place.2 This development helped the judges at length to see
that the rule rested ultimately on grounds of public policy. " The
rule of liability," said Lord Brougham in 1839,3 "and its reason
I take to be this : I am liable for what is done for me and under
my orders by the man I employ, for I may turn him off from that
employ when I please : and the reason that I am liable is this,
that by employing him I set the whole thing in motion ; and
what he does, being done for my benefit and under my direction,
I am responsible for the consequences of doing it." It was put
on the same grounds by Chief Justice Shaw of Massachusetts :
" This rule," he said,4 " is obviously founded on the great principle
of social duty, that every man in the management of his own
affairs, whether by himself or by his agents or servants, shall so
conduct them as not to injure another ; and if he does not, and
another thereby sustains damage, he shall answer for it. If done
by a servant, in the course of his employment, and acting within
the scope of his authority, it is considered, in contemplation of law,
so far the act of the master, that the latter shall be answerable
civiliter. . . . The maxim respondeat superior is adopted in that
case, from general considerations of policy and security." But
both in Lord Brougham's and in Chief Justice Shaw's statements
we can see traces of the old theories. Lord Brougham intro-
duces a phrase about the thing done being for the benefit of the
master ; and Chief Justice Shaw introduces words which are
reminiscent of agency. A little later Lord Cranworth, though he
makes use of the same phrases, stated the principle quite clearly
as an absolute duty to guarantee third persons against hurt aris-
ing from the conduct of a business.5 This truly describes the
owners, for it is grounded quasi ex contractu, though there was no actual agreement
between the plaintiff and them."
1 Vol. iii 382-385.
2Wigmore, Essays A.A.L.H. iii 533 — "the Command phrase disappears as a
regular one, and the Scope of Employment phrase, with its congeners, come into full
control."
3 Duncan v. Finlater (1839) 6 CI. and Fin. at p. 910.
4 Farwell v. Boston and Worcester Rly. Corp. (1842) 4 Met. 49, 3 Macqueen
316.
5 " In all these cases the person injured has a right to treat the wrongful or care-
less act as the act of the master : Qui facit per alium facit per se. If the master himself
CIVIL LIABILITY 479
nature of the liability. As Sir F. Pollock puts it,1 "the liability
of an employer to the public for injuries caused by the acts and
defaults of his servants, is analogous to the duties imposed with
various degrees of stringency on the owners of things which are or
may be sources of danger to others."
We shall see in the next chapter that the older theory as to
the basis of the liability of the employer, which grounded it upon
some negligence in the employer, either because the act of the
servant was imputed to him or because he was negligent in
employing an inefficient servant, has had some very unfortunate
consequences in the rules applied to the liability of the crown for
the acts of its servants. We shall see that, if the true view of the
nature of the employer's liability had been reached at an earlier
date, these consequences might have been avoided.'2
But what, if any, are the limits to this absolute duty ? We
have seen that, from its first appearance, the courts wisely refused
to limit it by confining it to a duty to compensate only those who
were in some sort of contractual relation with the employer ; 3
and, in consequence, a doctrine laid down at the end of the
seventeenth century, has proved capable of regulating satisfactorily
the relations of employers to the public at large under the
changed industrial conditions of this twentieth century.^ But, at
the beginning of the nineteenth century, the question of the extent
of the employer's liability was raised in two classes of cases. The
first class of these cases centres round the question, Who is a
servant? The second class of these cases centres round the
question, What is the employer's liability if the person injured is
not an outsider but a fellow-servant of the tortfeasor ?
(i) The question who is a servant for the purposes of this rule
does not seem to have been raised till the end of the eighteenth
century. In the case of Bush v. Steinman 4 the court held, in
effect, that an employer was liable for the acts of an independent
contractor. But Eyre, C.J., had considerable doubts as to the
justice of imposing such a liability, because the actual tortfeasor
was very remotely connected with the defendant5 The later
had driven his carriage improperly ... he would have been directly responsible, and
the law does not permit him to escape liability because the act complained of was not
done with his own hand. He is considered bound to guarantee third persons against
all hurt arising from the carelessness of himself or of those acting under his orders in
the course of his business," Bartonshill Coal Co. v. Reid (1858) 3 Macqueen at p. 283
per Lord Cranworth.
1 Essays in Jurisprudence and Ethics 128. 2 Vol. ix c. 6 § 1.
3 Above 476. 4 (1799) 1 Bos. and Pull. 404.
5 " At the trial I entertained great doubts with respect to the defendant's liability
in this action. He appeared to be so far removed from the immediate author of the
nuisance, and so far removed even from the person connected with the immediate
480 CRIME AND TORT
cases of Laughter v. Pointer1 and Reedie v. L.N.W.R} have
justified these doubts, and established the modern rule that a
master, though liable for the acts of his servant, is not as a
general rule liable for the acts of an independent contractor.3
But that rule is not without exceptions;4 and this rule, as
mitigated by these exceptions, has been found to be a fair
qualification of the employer's liability to the public.
(ii) It is far otherwise with the rule applied by the common
law in the case where the person injured by a servant is a fellow-
servant. It is curious that no case, in which an action was
brought against an employer for an injury caused by one of
his servants to another, is known to have occurred till the case
of Priestley v. Fowler? In 1837 the court in that case were
unanimous that no such action would lie. To a large extent
they grounded their judgment on the injustice of imposing a new,
and apparently indefinite series of liabilities, upon masters.6 So
far as the judgment was based on technical reasons it proceeded
on three grounds : firstly, from the relation of master and servant
there cannot be implied an obligation on the part of the master to
take more care of the servant than he takes of himself; and any
obligation of this kind, which he is under, is satisfied if he uses
his best endeavours to safeguard his servant. Secondly, the
servant, by entering on and continuing in the employment has
chosen to abide the risk, of which he is likely to know as much
if not more than the master. Thirdly, to allow such actions
would be a direct incentive " to omit that diligence and caution
which he is in duty bound to exercise on behalf of his master, to
protect him against the misconduct or negligence of others who
author in the relation of master, that to allow him to be charged for the injury sus-
tained by the plaintiff seemed to render a circuity of action necessary. . . . I hesitated
therefore in carrying the responsibility beyond the immediate master of the person
who committed the injury," at p. 406.
1 (1826) 5 B. and C. 547. 2(l849) 4 Ex- 244-
3 Pollock, Torts (12th ed.) 79-81.
4 These exceptional rules are well summarized by Underhill, Torts (gth ed.)
63-64.
5 3 M. and W. 1.
c " It is admitted that there is no precedent for the present action by a servant
against a master. We are therefore at liberty to decide the question upon general
principles, and in doing so we are at liberty to look at the consequences of" a decision
the one way or other. If the master be liable to his servant in this action the principle
of that liability will be found to carry us to an alarming extent. He who is respons-
ible by his general duty, or by the terms of his contract, for all the consequences of
negligence in a matter in which he is the principal, is responsible for the negligence of
all his inferior agents. . . . The footman who rides behind the carriage may have an
action against his master for a defect in the carriage owing to the negligence of the
coachmaker, or for a defect in the harness arising from the negligence of the harness
maker, or for drunkenness neglect or want of skill in the coachman," at pp. 5-6 ; the
reasoning is to some extent fallacious, as the coachmaker and the harness maker
would obviously be independent contractors.
CIVIL LIABILITY 481
serve him."1 This judgment was followed a few years later by
Chief Justice Shaw of Massachusetts.2 His judgment is admitted to
be the best exposition of this doctrine, generally called the doctrine
of common employment, which had been first laid down in the
case of Priestley v. Fozvler. He adopted some of the reasoning
of that case;3 but he put the doctrine on a very much firmer
technical ground. He pointed out that the duties existing as
between the employer and his servant were purely contractual.
They were governed entirely by the contract. The contract con-
tained no express clause by which the master undertook to indemnify
the servant against the act of his fellow-servant, and no such term
could be implied. On the other hand, the duties existing as
between the employer and the public were not contractual, and
the law had determined that a duty to indemnify the public for
the torts committed by his servant in the course of his employ-
ment did exist.4 There was thus a good technical reason for
drawing this distinction between liability for wrongs committed
by servants against fellow-servants, and wrongs committed by
servants against outsiders ; for, in the former case, the rights of
the master and servant, having been fully settled by their con-
tract, no place was left for any other liabilities not contemplated
by the contract Moreover, this reasoning answered the objection
that, in a large undertaking, a servant has no more means of control
over a fellow-servant than any other member of the public — " the
master in the case supposed is not exempt from liability, because
the servant has better means of providing for his safety, when he
is employed in immediate connexion with those from whose
negligence he might suffer ; but because the implied contract of
the master does not extend to indemnify the servant against the
negligence of anyone but himself; and he is not liable in tort, as
for the negligence of his servant, because the person suffering does
not stand towards him in the relation of a stranger, but is one
whose rights are regulated by contract express or implied. " 5
But, after all, these decisions to a large extent ignored the
conditions of modern industry. However good the technical
reasons which could be adduced for the doctrine, it was quite clear
that, in a great undertaking like a railway, a servant has as little
opportunity of guarding against the negligence of many of his fellow-
servants as a member of the public ; and he could hardly be said
to have consented to abide risks of which he had neither know-
ledge nor means of knowledge. The limitation thus imposed on
the liability of employers was far too strict — a truth which is
1 At p. 7.
3 Farwell v. Boston and Worcester Rly. Corp. (1842) 4 Met. 49, 3 Macqueen 316.
3 3 Macqueen at pp. 317-319. * Ibid at p. 317. 5 Ibid at p. 320.
VOL. VIII. — 31
482 CRIME AND TORT
emphasized by the fact that no other country in Europe has
adopted any similar doctrine.1 In these latter days the result
of this over-strictness has been that the Legislature has imposed
a liability on employers, which errs almost as much in the
direction of liberality. For under the modern Workmen's Com-
pensation Act'2 a workman, though he has voluntarily entered the
particular business, is better protected from the risks incident to
its conduct than a member of the public — an extravagant degree
of protection, which obviously removes one of the chief incentives
to carefulness on the part of the servant.
It is obvious that the development of the law of crime and
tort, during this period and in the succeeding centuries, has been
affected, almost as much as the law of contract, by the new
influences which began to be felt during this period. The new
territorial state and its larger control over the actions of its
subjects, the new relations between church and state, the growth
of industry and commerce — all had a large influence in shaping
these branches of the law. Much that was mediaeval was
retained, and more was made the foundation of an elaborate
superstructure of rules, which, in many cases, have in effect
created entirely new bodies of law. Much that was admittedly
wholly new was added to meet new needs and new problems.
Though in the criminal law too many antiquated rules both of
substantive and adjective law were retained, yet, on the whole,
the professional developments of this period ifl the law both of
crime and of tort are a credit to the common law. As we can
see from the later history of many of the branches of law
which I have sketched in this chapter, they have resulted in the
creation of a body of principles which has proved to be at once
flexible and permanent — a body of principles, which, on the
whole, has met adequately the constantly new needs of a pro-
gressive and expanding state.
At this point, to adapt the phraseology of the Roman Institutes,
I leave the history of the technical development of the law of
Things, and turn to the corresponding development of the law of
Persons.
1 Pollock, Torts (12th ed.) 101, and see 93 n. (f).
a6 Edward VII. c. 58.
INDEX
Abbott (Lord Tenterden), 249, 264, 265,
266, 267.
Acceptance for Honour, 156.
Acceptor, The, original nature of his
liability to the drawer, 138, 161-162 ;
his liability to the payee, 138-139, 140,
144, 162.
Accessories, 305.
Agency, 222-229 ; unknown to primitive
systems of la%v, 222 ; agents to acquire
property, 222 ; to contract, 222-224 ; see
Brokers, Factors; liability of principal
for acts of agent — the mediaeval prin-
ciple, 227-228 ; need for change — Holt's
decisions, 22g, 252-253, 474-475 ; prin-
ciples applied by the Admiralty, 249-
252 ; their influence on the common
law, 253 ; see Employers' Liability.
Accident, how it came to be a defence to Agreement, the essence of contract, 1 ;
an action for trespass, 456, 457-458.
Accident Insurance, character of, 295 ;
not known in the sixteenth and seven-
teenth centuries, 295-296 ; beginnings
of in England, 297-298.
Accommodation Paper, 169.
Accord and Satisfaction, why satis-
faction was needed, 82-83 ; payment of
in continental law, 43, 44-45 ; contrast
with English law, 46-47 ; how greater
weight might be given to in English
law, 48 ; operation of in discharge of
contract, 80-88 ; effect of on a contract
under seal, 80-81 ; on a simple contract,
S1-S5 ; see Accord and Satisfaction ; the
effect of a novation, 85-87.
a lesser sum not valid as, 40, 83 ; effect Alien Enemies, insurances on goods of,
on these rules of growth of validity of 291.
executory contracts, 40-41, 83-84 ; un- Aliens, made liable to the bankruptcy
certainty as to the law, 84-85. laws, 237.
Account, action of, influence on doctrine Alteration of a written contract, effect
of consideration of the idea that it lies of, 64-65.
for third persons to whose use money is Ames, 85, 92.
paid, 13 ; used to enforce quasi-con- Amsterdam, bank of, i8o-i8r, 183 ; con-
tractual relations, 88. trasted with the Bank of England, 188.
Act of God, defence to an action of Anderson, C.J. , 57, 389.
trespass, 455; expansion of this idea, Anglo-Saxon, Land Books, 118; laws as
455-456- to defamation, 334-335.
Actio Personalis, etc., application of Animals, liability for trespasses of, 456-
to trover, 38. 457, 465-466, 470-471 ; for damage done
Acts of Bankruptcy, 237-238; juris- by, 469-470; see Wild Animals.
diction to determine, 240-241. Ansaldus, 142.
Adequacy, not needed for a valid con- Anti-Christian Beliefs, 405, 408-409,
sideration, 17. 410, 413-414, 414-417, 420.
Administratob, validity of promise of Anvers, the fairs of, 129.
to pay debts and legacies, 27-28, 30. Apostasy, 408.
Admiralty, court of, instruments payable Apprentices, contracts in restraint of
to bearer or attorney en the records of, trade imposed on, 59, 61, 62.
148 ; bills of exchange on the records Aquinas, 103.
of, 152 ; its jurisdiction in insurance Arabic Law, suggested origin of bill of
cases, 283-284, 288; rules as to insur- exchange in, 133-134; influence of on
ance evolved by, 290-291 ; influence of
law administered by on doctrine of
employers' liability, 475-476.
Admiralty Droits, 269.
Adstipulatio, 132, 133.
European commercial law, 133.
Aristotle, views of as to usury, 101.
Arrest, of a ship, effect of Admiralty
process of on the maritime lien, 271,
272-273.
Affirmation, allowed in place of an oath, Arson, 305.
413, 416. Ashley, Sir W., 101, 103, 104, 105, 107.
Affrays, 326. Asportation, of chattels, absolute lia-
African Company, The, 209, 210. bility for, 466-468.
483
484
INDEX
Assault and Battery, 421-423.
Assignment, power of commissioners in
bankruptcy to make an, 239; relation
back of title to act of bankruptcy, 240 ;
validity of if made before bankruptcy,
242.
Assumpsit, action of familiarizes lawyers
with the idea of an enforceable agree-
ment, 1 ; elements in consideration due
to, 2-3 ; facts needed to establish cause
of action in, called consideration, 4, 6-7 ;
express, 8 ; indebitatus, 8 ; has shaped
the English theory of contract, 46 ; its
effect on the law of, 46-47 ; has shaped
law as to invalidity enforcement and
breach of contract, 87-88; a plaintiff
must show performance as a condition
of recovery by action of, 72 ; used to
enforce rights of the parties to a bill of
exchange, 159-160.
Astbury, J., 395.
Atheism, see Anti-Christian Beliefs.
Atkin, L.J., 395, 396, 466.
Attempts to commit crimes, 434.
Attorney, promises to pay creditor's at-
torney, 116-118, 119-121; an agent for
litigation, 222.
Average, see General Average ; custom-
ary payments called by that name, 255.
15
Bacon, his views on usury, 108 ; 312, 313,
314, 446, 453, 454, 464-
Bagehot, 100, 188, 214.
Bailee, liability of at common law, 259 ;
basis of his liability, 452.
Baldus, 126.
Baldwin, C.J., 424.
Bank of England, 135-136, 183, 188-
189, 203, 2og; liability of shareholders
in, 205 ; incorporation of, 211-212, 218 ;
offer to take over the national debt,
212; notes of the, 191.
Bank Notes, 190- igi ; payment by, 191-
192.
Bankers, act as exchangers, 127; used
by the merchants to effect a transport
of money, 129-130.
Banking, 177-192; origins of, 177-178;
comparison of origins of, with origins
of bills of exchange, 130 ; uses made of
banks, 178-179 ; political importance of,
179-180; state control of, 180-181 ;
state banks, 181-182; sixteenth and
seventeenth century descriptions of,
182-183 ; proposals to establish banks
in England, 183-184; not definitely
organized in Elizabeth's reign, 185 ;
private banking — becomes connected
with the goldsmiths, 185-186; why no
public bank was established till the
Revolution, 186-188; establishment of
the Bank of England, 188-189; its
services to the government, 189 ; be-
ginnings of law as to, 189-192; effect
of on development of joint stock com-
panies in Italy, 208 ; see Cheques,
Bank Notes.
Bankrupt, promises to pay by a, 26, 27,
31 ; estate of a — rule of rateable division,
239, 242 ; of what it consisted, 239-240 ;
after-acquired property of, 239 ; equit-
able interests and settled property of,
241, 242 ; see Voluntary Conveyances,
Reputed Ownership.
Bankruptcy, 229-245 ; Italian develop-
ment of law of, 229-230 ; not known in
England till the sixteenth century, 229-
233 ; the Council and the unfortunate
debtor, 233-234 ; bad effects of the
abolition ot its jurisdiction, 245 ; seven-
teenth-century legislation as to un-
fortunate debtors, 234-236 ; measures
against dishonest debtors, 236 ; these
measures are the origin of the bank-
ruptcy law, 236-237; Henry VIII. 's
Act, 236-237 ; Elizabeth's and James I.'s
Acts, 237-240 ; persons who can be-
come bankrupt, 237; acts of, 237-238,
240-241 ; jurisdiction in, 238 ; powers
and duties of commissioners in, 238-
239 ; assets available for distribution in,
239-240 ; effect of on bankrupt's lia-
bility, 240; policy of the statutes of,
240; issue of commissions in, 241;
cases on the statutes of, 241-242 ; joint
and separate estates of bankrupt
partners, 242-243 ; vendor's lien, 243 ;
stoppage in transitu, 243 ; defects of
the statutes of, 243-244 ; need for the
chancellor's interference, 244 ; unsatis-
factory state of the law, 244-245 ;
actions for imputation of, 349, 355 ; see
Compositions with Creditors.
Banks, private and public — abroad, 180,
181-182 ; in England, 185-189.
Barbon, Nicholas, 294.
Barbour, 42.
Barcelona, its code of insurance law,
281 ; historical importance of this code,
281-282 ; its contents, 282-283.
Bardi, the, 178, 207.
Battery, see Assault and Battery.
Bearer, position of bearer of old instru-
ments payable to their producers, 117,
118, 121-124; effect of making bills
payable to in early seventeenth century,
154-155, 156, 157, 164-165 ; recognition
of rights of helps to establish the main
feature of negotiability, 165-166; notes
payable to not assignable in seventeenth
century, 171 ; effect of statute as to
notes on bills to bearer, 176.
Beaumont, J., 389.
INDEX
483
Beneficium Competenti.5, as between
partners, 195.
Benbfit of Clergy, 444.
Benefit to Promisor, not an essential
element in consideration, 10-11; con-
fusion caused by regarding it as such,
24.
Bensa, 261, 262, 274, 275, 276, 283, 296,
297.
Bentham, 100.
Berkley, J., 81.
Bermuda Company, The, 209.
Beven, 464.
Bills of Conformity, 244.
Bills of Debt, 148-151; proposal to
make them assignable, 171.
Bills of Exchange, Continental origins [
and development — the contract of cam-
bium, 126- 13 1 ; machinery to give effect
to that variety of the contract which
concerned the transport of money, 131-
132 ; this is the probable origin of these
bills, 132, 136-137 ; other suggestions as
to origins of, 132-136; relations of the !
parties to, 137-140 ; see Drawer, Ac- \
ceptor, Payee, Indorsee ; development of
their negotiable character, 140 145 ;
The English development — introduction
from abroad, 151 ; reception of foreign
doctrine as to, 155-156, 161 ; early forms
of, 152-153; parties to, 153-154; how
negotiated, 154-155 ; Marius's account '
of, 155-157 ; how far negotiable in the j
seventeenth century, 157-158; inland
and outland bills, 158 ; application of
assumpsit to enforce the rights of
the parties to, 159-160; use made of
mercantile custom, 160-161 ; relations
of the parties to, 161-163 ; development
of the negotiable character of, 163-
168 ; peculiarities of the English law as
to, 169-170 ; payable to a named payee
only, 156 ; indorsement of induced by
fraud, 51 ; cheques a variety of, 190.
Bills of Lading, 254, 255-257 ; origins,
255-256 ; drawn in sets of three, 256 ;
assignability of, 257 ; why not negoti-
able, 257 ; stoppage in transitu, 243, 257.
Bills Obligatory, see Bills of Debt.
Bills of Sale, ships conveyed by, 246.
Birkenhead, Lord, 418.
Blackburn, Lord, 417, 456, 471.
Blackstone, his views as to quasi-con-
tract, 96 ; as to employer's liability,
477; 227, 326, 373, 377, 409, 414, 416, ;
441. 454-
Blasphemy, 333, 337, 405. 407-409, 411,
413-414, 414-416.
Blencowe, J., S6.
Boatsman, the, 248.
Bona Fide holder for value, of a bill of
exchange, position of in seventeenth
century, 157-158, 165-167.
Bonds, imposing restraints on trade, 59,
60 ; assimilated by the merchants to
bills of exchange, 175.
Bosanquet and Puller, their note on
consideration, 36-38.
Bottomry, loans on, 261263; origins,
261-262 ; confer a lien, 262 ; come to
entail no personal liability, 262-263 '
risks undertaken by the lender, 263 ; re-
lation of to marine insurance, 277 ; usury
laws not applicable to, 104 ; master's
power to hypothecate ship cargo or
freight a variety of, 249.
Bowen, L.J., 39, 56.
Bracton, 53, 80, 102, 439, 452.
Bradlaugh, 413.
Brian, C.J., 20, 454.
Brinklow, his criticisms on the law as to
execution for debt, 232, 245.
Brissaud, 43, 145.
Brokers, 102-103, 224-225, 225, 279.
Brooke, J., 324.
Brougham, Lord, 478.
Brunner, 116, 121, 141.
Bubble Act, the, 220, its good and bad
effects, 220-221 ; legal problems raised
by its repeal, 221.
Buller, J., 28, 29, 87.
Burglary, 304-305.
Burke, 383.
burlamachi, 183.
Business, contracts in restraint of trade
on the sale of a, 58, 59, 62.
Byelaws, action of debt for breach of,
88 ; indebitatus assumpsit for breach of,
90 ; Holt's ineffectual opposition, 90-
92.
Cairns, Lord, 471.
Calimala, Florentine statute of the, 132.
Calvin, his views as to usury*, 109.
Cambium, the contract of, 126 ; minutum,
126-127 '■> siccum or fictivum, 127-128 ;
the agreement for the transport of
money, 128 ; origin of the modern
mechanism of exchange and banking,
128 ; how developed for this purpose,
129-130; use of in England, 130-131 ;
machinery for giving effect to it, 131-
132; letters of payment, 132-136; the
instrumentum ex causa cambii, 132,
136-137 ; insurances disguised as con-
tracts of, 275-276.
Campsores, the earliest bankers, 177,
178.
Candler, Richard, 286, 287.
Canon Law, influence of on doctrine of
consideration as applied in the Chancery
to contract and uses, 5 ; influence of
theory of causa in en continental codes,
42-43 ; influence on law of agency, 223 ;
486
INDEX
as to usury, 101 ; the law of the Eng-
lish Church in the Middle Ages, 402.
Caorsini, the, 177.
Capias, ad respondendum, 231 ; ad satis-
faciendum, 231.
Capital, trading with borrowed, helped
by growth of banking, i8g ; utilization
Of by means of joint stock companies,
205, 207-208; hindered by the Bubble
Act, 221 ; hazy ideas as to nature of,
217; dividends paid out of, 216-217.
Carr, 199.
Carriage, the contract of, 254-261 ;
incidents of, 261-273 ; see Bottomry,
General Average, Salvage, Maritime
Liens.
Carriers, duties of enforced by actions on
the case, 89; liability of at common
law, 259, 452-453 ; in the court of
Admiralty, 259 ; 449, 474, 476.
Case, actions on the, brought by persons
to whose use property has been con-
veyed, 222 ; how they helped to intro-
duce the idea of negligence, 449-451.
Cattle Trespass, liability for 451-452,
470-471.
Causa, in continental law, 42-45 ; writing
as a, 45-46.
Cautiones, ex causa cambii, 136-137.
Caveat Emptor, 69.
Certainty, needed in a consideration, 17-
18.
Cessio Bonorum, Roman system of
adopted in the Italian cities, 230.
Champagne, the fairs of, 129.
Chancery, the court of, effect given by
to an agreement, 1 ; elements in con-
sideration due to, 3 ; meaning attached
to consideration by, 4-5 ; influence of
this meaning on common law doctrine,
7-8, 12-13; early case on a bill of
exchange in, 152 ; jurisdiction in insur-
ance cases, 2g2, 293.
Charter Parties, 254, 255.
Charters, of trading companies, con-
tents of early, 200-201 ; questions
whether their activities were limited by
their, 215, 216 ; trade in obsolete
charters, 215-216.
Cheques, 190-191 ; payment by, 191.
Choses in Action, why not assignable
in early law, 115, 147, 150; partly
caused by fear of maintenance, 398 ;
how the prohibition against assignment
was evaded, 117-118 ; transfers of
documents allowed to operate as trans-
fers of, 118-119.
Christianity, offences against, 402 ;
how far a part of English law, 403,
405, 408, 409, 410, 413.
Church and State, relations of, 402,
403-404, 406-408, 418, 420.
Clerk of a Ship, the, 248.
Cloth Trade, connection of with bank-
ing business, 185.
Code Napoleon, the, 43.
Coercion, how far a defence to a charge
of crime, 443.
Cohen, Arthur, 394.
Coke, 10, 18, 19, 22, 24, 36, 50, 52, 58,
79, 80, 81, 82, 227, 259, 308, 311, 312,
3!3, 314. 315. 3*9. 323. 326, 336, 339.
355. 368, 38°. 386, 397. 399. 4°9, 435.
439, 441, 451, 452; his views on the
policy of the bankruptcy acts, 240.
Coleridge, J., 415.
Coleridge, Lord, C.J., 410, 415.
Collision, 266-269 ; scantiness of early
law, 266 ; the modern rules, 266; cases
rare in the sixteenth century, 267 ;
reason for this, 267 ; cases where the
loss is divided, 267, 268 ; logical nature
of the Admiralty rules as to, 268-269.
Colloquium, the, 369.
Colonization, companies for 201, 209;
their disappearance, 209-210.
Combinations, danger of to the state,
332, 382-383 ; of employers and work-
men, 392.
Commenda, contract of used to evade the
prohibition of usury, 104 ; its nature,
195-196 ; influence of on English law,
197 ; stipulations as to risk in, 275 ; 138.
Commerce and Industry, wrongs con-
nected with, 430-431.
Commercial Law, 99-245 ; see Usury,
Negotiable Instruments, Banking, Com-
mercial Societies, Agency, Bankruptcy ;
influence on of state needs, 135-136.
Commercial Societies, 192-222 ; varie-
ties of, 192-193 ; early forms of — gilds,
193 ; influence of gilds on later com-
panies, 193-194; the commenda, 195-
196 ; why it did not take root in
England, 196-197 ; the societias, 197-
199 ; the firm is not a separate person
in English law, 198-199, see Partner-
ship; application of corporate idea
to — advantages, 199, 200-205, 213-214;
early companies, 199-200 ; joint stock
and regulated companies, 206-213, see
Companies, South Sea Company ; scanti-
ness of rules of law applicable to, 215,
217-218 ; effects of this, 215-217, 218 ;
state encouragement to speculation in
shares of, 218, 219 ; the Bubble Act,
219-221 ; effects of its repeal, 221.
Commission of Bankruptcy, the issue
of, 234, 241.
Commissioners in Bankruptcy, 238 ;
controlled by the Chancery, 238, 244 ;
by courts of common law, 240-241 ;
powers of, 238-239 ; duties of to credi-
tors and the bankrupt, 239, 240, 241 ;
incompetence of, 243-244 ; liability of,
244.
INDEX
487
Commissioners for Insurance Cases,
287-288 ; why a failure, 288.
Commissioners of Trade, 214.
Common Employment, the doctrine of,
480-482.
Common Law Commissioners, views as
to law of bankruptcy, 245.
Common Law Courts, jurisdiction in in-
surance cases, 288 ; rules as to insur-
ance evolved by, 291-292 ; why defect-
ive tribunals for these cases, 292-293 ;
effect on the law, 293.
Companies, influence on of gild tradi-
tion, 192-194 ; joint stock and regulated,
194, 202, 205, 206; advantages of in-
corporation, 199 ; companies of four-
teenth, fifteenth and early sixteenth
centuries, 199-200 ; why they were
incorporated, 200-202 ; commercial ad-
vantages of incorporation, 202-203 ;
liability of their members to creditors,
203 ; liability to the company — levi-
ations, 204; limitation of liability,
204-205 ; transition from regulated to
joint stock form, 206-207 ; origins of
joint stock principle, 207-20S ; incor-
poration of large partnerships, 208 209 ;
need to organize trade and colonization,
209; later history of these companies,
209-211 ; use made of joint stock prin-
ciple to borrow money — the Bank of
England and the South Sea Company,
211-213 ; commercial advantages of this
principle, 213-214; rise of a market for
shares, 214 ; phenomena of speculation,
214-215 ; no clear line between cor-
porations and partnerships, 215; scanti-
ness of the law, 215-216 ; no principle
of ultra vires, 216; irregular accounts,
216 ; rights as against a dissolved
company, 217 ; encouragement of
speculation by the state, 218-219 ! the
Bubble Act and its effects, 219-221 ; help
forward growth of a law of agency, 223.
Compositions with Creditors, how
reconciled with the doctrine of consid-
eration, 85 ; enforced by the Council,
233-234 ; loss of this power, 244, 245 ;
bad results of this, 245.
Compulsion, how far a defence to a
criminal charge, 444-445.
Comyns, 22, 373.
Concurrent Conditions, effect of on
the law as to enforcement of contracts,
74-75 ; failure of performance by breach
of, 77.
Condemnation, of ships, 246.
Conditions, effect of the breach of, 77, 78.
Conscience, a ground for enforcing
agreements, 27-28 ; see Moral Obliga-
tion.
Consent, absence of a cause of invalidity
of a contract, 50-51.
Consideration, evolution of the term, 3-
8 ; use of by the common law in fifteenth
and early sixteenth centuries, 4 ; use
of by the Chancery, 4-5 ; not a technical
word in early sixteenth century, 5-6 ;
gains a technical meaning in connection
with assumpsit, 6-7 ; but influenced by
other ideas, 7-8 ; mutual promises, 9 ;
precedent debt, 9-10, see Past Con-
sideration ; detriment to promisee, 10-
11 ; must move from promisee but need
not move to promisor, n-13 ; executory
or executed, 13-14 ; past and executed,
14-16, 38-40; adequacy, 17; certainty,
18; must be of some value, 18-24;
forbearance to prosecute, 18- ig ; release
or promise to release a debt, 19-23,
40-41 ; performance or promise to per-
form a contractual duty, 23-24, 41, 84 ;
growth of idea in eighteenth century
that moral obligation is a, 26-29, 30-
33 ; influence on of mercantile law in
eighteenth century, 29-30 ; probable
results on the doctrine of, 34 ; rejection
of these eighteenth century ideas, 34-
38 ; results on the modern doctrine,
38-42 ; comparison of with the contin-
ental " cause " 42-46 ; strong and weak
points of, 46-47 ; why the doctrine is
an anachronism, 46-47 ; strong points
of the eighteenth century views, 47-48 ;
how the doctrine might be reformed,
48 ; effect of illegality of, 53 ; rules
as to in contracts in restraint of trade,
59, 62 ; application of doctrine to dis-
charge of contract, 82-85 ; remedy in
case of total failure of, 93-94, 97 ; ap-
plication of doctrine of to bills of
exchange, 167-168; presumption of as
against an acceptor of a bill of exchange,
143, 167.
CONSOLATO DEL MARE, 28l.
Conspiracy, 378-397 ; influences which
formed the law of, 378-379 ; effect on
of the abolition of the Star Chamber,
361-364; The Crime, 379-384; the gist
of the offence, 380-381 ; meaning of
the term " unlawful act," 3S1 ; origin
of wide definition of the crime, 382 ;
why expedient that it should be wide,
382-383 ; connection with public policy,
383-384; the statutory writ and the
action on the case for, 385-391, see
Malicious Prosecution ; The Tort, 392-
397 ; why it developed later, 392 ;
relation to the crime, 392-394 ; relation
to the statutory writ and the action on
the case, 393 ; conflicting views as to
in modern cases, 394-396 ; the modern
law, 395-397-
Conspiracy to Levy War, when treason,
313, 314. 318-319.
Constitutional Society, the, 318.
488
INDEX
CONSTITUTUM DEBITI ALIENI, 137.
Construction, of defamatory words,
358-359 ; bad effect of reporting cases
as to the, 359-360.
Constructive Treason, see Treason.
Contarini, 179.
Contract, its essence, 1 ; need to dis-
tinguish enforceable from unenforceable
agreements, 1-2, see Consideration ;
causes of invalidity of, 49-65, see Mis-
take, Duress, Illegality, Impossibility,
Fraud, Misrepresentation, Alteration;
effects of invalidity, 65-67, see Void,
Voidable, Unenforceable ; enforcement
of, 70-76, see Dependent Stipulations,
Independent Stipulations, Concurrent
Conditions, Special Contracts; discharge
of, 77-87 ; see Breach, Performance,
Tender, Agreement, Novation ; liability
on if made by an agent 223-224, 227-
228; implied in law, 98, see Quasi-
Contract, Implied Contract; persuasion
to break a, 448.
Contractual Relations, interference
with, 429, 431, 448.
Contractus Trinus, The, 104-105.
Contributory Negligence, 459-462 ;
origin of doctrine of, 459-460 ; roughly
pieced on to mediaeval principle of lia-
bility, 460-461 ; effect of this on the
law, 461-462 ; anomalous character of
the doctrine, 462 ; compared with the
Admiralty rule, 268-269.
Conversion, absolute liability for, 466-
468.
Convoy, ship warranted to depart with a,
292.
Co-owners of Ships, their rights inter
se, 247-248; powers of the court of
Admiralty in relation to, 248.
CORNWAILLE, RALPH, 102.
Corporate Idea, application of to com-
mercial societies, 199, 200, 205, 215-217 ;
application of to those societies stopped
by the Bubble Act, 2rg-22i.
Cotesmore, J., 85.
Cottington, Lord, 187.
Council, the, its interference in favour
of unfortunate debtors, 233-234 ; in cases
of fraudulent bankruptcy, 236 ; bad re-
sults of the cessation of this jurisdiction,
244-245 ; its regulation of insurances,
285-288.
Covenant, action of, performance must
be proved as a condition of recovery by,
72.
Cranworth, Lord, 454, 455, 468, 478.
Creditor, promise to pay to the nuncius
of a, 115-116, 119-121.
Crew, rules as to the legal position of
the members of a, 253-254.
Crime and Tort, distinction between
them, 306.
Criminal Conversation, the action for,
43o.
Criminal Law, influence on, of the Legis-
lature, 301-302, 305 ; of the Council and
Star Chamber, 302 ; of the common law,
302, 305 ; of the combination of Star
Chamber and common law doctrines,
306 ; external influences, 306-307.
Criminal Offence, actionability of
words imputing a, 347-348, 353354-
Croke, J., 15, 81.
Cromwell, Thomas, 108.
Culpa, liability grounded on by the
civilians, 258 ; not by the common
lawyers, 259 ; effect on rules as to
collisions at sea, 266-269.
Cunningham, 189.
Custom, assumpsit for money due by
virtue of a, 90.
D
Dallas, C.J. ,^456.
Dalton, 329/
Damage, action for words causing, 350,
358 ; what damage would give rise to
the action, 357-358; what was regarded
as natural and probable, 358 ; action for
malicious statements which cause, 352 ;
the essence of the tort of conspiracy,
393 ; absque and sine injuria, 425, 432.
Damages, the.measure of for negligence,
462-464.
Damnum Emergens, 103.
Dangerous Acts, stricter liability en-
tailed by, 468 ; mediaeval form of the
rule, 469-470; the modern rule, 471-
472.
Darien Company, the, 213.
Days of Grace, 156.
De ILeretico Comburendo, the writ,
402.
Debray, 143.
Debt, a precedent a consideration for a
promise to pay, 9-10; really a past
consideration, 9, 16 ; effect of this on
growth of idea that moral obligation is
a valid consideration, 9, 25-26, 28, 31,
36-37, 39-40; how far payment or a
promise to pay the whole or a less sum
is a valid consideration, 19-23 ; im-
prisonment for, 230-232 ; defects in
common law rules on this topic, 232-
233. 245; commissions appointed by
the Council to enquire into, 234 ; legis-
lation as to, 234-236.
Debt Action of, its proprietary nature,
1 ; conditions under which it lay, 3-4,
71-72 ; elements in consideration due to,
3, see quid pro quo; action by third
person to whose use money is paid, 13 ;
lies to enforce an executory contract of
INDEX
489
sale, 14 ; and to enforce quasi-con-
tractual relations, SS.
Deceit, action of, 67, 68, 426.
Deed, when " non est factum" can be!
pleaded, 50 ; effect of in discharging a
contract, 80-81.
Defamation, 333-378 ; a crime and a
tort, 333 ; the division between libel and
slander, 334; early history, 334-335*.
development by the common law courts
and the Star Chamber, 335-336 ; The
Criminal Offence — 336-346 ; against pri-
vate persons, 336-337 ; against the
government, 337; obscene writings, 337,
407 ; seditious libels, 337-338 ; rules as
to, 338-341 ; effect of the expiry of the
Licensing Act, 341 ; the malicious in-
tent, 341-342; this question important
after the abolition of the Star Chamber,
342-343 ; the position of the jury, 343-
345 ; beginnings of the controversy on
this matter, 345 ; rudimentary state of
the law on many points, 346 ; The Tort
— 346-378 ; nature of the action on the
case, 346-347 ; words actionable per se,
347-350; other words, 350-351 ; slander
of title, 351-352; torts analogous thereto,
352 ; discouragement of the action on
the case, 353-355 ; doctrine of " mitior
sensus," 355-356 ; liability for repetition
of a defamatory statement, 357 ; rules
as to the damage recoverable, 357-358 ;
effect on the law, 358-361 ; origin of
the distinction between libel and slander,
361-365 ; good and bad results on the
law of its establishment, 365-367 ; the
innuendo, 368-369 ; the colloquium,
369 ; proof that the statement was made
of the plaintiff, 370-371 ; publication,
371 ; the place of malice, 371-375 ;
justification, 375-376 ; privilege, 376-
377 ; good and bad points of the law,
378 ; actions for to question a decision
that a man is a bankrupt, 241.
Defamatory Words, not generally a
crime, 337.
Delegatio, 132, 133.
Delivery, when needed to pass the
property in a ship, 246.
Demurrage, 260.
Denman, C.J., 34, 37, 45, 413.
Deodand, the, 272.
Dependent Promises, 73 : failure of
performance by breach of, 77.
Deposit, banks of, 179 ; notes, see Bank \
Notes.
Detinue, action by person to whose use
chattels are conveyed, 222.
Detrimbnt to Promisee, an essential
element in consideration, io-ii.
Deviation, a breach of the contract of
carriage, 260 ; effect on the contract of
insurance, 280. 291.
Dicey, 327.
Discharge of Contracts, contracts of,
20-21 ; effect of rise of executory con-
tracts on rules as to, 22-23, 4°_4I ' by
breach, 77-78 ; by performance or
tender, 78-80; by agreement, 80-85, see
Accord and Satisfaction, Accord Exe-
cutory ; by novation, 85-87.
Disease, imputation of when actionable,
348-349. 354-
Division of Loss, Admiralty rule as to,
267, 268-269.
Doctor and Student, the, 5, 10, 42,
470.
Dodderidge, J., 3S7, 456.
Dolus, liability based on by the civilians,
258 ; not by the common lawyers, 259 ;
effect of this in collision cases, 266-
269.
Domat, 43.
D'Ouvilly, Sir Gerbier, 1S4.
Drawee, see Acceptor.
Drawer, relation to persons who have
paid money to be transported, 137, 153,
161; relation to drawee, 138, 153, 161-
162; relation to payee, 139, 153, 162-
163.
Drink, implied warranty on the sale of,
69.
Drunken Persons, contractual capacity
of, 52-53.
Drunkenness, effect of on criminal
liability, 441-443.
Duelling, 353, 364.
Dunbar, Mr., 178.
Dunedin, Lord, 47, 394, 396.
Duress, effect of, 51 ; remedy for money
paid by, 94.
Dutch, commercial organisation of, 184.
Early Law, why negotiable instruments
were impossible in, 115.
East India Company, 194, 209, 210-21 1 ;
becomes a joint stock company, 206.
Eastland Company, 199.
Ecclesiastical Courts, jurisdiction of
over usurers, 102 ; over defamation,
335. 348.
Ecclesiastical Law, part played by in
the Middle Ages, 402 ; effect of the
Reformation, 404 405, 406-407 ; anomal-
ous position of fc-day, 417.
Eldon, Lord, 317, 411.
Eliot, 339.
Ellenborough, C.J., 33.
Employer's Liability, mediaeval ideas
as to, 227-228, 472-473 ; need for new
rules, 228-229 * rules applied by the
Admiralty, 249-252 ; influence of these
rules on the common law, 252-253, 475-
490
INDEX
476 ; history of the doctrine of, 472-
479 ; why the modern doctrine was
introduced, 473-474 ; Holt's decisions,
474-475 ; influences which created it,
475-477 ! confusion as to its principle,
477 ; its real basis, 477-479 ; limitations
on it — the independent contractor, 478-
480 ; common employment, 480-482.
Employes, contracts in restraint of trade
imposed on, 58, 59, 61, 62.
Enforcement of Contracts, rules as
to, 70-76; how far performance is a
condition precedent, 71 ; rules in action
of debt, 71-72 ; in actions of covenant
and assumpsit, 72-73 ; variation of
these rules — independent promises, 73 ;
development of artificial rules of con-
struction, 73 ; unsatisfac'.ory state of the
law, 73-74 ; mutual premises and con-
current conditions, 74-75 ; rules applic-
able to indebitatus and special assump-
sit, 76 ; action on a quantum meruit,
76.
Equity, rules of as to contracts of
lunatics and drunken persons, 53 ; rules
of as to partners, 217-218; as to lia-
bility of a principal for his agent's acts,
229.
Equity of Redemption, influence of the
usury laws, 106.
Erle, C.J., 41.
Erskine, L.C., 345, 443, 454-
Erskine, J., 415.
Esher, M.R., 397.
Ex Nudo Pacto, etc., 30, 44.
Exceptio Pecunl'E non Numerate,
138, 143.
Exchangers of Money, position of in
England in sixteenth and seventeenth
centuries, 126-127 ! h°w usec* by mer-
chants to effect the transport of money,
128-130.
Exchequer, the closing of the, 186, 187.
Executed Consideration, 13 ; how
different from past consideration, 14-
15 ; services done at request, 15 ; re-
garded as exception to invalidity of
past consideration, 16-17; extension of
this idea, 25-26, 31-33 ; settlement of the
modern doctrine, 37, 38-40.
Execution, process of for debt, primitive
ideas, 229 ; history of, 230-232 ; in-
adequacy of the law, 232-233.
Executory Consideration, 13-14.
Eyre, C.J., 479.
Eyre, J., 474.
Factors, how distinguished from brokers,
225-226; position of, 226227; mer-
chants, liable for fraud of their, 475.
Failure of Performance, breach of
contract by, 77-78.
I Fair Courts, treatment in of instruments
payable to bearer or attorney, 147 ; of
commercial agency, 223.
Fairs, accounts of trading centres of
Europe adjusted at, 179.
' False Imprisonment, 388, 423 ; action
of to question finding that a man is a
bankrupt, 241.
Fathers, inadequate protection of their
rights to their children, 427-429.
Fenner, J., 24.
Feoffee to Uses, 222.
Ferrara, 177.
Fieri Facias, writ of, 230.
Finlay, Lord, 416, 418.
Fire, insurance against, 294 ; liability for
damage by, 469, 474, 476.
Firm, see Partership.
Fitzherbert, 53, 69, 424.
Fleming, C.J., 228.
Fleta, 50.
Florence, early insurance contracts in,
276 ; insurance legislation in, 281.
Food, implied warranty on sale of, 69.
Ford, Sir R., 187.
Forestallers, 57.
Forms of Action, effect on law of tort
of its development through the, 431-
432.
Foster, 314, 316, 317, 320, 436.
Fox's Libel Act, 374.
Franciscans, the, 106.
Frankfort, the bank of, 181.
Fraud, how remedied in the Middle
Ages, 67-68 ; application of law as to,
to contracts of sale of goods, 63-
69 ; law too narrow, 69 ; the idea of
warranty, 69-70; development of the
law, 70, 77 ; its effect on a contract, 78 ;
payments induced by, 94.
Frauds, Statute of, effect on contracts
of non-compliance with, 65, 66 ; in-
direct effect on doctrine of considera-
tion, 35-36.
Fraudulent Bankruptcy, 236.
Freedom of Trade, ideas as to, 57, 58,
60-61, 62; effect on certain privileges of
early joint stock companies, 209-210.
Freight, the master's power to hypothe-
cate, 249 ; the mother of wages, 253-
254, 259, 260 ; payment of where goods
fail to reach their destination, 259-260;
stipulations as to in charter parties,
255-
French Law, as to "cause," 43, 44, 45 ;
as to bills of exchange, 169.
French Lawyers, influence of Renais-
sance school of on law of negotiable
instruments, 122, 133, 143, 144.
F"reundt, his theory as to the origin of
bills of exchange, 134.
INDEX
491
Friendly Society (insurance), the, 294.
Fund of Credit, conception of a, how
used in seventeenth century, 211-212;
exaggerated ideas as to the powers of,
218-219.
Gawdy, J., 24, 389.
General Average, 255, 263-265 ; in
laws of Oleron, 263-264 ; based on
Rhodian law, 264 ; rirst applied to
jettison, 264 ; development of, 264-265 ;
how limited, 265 ; what contributes to,
265 ; rules as to valuation of goods
lost, 265 ; lien on cargo for, 265.
Gbneral Ships, 254.
Genoa, the fairs of, 129; loans raised by,
208 ; the bank of, 208 ; its Officium
Robarie, 275 ; oldest insurance contract
in archives of, 276 ; centre of insurance
business, 278 ; insurance legislation at,
281.
Gbrbier, Sir Balthasar, 183.
Germanic Law, duty of keeping faith in,
43, 44 ; procedure in how different from
Roman procedure, 122.
Gilds, influence of on companies and
partnerships, 193-195, 200.
Glanvil, 102.
Glanville, J., 428.
Goldsmiths, exchange business of, 127 ;
deposit of money with, 172 ; develop-
ment of banking by, 178, 185-186 ;
criticized for undertaking this business,
187-188 ; practice of followed by the
Bank of England, 188-iSg.
Good Consideration, 5, 6; will not
support a contract, 12 ; "influence of on
doctrine of consideration in relation to
contracts, 12-13.
Gordon Riots, the, 320-321, 331.
Government, what amounts to a libel on
the, 340-341.
Governmental Powers, contained in
early charters of companies, 201 ;
cease generally to be given, 209-210.
Greek Law, stipulations as to risk in
contracts of carriage, 274.
Grose, J., 454.
H
Habeas Corpus, writ of, to question the
legality of a commitment by Bankruptcy
Commissioners, 241.
Hagenbuck, Christopher, 183.
Hale, 308, 309, 312, 313, 314, 317, 319,
320, 329, 364, 408, 436, 437, 438, 440,
441. 442, 443. 444. 44^. 464. 469-
Hales, J., 304.
Hamburg, bank of, 181 ; system of fire
insurance in, 294.
Hand in Hand Society, the, 294.
Hardwicke, L.C., 28, 409, 413.
Hawkins, 308, 326, 399, 408, 441.
Heath, Sir R., 183.
Herne, his book on pleading, 159, 160.
High Commission, the court of, 406-407.
Hobart, C.J., 54.
Hobbes, 382.
HOLLES, 339.
HOLLOWAY, J., 473.
Holmes, Mr. Justice, 372, 472.
IIolroyd, J., 374.
Holt, C.J., his opposition to the extension
of indebitatus assumpsit to remedy
quasi-contracts, 90-91 ; his views as to
the non-negotiability of promissory
notes, 172-176 ; his decisions on em-
ployers' liability, 229, 252-253, 474-475,
477 ; 39- 93. 94. 95. 96, 146. 161, 166,
167, 168, 191, 257, 299, 303, 316, 326,
337, 339. 341. 344. 354. 39«, 393. 400,
424, 426, 435, 452, 453, 469, 470, 471.
Homicide, 303-304; when justifiable,
3°4, 330-33I-
Houghton, John, 214.
Hudson, 382.
Hudson's Bay Company, 209, 210.
Hull, J., 58.
Husband, protection of his interest in his
wife's consortium, 430.
Huvelin, his description of the contract
of cambium, 129-130; his criticism of
theories as to the origins of bills of
exchange, 133-134 ; 138.
Hypothec, origin of certain maritime
liens, 271.
Hypothecation, of a ship, the creditor's
rights, 246-247 ; the master's power in
relation to, 249.
I
Idiot, see Lunatic.
Illegal Act, no action for words causing
an, 358.
Illegality, effect of on a contract, 53 ;
case where some stipulations are illegal
and some legal, 53-54 ; stipulations not
clearly illegal, 54 ; created by common
and statute law, 54 ; see Public Policy,
Restraint of Trade ; recovery of money
paid under a contract void for, 94.
Immorality, no action for words imput-
ing. 348, 357-
Implied Contracts, enforced by as-
sumpsit, 89-90 ; distinguished by Holt
from quasi-contracts, 90-91 ; confused
with quasi-contracts, 96, 98.
Impossibility, promises absolutely im-
possible, 63 ; impossible conditions in
492
INDEX
bonds, 63 ; legal impossibility, 63 ;
when a promise is absolute, 63-64 ;
when conditional on possibility, 64 ;
created by one of the parties, 78.
Indebitatus Assumpsit, when it lay,
75-76 ; use of to enforce quasi-contracts,
88-89, 89-96 ; 8, 16, 17.
Indemnity, marine insurance a contract
of, 278, 279, 290 ; different from life
and accident insurance, 295.
Independent Contractor, employer not
generally liable for torts of, 479-480.
Independent Promises, 73; failure to
perform, 77.
Indorsees, position of inter se, 143,
163-164; rights of, 141, 142-143, 163-
164.
Indorsement, early history of, 141-143,
163-164 ; application of to bills of debt,
149; to bills of exchange, 135-136;
transfer by, 163 ; notes payable to order
transferable by, 171.
Industry, legal effects of its organization
on a capitalistic basis, 112-113.
Infancy, effect cf on criminal liability,
438-439-
Infant, capacity to contract, 51-52 ;
liability to pay for necessaries, 52 ;
incapacity to be made bankrupt, 237.
Inland Bills, 158, 171, 175 ; promissory
notes assimilated to by statute, 173 ;
Holt saw they differed from promissory
notes, 174.
Innkeepers, 449, 451, 452-453 ; duties of
enforced by action on the case, 89.
Innominate Contract, insurance re-
garded as an, 278.
Innuendo, the, 368-369.
Insanity, effect of on criminal liability,
439-441.
Instalments, payment by, 79.
Instrumenta ex Causa Cambii, 132,
136-137-
Insurance, 273-298 ; its place in modern
law, 273 ; definition of, 274 ; Marine
— origins, 274-283 ; Greek and Roman
law — stipulations as to risk, 274-275 ;
associations formed to guard against
risks, 275 ; thirteenth century contracts
— stipulations as to risk, 275-276 ; the
oldest contract of 276-277 ; modelled at
first on bottomry, 263, 277 ; later on
sale, 277-278 ; growth of insurance
business, 278 ; emerges as a distinct
contract, 278 ; its form, 279 ; rules re-
lating to it, 279-281 ; legislation as to
it, 281-283 ; introduction into and de-
velopment in England, 283-293 ; earliest
instances on records of the court of
Admiralty, 283 ; prevalence in sixteenth
century, 283-284 ; policies follow the j
continental model, 284-285 ; regulation j
by the Council, 285 ; monopoly right '
to register insurances, 286-287 ; tribunal
to try insurance cases, 287-288 ; why
not a succeis, 288; the statutory tri-
bunal, 289 ; its defects, 289-290 ; back-
ward state of the law, 290, 293 ; rules
evolved by the Admiralty, 290-291 ; by
the courts of common law, 291-292 ;
defects of common law procedure, 292-
293 ; Other Forms, 294-298 ; against
risks of land transport, 294; against
fire, 294; accident and life, 295-296;
against certain risks to the person, 296 ;
these insurances did not develop, 296-
297 ; known in England, 297 ; instances
of life policies and insurances against
personal risks, 297-298 ; premiums for
not obnoxious to the usury laws, 104 ;
disguised under other forms to evade
these laws, 106.
Insurance Policies, considered by the
merchants to be as negotiable as bills
of exchange, 175.
Insured, origin of the rule that he must
have an interest, 278, 292.
Insurer, why the goo^s were at his risk
and he could sue for them during the
voyage, 277 ; why entitled to any
property recovered, 278, 290 ; clauses
binding him to pay though the insured
had no interest, 279-280 ; liability in
case of capture and rescue, 280, 291-
292.
Insuring Safety, the duty of, 468-470 ;
how far the master of a ship is under
this duty to merchants and passengers,
251; and in respect of the goods
carried, 258-259.
Intent, malicious, how far needed in
libel, 342-345. 371-375 ; in conspiracy,
396 ; without an overt act is not criminal,
433-434-
Intention to Libel, when imputed, 370-
37i.
Intention, wrongful, when need to
ground civil liability, 447-448.
Invalidity of Contract, 49-70 ; absence
of consent, 50-51; duress, 51; undue
influence, 51 ; incapacity of parties,
51-55, see Infants, Married Women,
Drunken Persons, Lunatics; illegality,
53 ; severance of legal from illegal
stipulations, 53-54; stipulations net
clearly illegal, 54 ; illegality by common
and statute law, 54; public policy, 54-
56; restraint of trade, 56-62; impossi-
bility, 62-64; alteration cf contract
under seal, 64; statutory provisions,
65 ; void, voidable, and unenforceable,
65-66 ; why these distinctions have been
obscured, 67 ; fraud and misrepresenta-
tion, 67-70, see Fraud, Misrepresenta-
tion, Warranty.
Issue, banks of, 179.
INDEX
493
Italian States, money borrowed by,
106 ; legislation as to banking in, 1S0-
181.
J
Jeffreys, L.C., 341.
Jenks, h6.
Jessel, M.R., 56.
Jesuits, legislation as to, 412.
Jettison, consultation with crew before
a, 253, 264.
Jews, business as financiers, 177; legis-
lation as to, 413.
Joint Estate, of a fnm, how ad-
ministered in bankruptcy, 242-243.
Joint Stock Companies, see Companies.
Jones, J., 15.
Joyce, J., 417.
Judgment, action of debt on a, 98;
remedy for money paid under a void,
94.
Judicium rusticum, 268.
Jury, functions in trials for libel, 343-
345 ; in actions for libel, 373-375-
Jus accrescendi inter mercatores,
etc., 217.
Justification, the plea of, 375-376.
K
Kenny, Professor, 306, 321, 331, 381, 436,
44°, 445-
Kenyon, C.J., 76.
King's Bench, jurisdiction of as censor
morum, 407-408.
Laissez Faire, school of economists,
101 ; effect of on law of tort, 431.
Lamb, S., his ' Seasonable Observations,'
184, 189.
Land, liability for trespass on, 466-468.
Land Law, commercial law becomes a
rival to, 299.
Larceny, 304 ; the mens rea in, 437.
Lattes, 177.
Law, John, 212 ; his bank, 125.
Law Merchant, founded on foreign
doctrines, 99 ; chat acteris tics of in
England, 298-299; its effects on the
common law, 299-300.
Lawrence, J., 461.
Leases, grants of to evade prohibition of
usury, 105.
Lechmere, B., 86.
Lee, Professor, 44.
Lefort, 274.
Letters of Credit, 154.
Letters Patent and Close, suggested
origin of bills of exchange, 134-136.
Letters of Payment, 132, 136-137.
Levant Company, The, 209.
Levari Facias, the writ of, 230.
Leviations, made on shareholders by the
company, 204.
Liabilities, a bankrupt's, not discharged
by the bankruptcy, 240, 243.
Liability, the principles of, 433-482;
Criminal — 433-446 ; mens rea, 433-43S ;
infancy, 438-439 ; insanity, 439-441 ;
drunkenness, 441-443 ; coercion, 443-
444 ; compulsion, 444-445 ; necessity,
445 ; Civil — 446-482 ; the mediaeval
principle and its modifications, 446-447 ;
wrongful intent, 447-44S ; negligence —
unknown in the Middle Ages, 449-450 ;
introduction into the common law, 450-
452 ; its application to bailees, 452-453 ;
to persons not contractually related to
the plaintiff, 453 ; difficulty in applying
it to trespass, 453-455 ; how it was
applied, 455-458 ; contributory negli-
gence, 459-462 ; measure of damages
lor negligence, 462-464; liability for
wrongs to property, 465-468 ; cases
falling under the Fletcher v. Ry land's
rule, 468-472 ; see Employers' Liability,
Independent Contractor, Common Em-
ployment.
Libel, see Defamation ; origin of distinc-
tion from slander, 361-365.
Licensin j Act, The, 338, 340, 341.
Lien, of lenders on bottomry, 262 ; see
Maritime Litns.
Life Insurance, character of, 295 ;
hardly known in this period, 295-296 ;
beginnings of in hngland, '297-298.
Limitation, statutes of, promise to pay
a debt barred by, 26, 27, 31, 37, 39, 40 ;
their effect on contracts, 65, 66.
Limited Liability, 204-205.
Limited Partnership, 196-197.
Lindley, Lord, 397, 463.
Litigation, statements made in course
of privileged, 376.
Littleton, Edward, 409.
Lloyd's Coffee House, 293.
Loans, insurance contracts disguised as,
275-276; see Usury.
Loans to the State, connection of with
the history of banking, 179, 181, 18S,
189 ; influence of on growth of joint
stock principle, 207-208.
Lombard Lawyers, circumvention by of
the rule that choses in action are not as-
signable, 115-119.
London, ordinances as to usury, 102,
104 ; regulation of brokers in, 224 ;
Mayor's Court, thirteenth-century cases
as to bills of exchange, 130- 131, 132,
146, 152.
London Corresponding Society, The,
318.
494
INDEX
Lorenzen, Professor, 47.
Lost Bill, liability on a, 156.
Lucrum cessans, 103.
Lunatics, contractual capacity of, 52-
53-
Lushington, Sir Godfrey, 394.
Luther, his views on usury, 109.
Lyons, the lairs of, 129.
M
Macauley, Lord, 214.
Madox, 147.
Maintenance, 397-402 ; why it assumed
its modern form, 398 ; its criminal
aspect tends to disappear, 398-399 ;
essential features of, 399 ; how far the
rules of the tort and the crime are the
same, 399-400; need to prove damage,
400-401 ; effect of the success of the
maintained litigation, 401-402 ; effect
on development of law of, of the aboli-
tion of the Star Chamber, 361-364.
Maitland, 223.
Malice, how far essential in libel, 341-
345, 371-375 ; legal and actual, 374.
Malice Aforethought, 435-436.
Malicious Prosecution, 385-391 ; the
mediaeval remedies, 385 ; comparison of
the statutory writ for with the action on
the case, 385-386 ; conspiracies to indict
for treason, 386-387 ; for misdemeanour,
387 ; need for acquittal, 388-389 ; elimi-
nation of the element of conspiracy,
389-390 ; restatement of the law by
Holt, 390-391 ; relation to false im-
prisonment, 388.
Malicious Statements, action for, 352.
Malynes, his views as to the usury laws,
no, in; his description of a public
bank, 182-183 ; opposes the establish-
ment of such a bank in England, 187 ;
information as to brokers, 224 ; as to
factors, 226 ; account of Italian bank-
ruptcy laws, 230; of the commissioners
in bankruptcy, 238 ; of bills of lading,
256 ; as to freight on goods saved from
wreck, 260 ; as to insurances against
personal risks, 297-298 ; 127, 148, 149,
150, 152, 153, 154. 155. 167, 251, 252,
254, 255, 261, 288, 293.
Manning, Serjeant, 429.
Manorial Courts, jurisdiction of in
cases of defamation, 335.
Mansfield, Lord, his views on considera-
tion, 25, 26-31 ; their rejection, 35-38 ;
effect of this, 34, 38-42, 46-47 ; his views
were an intelligent anticipation of the
future, 47-48 ; his contribution to the
law of quasi-contract, 97 ; 168, 171, 293,
320, 344, 414, 445, 453.
Mansfield, C.J., 33, 36, 365, 366.
Manslaughter, 303 ; the mens rea in,
436-437-
Manwood, C.B., 7.
March, 355.
Maritime Law, 245-273 ; see Ships,
Master, Crew, Carriage, Bills of Lad-
ing, Bottomry, General Average, Col-
lision, Salvage, Maritime Liens.
Maritime Liens, 270-273 ; definition of,
270 ; how they arise, 270-271 ; com-
pared with common law liens, 271 ;
origins, 271-273.
Marius, his information as to bills of
exchange, 155-157-
Markby, his criticisms of the doctrine of
consideration, 46.
Marowe, 326, 434.
Marquahdus, his views on usury, in ;
on banking, 182 ; 142, 181.
Married Women, their contractual in-
capacity, 51.
Marsden, 268, 272.
Martin, B., 31.
Master, liability of for servant's acts,
see Employers' Liability.
Master, The, of a ship, powers of, 248-
249 ; comparison with the common law
rules of agency, 249-250 ; liability to
passengers and merchants for the torts
of the crew, 250-251 ; liability of owner
for his torts, 251-252 ; effect of these
doctrines on the common law, 252-253 ;
relation to the crew, 253-254.
Master and Servant, see Principal and
Agent.
Master's Mate, The, 248.
McCardie, J., 395, 456.
Melancthon, views as to usury, log.
Mens Rea, the basis of criminal liability,
433-435 ! its nature in different crimes,
435-437 ! see Infancy, Insanity, Drunk-
enness.
Mercantile Law, Lord Mansfield's use
of the doctrines of, 29-30.
Merchant Adventurers, The, 199.
Merchants, their legal relation to ship-
owners, 258-260 ; their regulation of
insurances, 285.
Merchants of Andalusia, Company of,
200.
Mesne Process, 231.
Middleburg, bank of, 181.
Mineral and Battery Works, the
society of, 208, 216.
Mines Royal, the company of, 194, 208,
216.
Ministerial Responsibility, 443.
MlSADVENTUREK304.
Misdemeanours, growth of, 301-302,
305 ; conspiracies to indict for, 387.
Misprision, 322-323 ; of treason, 323-324 ;
statutory offence of, 324 ; of felony,
323.
INDEX
495
land, 149-152 ; origins of bills of ex-
change— abroad, 126-146, in England,
mercantile practice, 152-159, English
law as to, 159-170, see Bills of Ex-
change; promissory notes, 170-176; see
Negotiability, Promissory Notes; the
gift of a for a lesser sum than that due
under a contract a good discharge, 85 ;
why bills of lading are not, 257.
Negotiability, the essentials of, 1 13-114 ;
the juridical bases of, 145-146; why
impossible in early law, 115; partial
removal of these difficulties — abroad,
115-119, in England, 147-151; develop-
ment of these devices, 120-124; wny
they failed to develop the modern
qualities of, 124-125, 150-151, 170-172 ;
development of in connection with bills
of exchange — abroad, 140-145, in Eng-
land, 157-158, 163-168 ; effect of the
statute as to promissory notes, 176.
distinguished from consideration, I Nevil, J., 86.
New England Company, the, 209.
Misrepresentation, originally no reme-
dy for non-fraudulent, 67, 68; law
developed through the rules as to im-
plied warranties, 69-70, 78.
Missibilia, 116.
Mistake, remedy for money paid by, 94.
Mitior Sensus, The, 335, 355-356, 366.
Molloy, 226.
Monarchy, a public bank said to be
incompatible with, 186-187.
Money Changers, The, the earliest
bankers, 177, 178.
Monopoly, illegality of, 60 ; contracts
creating a, 61.
MONTES PlETATIS, Io6, l8o.
Moral Obligation, confusion with con-
sideration, 3, 17 ; Mansfield's use of
this idea, 26-29 ; prevalence of his
views, 30-33 ; their rejection, 36-38 ;
effects of this, 34, 45.
Motive, confused with consideration, 32
33i
38.
Murder, 303-304 ; the mens rea in, 435-
436.
Mutual Promises, a consideration for
New Mills Company, the, 206.
New River Company, the, 202.
Newcome, Thomas, 184.
Non est factum, plea of, 65-66.
Non-
each other, g.
Mutuum, evasion of its gratuitous char- 1 Non-conformity, see Religious
acter by stipulations as to risk, 275. conformity.
! North, L.K., 25, 242.
Notaries, why employed to draw up
N
National Debt, The, 135-136.
National Debts, taken over by banks in
Italy, 181 ; this is the origin of the
Bank of England, 188.
Natural Law, Lord Mansfield's appeals j Noxal Liability, 272
to, 27; theory that it demanded the j Nude Pacts, 29, 30, 42.
insurance contracts, 279.
Novatio the, 132, 133.
Novation, not possible in the Middle
Ages, 85-86 ; when it became possible,
86 ; development of the law as to, 86-
87.
Nuisance, what is a, 425-426 ; public —
when redressible by an action in tort,
363, 424-425 ; liability for, 471.
Nuncius, promise to pay to a creditor or
a, 116-118, 119-121.
enforceability of agreements, 36, 43
Necessaries, nature of the infant's
liability for, 52.
Necessity, how far a defence to a
criminal charge, 445 ; how far a defence
to an action for trespass, 455-456, 458.
Negligence, unknown in mediaeval law,
449-450 ; how introduced into English
law, 450-451; application of to con-
tractual and quasi-contractual relations,
451-452; to bailees, 452-453 ; to other Obscene Writings, 333, 337.
relations, 453 ; to trespass, 453-458 ; Office, action for imputation of unfitness
measure of damages for, see Damages ; \ for, 349-350, 355.
effect of in executing a deed, 50-51 ; see | Office of Assurances, 286-287, 289,
Contributory Negligence. 289-290, 293.
Negotiable Instruments, bills of ex- j Officium Roba^ie, 275.
change the earliest form of, 114 ; origins 1 Oleron, the laws of, 253, 260, 263.
— early documents promising payment j Original Contract, use made of by
to creditor's nominee or producer off Blackstone to explain the scope of
document, 115-119; development of; indebitatus assumpsit, 96.
law as to these documents — abroad, 119- j Outland Bills, 158, 171.
124, in England, 147-149 ; loss of their Overt Acts, proving treason, 309, 311,
negotiable character, 124-125; shifts of 312, 314, 315, 316, 327-328; needed to
the merchants — abroad, 125-126, in Eng- expose to criminal liability, 433.
496
INDEX
Owner of a Ship, liability on the master's
contracts, 249-250; for torts of the
master and crew, 250, 251-252.
Parette, Stephan, 183.
Park, 263.
Parke, B., 33, 37, 55, 461.
Parker, C.J. and L.C., 27, 60, 62, 74,
374, 389. 391-
Parker, Lord, 418.
Parlement of Paris, decrees of as to
instruments drawn payable to bearer or
in blank, 125-126.
Parliamentary Proceedings, state
ments made in course of privileged,
376.
Partners, agents for each other, 217;
joint and separate estate of, 217, 242-
243-
Partnership, primitive and non com-
mercial, 195 ; mediaeval and com-
mercial, 195-199; firm not a distinct
person, 198 ; large partnerships become
companies, 208-209; not clearly dis-
tinguished from a company, 215 ; no
survivorship, 217 ; other rules applicable
to, 217 218; beginnings of equitable
jurisdiction as to, 217-218 ; see Com-
mcnda, Socictas, Limited Partnership.
Passengers, 248, 250.
Past Consideration, not valid, 14; dis-
tinguished from executed consideration,
14-15 ; confusion between them caused
by method of statement, 15 ; services
done on request a valid consideration,
16-17 5 extension of this idea, 25-26,
31-33 ; settlement of modern doctrine,
37. 38-40-
Payee, of a bill of exchange, relation to
acceptor, 138-139, 162; relation to
drawer, 139-140, 162-163 ; position of,
140.
Payment, rules as to, 79 ; remedy when
money was not due, 94 ; by cheque or
bank note, 191-192.
Pecunia Trajectitia, relation of to
bottomry, 261-262 ; relation to the con-
tract of insurance, 275.
Pepys, 187.
Performance, of a contract, how far a
consideration for a promise by a third
person, 23-24, 41 ; in discharge of a
contract, 78-79.
Periam, J. and C.B., 15.
Perils of the Sea, 291.
Permutatio, 126.
Personal Risks, early insurances against,
296 ; their prohibition, 296 ; disguised
as sales, 296-297 ; known in England,
297-298.
Peruzzi, The, 178, 207.
Petilodeminage, 255.
Phillimore, Lord, 401.
Pilotage, 255.
Pleading, Rules of 1834; tneir effect
on the settlement of doctrine of con-
sideration, 38.
Plowden, 303.
Police System, effect of inadequacy of
on criminal law, 331-332.
Policies, benefits of assignable, 291 ;
modelled on Italian forms, 284-285 ;
see Insurance Policies.
Policy, origin of the word as applied to
insurance, 277.
Pollock, C.B., 37.
Pollock, Sir F., 34, 39, 46, 66, 335, 354,
358, 395, 428, 45°, 467, 468, 479-
POPHAM, C.J., 252.
Post-Glossators, The, 133.
POTHIER, 43.
Powell, J., 86.
Powys, B., 86.
Premium, in insurance contracts, 275,
276, 277; when recoverable, 281, 292.
Presentment for Acceptance, 156.
Press, rules as to the licensing of the,
338, 34i-
Presumptions, in favour of the payee of
a bill of exchange, 143-144, 165-167.
Primage, 255.
Principal and Agent, why classed as
part of the law of Master and Servant,
227 ; see Agency.
Prisoners for Debt, legislation as to,
234-236.
Privilege, the defence of, 372, 375, 376-
377-
Process, malicious abuse of, 388.
Procurator, in rem suam, 132.
Producer, of a document, promises to
pay the, 116, 121-124.
Profession, action for imputation of
unfitness for, 349, 355.
Promissory Notes, early continental
documents, 115-119; loss of their
negotiable characteristics, 119-126;
similar documents in England, 147-
151; tendency to assimilate them to
bills of exchange, 170-172; stopped by
Holt's decisions, 172-173 ; reasons for
them, 173-176; declared by statute to
be negotiable, 176 ; the effects of this
controversy, 176, 299-300.
Promoters of companies, 214-215.
Prosecution, forbearance to, how far a
consideration, 18-19; malicious, see
Malicious Prosecution.
Protest, of a bill of exchange, rules as
to, 138, 156, 171, 174.
Public Policy, relation to law of con-
tract, 54-56 ; legitimate and illegitimate
use of the conception of, 383 ; analo-
INDEX
497
gous use of the concept of conspiracy,
384 ; the justification of the doctrine of
employers' liability, 250, 252-253, 478-
479-
Publication, in relation to defamation,
339, 357. 37i.
Quakers, 411.
Qualified Privilege, 377.
Quantum Meruit, assumpsit on a, 52 ;
when an action on will lie, 76.
Quasi Contract, how shaped by medi-
aeval actions of debt and account, 88 ;
developed by indebitatus assumpsit,
88-89 ; origins of the modern law, 89,
97-98 ; growth of sphere of indebitatus
assumpsit, 8g-g2; Holt's opposition,
go-91 ; extension to remedy cases of
unjust enrichment, 93-94 ; payments
when money is not due, 94 ; wrongful
taking of money, 94-96 ; confusion of
the law in Blackstone's day, 96 ; Lord
Mansfield's contribution to the modern
law, 96 97 ; infant's liability to pay for
necessaries is based on, 52.
Quasi-delicts, Roman law as to, 250,
252.
Quasi-torts, why no such category is
recognized in English law, 89.
Quid Pro Quo, acquires technical mean-
ing in relation to action of debt, 4, 6 ;
analogies from, influences doctrine of
consideration, 7 ; origin of idea that
benefit to promisor is an essential
element in consideration, 10-11, 13 ;
agreement a sufficient in the case of
sale of goods, 14 ; payment of less than
is due is not a sufficient for a release,
20 ; doing another act may be, 21-22 ;
French analogies, 43 ; influence of on
rules as to the enforcement of contracts,
71-72.
K
Rafael de Turri, 142.
Rastell's Entries, 159.
Ratification, 233.
Raymond, Lord, 91, 344, 345, 408.
Reasonableness, the test of the validity
of contracts in restraint of trade, 59, 60,
61, 62.
Reassurance, 291.
Rede, J., 465.
Reformation, character of the English,
403.
Refusal to perform a contract, 78.
Registration of Insurances, monopoly
right of, 286-287.
Regrators, 57.
Regulated Companies, see Companies.
Religious Noncomformity, legal doc-
trines resulting from laws against, 402-
420; summary of development of the
law, 402-405 ; law of the seventeenth
and eighteenth ceuturies, 406-410; re-
peal of legislation against, 410-414 ;
effect of this on legal doctrine, 414-417 ;
effect of new doctrine on the interpreta-
tion of older legislation, 417-418 ; trend
of the law, 418-419; its future, 419-
420.
Religious Orders, legislation as to, 412,
417.
Rent Charges, creation of to evade
usury laws, 105.
Repetition of a slander, liability for,
357-
Representation, originally not allowed
in litigation, 115; how this prohibition
was evaded, 116-117.
Reputed Ownership, rule as to in
bankruptcy, 240.
Respondentia, see Bottomry.
Restraint of Princes, 291.
Restraint of Trade, 56-62, see Trade.
Revolution (1688), promotes greater
freedom of trade, 59-60.
Rhodes, J., 15.
Rhodian Law, the, 264.
Riot, how distinguished from a levying
of war, 319-321, 322, 328 ; Brooke's
definition of, 324 ; nature of the offence,
325 ; sixteenth century legislation as
to, 327 ; liability of rioters, 329-330 ;
duties of citizens in regard to, 330-331 ;
see Riot Act.
Riot Act, the, 320, 328-329, 330, 331.
Rioters, liability of, 329-330.
Risks, specified in contracts of insurance,
280.
Robbery, 304.
Rokeby, J., 91, 425.
Rolf, 85.
Rolle, C.J., 13, 72, 297, 355, 372, 428,
429.
Roman Catholics, plots of, effect on law
of treason, 310 ; legislation as to, 411,
412.
Roman Law, as to nude pacts, 3 ; as to
discharge of contracts, 20-21, 80; as
to causa, 42, 43 ; as to contracts of
lunatics, 53 ; as to novation, 85 ; as to
symbolical delivery, 118 ; influence on
older instruments payable to order or
bearer, 121 124 ; procedure of compared
with Germanic procedure, 122 ; bills
of exchange not known to, 132-133 ;
influence of rules as to quasi-delicts on
maritime law, 250, 252; stipulations as
to risk in, in contracts of carriage, 274-
275; as to defamation, 333-334, 366;
VOL. VIII.— 32
498
INDEX
contributory negligence in, 459 ; influ-
ence of on doctrine of employers'
liability, 475-476.
Roman-Dutch Law, causa in, 43, 44,
45-
Romilly, Lord, 417.
Rotterdam, bank of, 181.
Rout, definition of a, 324.
Royal African Company, the, 209.
Russia Company, the, 209, 210.
St. George, bank of, 181.
St. Germain, 5, 14.
Sale, contract of enforced by action of
debt, 14 ; insurance contracts disguised
as a, 275-276, 277 ; effects of this, 277-
278.
Sale of Goods, warranties in connection
with, 68-69, 7° ! growth of idea of fraud
in connection with, 68-6g ; no need to
show performance to recover on a con-
tract for, 72.
Salman, the, 222.
Salvage, 269-270 ; actions for, 270.
Salvors, rights of in the court of Admir-
alty, 269-270 ; at common law, 270.
Scaccia, 136, 142, 143, 198.
scandalum magnatum, 335, 34o, 376.
SCHUTE, J., 389.
Scienter Rule, the, 451, 457, 465,
469.
Scotch Law, English law of contract
might have been assimilated to if Lord
Mansfield's views had prevailed, 34 ;
the firm a legal person in, 198.
Scott, Dr., 193, 211, 213, 221.
SCRIPTA OBLIGATORIA, Il6.
Scriveners, connection of with banking
business, 185.
Scroggs, C.J., 12, 340, 343.
SCRUTTON, L.J., 395.
Seal, contract under, effect of in discharg-
ing a contract, 80-81 ; bills of exchange
said to be in the nature of, 168, 175.
Sedition, relation of to religious non-
conformity, 407, 408-409, 419-420.
Seditious Words, 339-340.
Seditious Writings, 333, 338-341 ; the
seditious intent, 341-342 ; functions of
the jury in relation to, 342-345.
Seduction, the remedy for, 428-429.
Selborne, L.C., 40.
Self Defence, 304.
Selwyn, 32.
Separate Estate of a firm, administra-
tion of in bankruptcy, 242-243.
Servants, threatened violence to, 423 ;
remedy for abduction of, 429.
Severance of legal from illegal stipula-
tions in a contract, 53-54.
Shareholders, liability to creditors, 203-
204 ; to the company, 204 ; limitation
of their liability, 204-205.
Shares, transferable, 203, 207, 208, 220,
221 ; dealings in, 214 ; misdeeds of
dealers in, 214.
Shaw, C.J., 478, 481.
Sheriffs, liability of for acts of their
subordinates, 474, 475, 477.
Ship, presumption of the loss of a, 280,
291.
Ship's Boy, the, 248.
Ship's Register, 255.
Shipowners, liability to merchants, 258 ;
how far insurers, 258-259 ; right to
freight, 259-260 ; right to have a cargo
provided, 260; right to withhold de-
livery till payment of freight, 260.
Ships, modes of acquisition, 246; de-
claration of title to, 246 ; liens on, 246-
247 ; co-ownership of, 247 ; disputes
between co-owners, 247-248 ; arrest of,
247 ; process of arrest and maritime
liens, 272-273, see Maritime Liens.
Shipwright, The, 248.
Shower, Sir Bartholomew, 91, 257.
Si actio, when a proper mode of pleading,
65-66.
Simple Contract, operation of in dis-
charging a contract, 81-85 5 no effect on
a contract under seal, 81 ; modification
of this rule, 82 ; executed and executory
contracts, 82-83 ; see Accord and Satis-
faction.
Skynner, C.B., 36.
Slander, see Defamation ; origin of, dis-
tinction from libel, 361-365.
Slander of Title, 351-352.
Smith, Adam, 180.
Smiths, 449, 451.
Societas, the, how it differed from
Commenda, 197 ; relation of the part-
ners, 197-198 ; its collective name,
198 ; in some countries a legal person,
198 ; influence on development of
English law, 198-199 ; like a corporation,
207 ; developed by state needs, 207-
208.
Societe en Commandite, 196.
Somers Islands Company, the, 209.
South Sea Company, the, 210 ; pro-
posal to take over the national debt,
212-213,218-219; its failure, 216 ; the
ensuing panic, 219.
Special Assumpsit, when it lay, 76.
Stakeholder, remedy of winner to re-
cover from a, 94.
Star Chamber, its influence on the law
of crime and tort, 302, 305-306 ; its
influence on defamation, 336, 338-339.
340, 342, 361-362 ; legal problems arising
after its abolition, 361-364 ; its treat-
ment of conspiracy, 379, 380, 382, 385,
INDEX
499
393 ; its influence on maintenance,
398; its jurisdiction as censor morum,
407.
Starkie, 415.
Statute, operation of a, which makes a
contract illegal, 54.
Statute Merchant, arrest of debtors by,
231.
Stbersman, the, 248.
Stephen, J., 310, 318, 320, 322, 337, 340,
341. 344. 4IO» 4I5. 4l6. 4l8» 441. 442»
444. 445-
Stock Brokers, 214.
Stock Exchange, growth of a, 214.
Stoppage in Transitu, 243, 257.
Stowell, Lord, 266.
Straccha, 279, 296.
Street, Mr., 5, 70, 84, 161, 165, 423,
453-
Subrogation, how used by the creditors
of a company, 204.
Sue and Labour Clause, 284, 290.
Suicide, 304.
Sumner, Lord, 39, 419, 461.
Superstitious Uses, 412-413, 417-418.
Surgeons, 449.
Survivorship, excluded as between part-
ners, 217.
Sword Blade Company, the, 215-216.
Symbolic Delivery, 118-119.
Taking, when remediable by indebitatus
assumpsit, 95-96.
Ta VERNE RS, 449.
Tawney, Mr., in.
Tenants, threatened violence to, 423.
Tender, 79-S0.
Tenterden, Lord, 37, see Abbott.
Termes de la Ley, 6.
Thorpe, C.J., 423.
Time Bargains, 214.
Time Policies, 280.
Tindal, C.J., 19.
Toleration Act, the, 405, 410, 411.
Tort, encroachments on by criminal
law, 302 ; developments in law of, 305 ;
effect on of combination of Star Chamber
and common law doctrines, 306; ex-
ternal influences, 306-307 ; growth of
the substantive law of, 432 ; how dis
tinguished from crime, 306.
Trade, contracts in restraint of, 56-62 ;
the mediaeval law, 56-57 ; law of the
sixteenth century, 57-58 ; of the seven-
teenth century, 58-59 ; change of ideas
at the Revolution, 59 ; restatement of
the law by Parker, C.J., 60-62; the
modern cases, 62.
Trade, how promoted by banking, 178-
179 ; organization of the object of early
charters to companies 200-202, 2og;
action for imputation of unfitness for,
349-
Trade Disputes, 392.
Trade Mark, counterfeiting a, 430.
Traders, bankruptcy acts confined to,
237. 241.
Transport, insurances against risks of,
294.
Treason, 307-322 ; adherence to the
king's enemies, 307-308 ; compassing
the king's death — the gist of the offence,
309 ; mediaeval interpretations, 309 ;
legislative extensions, 309-310 ; why
constructive extension became possible,
310-3 11; proof of the intent to kill, 311-
312 ; extensions made in early seven-
teenth century, 312-314 ; development
in latter half of the century, 314-316 ;
after the Revolution, 316-318; levying
war — conspiracy to levy war, 318-319;
distinction between levying war and
riot, 319-320, 328; the law after the
Revolution, 320-321 ; Edward III.'s
statute of, 307, 312, 321-322; the
statutes of 1795 and 1848, 321-322 ;
change in the conception of, 322 ; con-
spiracy to indict for, 386-387 ; mis-
prision of, see Misprision of Treason.
Treason-Felony, 321.
Treby, C.J.,86, 91.
Trespass, encroachment on by statutory
misdemeanours, 301-302 ; application
of the idea of negligence to 453-458,
465-466 ; limits of its application, 466-
468 ; to land or goods, liability for,
465-468.
Trinity, impugning the doctrine of the,
411.
Trusts, for anti-Christian purposes,
legality of, 409, 411-412, 414, 416.
Truth, no defence to an indictment for
libel, 339.
Twelve Tables, the, rules as to de-
famation in, 335.
Twisden, J., 54.
U
Underwriting, 278.
Undue Influence, 51.
Unenforceable, how distinct from void
and voidable, 65-66.
Unitarians, 411-412.
Unjust Enrichment, use of indebitatus
assumpsit to remedy, 92-96 ; see Quasi
Contracts.
Unlawful Assembly, definition of, 324 ;
nature of the offence, 325-326 ; evolu-
tion of the law as to, 326-327, 329 ;
duties of citizens in respect to, 330-
331.
500
INDEX
Uses, doctrine of consideration in connec-
tion with, 5, 6.
Usury, 100-113; reason for usury laws,
112-113; mediaeval attitude to, 101 ;
mediaeval law as to, 101-103; modifi-
cation of the prohibition of, 103-106;
why it was not wholly abolished, 106-
107 ; the fifteenth and sixteenth cen-
tury statutes, 107- 1 10; characteristics
of the compromise reached, no;
economic feeling in favour of greater
liberty, in ; relief given by equity and
the Council, in ; later legislation, 111-
112; history of points to a new com-
mercial organization, 112-113; use of
cambium fictivum to evade the prohibi-
tion of, 127; insurance contracts dis-
guised as sales for the same reason,
274.
Valentine, 339.
Valery, his suggested origin of bills ot
exchange, 134, 135 ; on the origins of
insurance, 275.
Valuable Consideration, 5.
Value, presumption that the acceptor
of a bill has received, 143, 167.
Valued Policy, 293.
Vaughan, C.J., 72.
Vaughan-Williams, L.J., 463.
Venditio Bonorum, adoption of Roman
system of by the Italian cities, 229-
230.
Vendor's Lien, in case of purchaser's
bankruptcy, 243.
Venice, bank of, 177, 180, 181 ; con-
trasted with the Bank of England, 188.
Venue, difficulties caused by the rules of,
308.
Verbal Acceptance, of a bill, 156, 157.
Vinogradoff, Sir Paul, 42.
Vintners, 449.
Virginia Company, the, 209.
Void, Voidable and Unenforceable,
the distinction between, 51, 65-66.
Void Contract, promise to pay a debt
due under a, 31-32, 36-37.
Voidable Contract, promise to pay a
debt due under a, 26, 27, 31, 37.
Voluntary Conveyances, a bankrupt's
can be set aside, 240.
Voyage Policies, 280.
W
Wagering Contracts, 56.
Wagers, disguised as insurances, 280;
prohibited at Genoa, 281 ; no legislation
as to such insurances in England, 293 ;
insurances against personal risks used
as a disguise for, 296.
Walcot, J., 473.
Walmesley, J., 389.
Walsingham, 286.
Ward, C.B., 86.
Wardship, feudal, influence of on law as
to wrongs to domestic relations, 427-
428.
Warranty, breach of express enforced by
action of deceit, 68, 77 ; application of
this idea to contracts of sale of goods,
68-69 ? implied warranties, 69-70 ; basis
of the liability on, 69-70 ; in eighteenth
century remedied by action on the
contract, 70 ; effect of this, 70 ; of title
and quality, 70 ; effect of the breach of
a» 77. 78 ; ex post facto, 77.
Welwod, 248, 250, 251, 252, 264, 267.
Wife, how far coercion by husband is a
defence to a criminal charge, 443-444.
Wigmore, Professor, 477.
Wild Animals, liability for damage done
by, 469-470 ; for their trespasses, 470.
Wilde, B., 37, 41.
Willes, J., 380, 381.
Williams, Serjeant, 73.
Wilmot, C.J., 32, 45, 54.
Wilson, his views on usury, no; his
account of cambium siccum, 127.
Winfield, Dr., 387.
Winnington, Sir Francis, 343.
WlTHINS, J., 473.
Words, when an overt act of treason, 309,
312, 312-313, 314, 315-316, 316-317;
action on the case for, 335, 346-361, 364,
see Defamation.
Workmen's Compensation Act, the, 482.
Wray, C.J., 38g.
Wrecked Goods, the right to, 269.
Wrenbury, Lord, 418.
Writ of Conspiracy, the, 385, 386, 388.
Writings, when an overt act of treason,
312, 313, 3^-^5> 316-317.
Wylde, J., 453.
York Buildings Company, the, 215,
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