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The Law Merchant and the Common Law Before 1700

Published online by Cambridge University Press:  16 January 2009

J. H. Baker
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In 1845 a master of English commercial law wrote that there was “no part of the history of English law more obscure than that connected with the maxim that the law merchant is part of the law of the land.” Since then there have been detailed studies of the medieval law merchant and of the later development of English mercantile law, but the precise status of the law merchant in England and the nature of the process by which it supposedly became fused with the common law remain as obscure as they were in 1845. The obscurity begins with the very concept of the “law merchant,” which has been differently understood by different writers and continues to be used in widely divergent senses. Some have regarded it as a distinct and independent system of legal doctrine, akin in status to Civil or Canon law, and perhaps derived from Roman law. Others have supposed it to be a particular aspect of natural law, or the universal ius gentium, and as such akin to international law.

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The Cambridge Law Journal , Volume 38 , Issue 2 , November 1979 , pp. 295 - 322
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Copyright © Cambridge Law Journal and Contributors 1979

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References

1 C. Blackburn, The Contract of Sale (1845), p. 207; 2nd ed. (1885), p. 317.

2 E.g. T. E. Scrutton, Elements of Mercantile Law (1891), pp. 4–16 (reprinted as “A General Survey of the History of the Law Merchant” in 3 Sel.Ess.Anglo-Amer.Leg.Hist. 7–15); Carter, A. T., “The Early History of the Law Merchant in England” (1901) 17 L.Q.R. 232–251Google Scholar; Holdsworth, W. S., History of English Law, Vol. I [1903], 1956 ed., pp. 526–544Google Scholar; Mitchell, W., An Essay on the Early History of the Law Merchant (Cambridge 1904)Google Scholar; Street, T. A., Foundations of Legal Liability (Northport 1908), Vol. II, pp. 363–392Google Scholar; Gross, C. and Hall, H., Select Cases concerning the Law Merchant (1908–32)Google Scholar, 23, 46 and 49 Selden Soc.; Bewes, W. A., The Romance of the Law Merchant (1923)Google Scholar; Holden, J. M., The History of Negotiable Instruments in English Law (1955)Google Scholar; Plucknett, T. F. T., Concise History of the Common Law, 5th ed. (1956), pp. 657–670.Google Scholar The best account of the early development of mercantile instruments is still Postan, M. M., Medieval Trade and Finance (1973), Chap. II (first published in 1930); for others see Holden, op. cit., p. 2.Google Scholar

3 See Burdick, F. M., “What is the Law Merchant?” (1902) 2 Columbia Law Review 470–485CrossRefGoogle Scholar (reprinted as “Contributions of the Law Merchant to the Common Law” in 3 Sel.Ess.Anglo-Amer.Leg.Hist. 34–50).

4 See T. E. Scrutton, The Influence of Roman Law on the Law of England (Cambridge 1885), pp. 177–186 (reprinted in 1 Sel.Ess.Anglo-Amer.Leg.Hist. 237–246). Carter, op. cit., p. 240, says: “Possibly the law merchant was the channel through which the Roman law chiefly affected our law.” And Sir Carleton Allen said the law merchant was “profoundly affected” by Law, Roman: Law in the Making, 7th ed. (Oxford 1964), p. 274.Google Scholar Mitchell, op. cit., pp. 160–161, is guilty of equivocation on this: “Roman law was, in the main, the basis of the Law Merchant … But great as was the influence of Roman law, the customs and usages of the merchant himself remained the decisive factor … Roman law was the raw material of the Law Merchant, but that material the medieval merchant fashioned and framed as seemed good to him.” (This assumes a rather surprising degree of legal erudition on the part of the medieval merchant.)

5 This was a popular view in the seventeenth century: see Sir John Davies († 1626), quoted on p. 316 below; and the writings of Dr. Zouch, cited by Scrutton, 1 Sel.Ess.Anglo-Amer.Leg.Hist. 238–239. See also 1 Bl.Comm. 273. The doctrine has been revived by Berman, H. J. and Kaufman, C., “The Law of International Commercial Transactions (Lex Mercatoria)” (1978) 19 Harvard International Law Journal 221, 224–229.Google Scholar

6 1 Bl.Comm. 75.

7 G. Malynes, Lex Mercatoria (1622), which is not a law book but a compendium of current practice compiled by a merchant. For a judicial statement of the fourth view, see Goodwin v. Robarts (1875) L.R. 10 Ex. 337, 346, per Cockburn C.J., which is adopted in Halsbury's Laws of England, Vol. XII, 4th ed. (1975), p. 38Google Scholar, §460. Postan, op. cit., p. 61, says “everything which entered into the everyday practice of merchandise and was indispensable for the efficient conduct of trade was, eo ipso, part and parcel of merchant custom and thereby sanctioned by Law Merchant.” See also Mitchell, quoted in note 4, above: and Sutherland, L. S.. “The Law Merchant in England in the 17th and 18th Centuries” (1934) 17 T.R.H.S. (4th Ser.) 149–176.Google Scholar

8 Holden, op. cit., Chaps. II–III, esp. pp. 27–36.

9 Ibid., p. 114. See also, to the same effect, Scrutton, 3 Sel.Ess.Anglo-Amer.Leg.Hist. 13; Holdsworth, op. cit., p. 572.

10 Heward, E., “Lord Mansfield's Notebooks” (1976) 92 L.Q.R. 438–455.Google Scholar

11 Kiralfy, A. K. R., The Action on the Case (1951), p. 169Google Scholar, says of the incorporation of the law merchant: “This is a substantive field of research which has been covered by Sir William Holdsworth and others and requires no further study before 1700.” Against this somewhat dire warning, we may claim the support of two earlier American writers who dared to question conventional wisdom on the law merchant for reasons similar to those advanced here, but who did not pursue the matter in historical detail: Dr. Hoffman, cited in J. Reddie, An Historical View of the Law of Maritime Commerce (Edinburgh 1841), pp. 427–428; Ewart, J. S., An Exposition of the Principles of Estoppel by Representation (Chicago 1900), p. 373.Google Scholar See also Sutherland, note 7 above.

12 Holden, op. cit., p. 31.

13 Anon. (1668) Hard. 485, discussed on p. 314, below.

14 Holden seems to admit this (op. cit., p. 33, n. 5) when he adds the gloss, “surely this is what it amounts to? The courts declared the law merchant to be part of the ‘law of the land’, i.e., the common law. That it was not so, but was a separate body of doctrine with rules of its own is obvious …” (It is not obvious to the present writer.)

15 Halsbury's Laws of England, Vol. XII, 4th ed. (1975), p. 49, §479.Google Scholar

16 See Teheran-Europe Co. Ltd. v. S. T. Belton (Tractors) Ltd. [1968] 2 Q.B. 545Google Scholar, 553, 558, where the Court of Appeal decided to disregard a usage which had been judicially noticed by Blackburn J., apparently on his own initiative. The “law merchant,” on the other hand, cannot be extended or overridden by usage: Edie v. East India Co. (1760) 2 Burr. 1216; Crouch v. Credit Foncier of England (1873) L.R. 8 Q.B. 374, 386–387.

17 Halsbury's Laws of England, Vol. XII, 4th ed. (1975), p. 4Google Scholar, §405. Cf. the confusing assertion in Salt, H. E., “The Local Ambit of a Custom,” Cambridge Legal Essays, ed. by Winfield, and McNair, (Cambridge 1926), p. 279Google Scholar, at p. 280, n. 3 (“a confused analogy to immemorial particular custom probably underlay the contention that the modern custom of merchants, as opposed to the ancient law merchant, could not be judicially noticed and adopted into the Common Law as a source of new rights. Of course, neither of these was required to be immemorial in the technical sense.”)

18 Clarke v. Martin (1702) 2 Ld.Raym. 757, 758 (“it amounted to the setting up of 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”). For an anthology of strong attacks on this judgment (concerning promissory notes), see Holden, op. cit., pp. 80–81.

19 Note to 1 Bl.Comm. 75, ed. by E. Christian (1800). He concluded, “Merchants ought to take their law from the courts, and not the courts from the merchants.”

20 See F. W. Maitland, Select Pleas in Manorial Courts (1889) 2 Selden Soc. 132–134; Holdsworth, op. cit., p. 543.

21 The Carrier's Case (1473) Y.B.Pas. 13 Edw. IV, 9, pl. 5; 64 Selden Soc. 30, 32.

22 Lex Mercatoria [c. 1280?] printed in The Little Red Book of Bristol, ed. by Bickley, F. B. (Bristol 1900), Vol. I, pp. 57, 58.Google Scholar The date is that suggested by Richardson, H. G., 37 English Historical ReviewGoogle Scholar 243 (cf. 17 English Historical Review 356).

23 Y.B. 20 & 21 Edw. I (Rolls Series), 68; 21 & 22 Edw. I (Rolls Series), 74, 458; Gren v. Berewyk (1311) Hill. 4 Edw. II (26 Selden Soc.), 127; Bandon's Case (1313) 27 Selden Soc. 48, 46 Selden Soc. xxv, lxxxi–lxxxv; Anon. (1313) Mich. 7 Edw. II (39 Selden Soc.), 14; Aubrey v. Flory (1321) Eyre of London, 86 Selden Soc. 235, 243; Fleta, lib. ii, Chap. LXI (72 Selden Soc. 203); Fortescue, J., De Laudibus Legum Anglie, ed. by S., Chrimes (Cambridge 1949), pp. 74–77.Google Scholar

24 See G. O. Sayles, 76 Selden Soc. xcvi.

25 E.g. Dunstable v. Le Bal (1278) 46 Selden Soc. 28 (justices at Winchester commanded to administer swift justice secundum legem mercatoriam); Honesti v. Gerardin (1291) Ibid. 53 (Exchequer writ ordering an account secundum consuetudinem scaccarii et secundum legem mercatoriam); Bosyis v. Merewell (1292) 57 Selden Soc. 70, 58 Selden Soc. cix, 76 Selden Soc. xcvi (error in King's Bench from justices at Winchester, ordered to do justice secundum legem mercatoriam); Bandon's Case (1313) 27 Selden Soc. 48, 46 Selden Soc. xxv, lxxxi, sub nom. Comberton's Case, Ibid.. lxxxiv (iusticies to recover a debt “sicut J. secundum legem mercatoriam rationabiliter monstrare poterit quod ei reddere debeat”; removed into the Bench and from thence in eyre); Case of the Flemish Merchants (1313) 3 Rym.Foed. (1727 ed.), 402, 403 (writ to Count of Flanders reciting appointment of justices according to treaty to hear and determine a dispute by the law of the realm “et similiter legem mercatoriam”); Dederit v. Abbot of Ramsey (1315) Place.Abbrev. 321, 46 Selden Soc. 86 (action in King's Bench for breach of a royal command relating to a suit secundum legem mercatoriam); Aubrey v. Flory (1321) 86 Selden Soc. 235, 243 (royal commission to justices in eyre to administer swift justice according to the law of the realm “vel secundum legem mercatoriam”); Anon. (1323) 6 Selden Soc. xxiv (writ commanding mayor's court of Bristol to investigate a prize case secundum legem mercatoriam; record removed into the King's Bench). In five of these cases use was made of a jury of merchants, and in the Flemish case inquiry was to be made by merchants and others. As late as 1384 the King's Bench ordered trial, in a case sent from Chancery, by a jury of merchants and others de medietate lingue: 6 Selden Soc. xlviii. See also Fulham v. Flemyng (1287) 55 Selden Soc. 169, 172 (action on the case in the King's Bench for seizing a ship; proof admitted secundum legem mercatoriam). For commissions to try maritime cases secundum legem mercatoriam, see 6 Selden Soc. xvi, n. 1, citing Hale.

26 Anon. (1293) Y.B. 21 & 22 Edw. I (Rolls Series), 74, 458, semble; Anon. (1313) Mich. 7 Edw. II (39 Selden Soc.), 14. Sir John Davies, The Question concerning Impositions (1656), p. 13, cites a case to the same effect in the eyre of Derby 2 Edw. II [sic]; this has not been traced in the MS. reports of the eyre of Derby in 4 Edw. II. Cf. Lowys v. Lowys (1303) 46 Selden Soc. 68 (pleas at Clonmel; action of debt; plea of infancy; plaintiff replies that he is a burgess and by consuetudo mercatoria he can bind himself at the age of 14; rejoinder that “contractus istud non est aliquid quod spectet ad forum mercatorium”).

27 See the count and writ in 46 Selden Soc. lxxx; Pylat v. FitzSibill (1308) Ibid. 78 (in Common Pleas); Fitz.N.B. 117D (iusticies); Registrum Omnium Brevium, 3rd ed. (1687), f. 135r (iusticies); Co.Litt. 172; S. F. C. Milsom, 80 Selden Soc. clxxxi. The existence of the writ seems to be questioned in Mich. 19 Edw. II (1678 ed.), 626, per Herle C.J. But the 1794 edition of Fitzherbert refers to a King's Bench precedent as late as 1616.

28 See the statutes 11 Edw. I, De mercatoribus (Stat. Regn. i, 53); Ordinance of the Staples 1353, 27 Edw. III, st. 2, c. 2 (Stat. Regn. i, 334: “soil hastive et redde proces fait devers lui, de jour en jour et de heure en heure, solonc la leie de lestaple et nemie a la comen lei”). William Noy, reading on the Statute of Acton Burnell in 1622, said, “The wise men of the law considered that the law of merchants ought to be different from the common law, for many of their contracts consist in aequo et bono without solemnity, and thereon many old judgments have been given by inspecta rei veritate … and this law was made according to the rule of the merchants, according to a form wholly different from the old law of the land”: Lincoln's Inn, MS. Misc. 29 (c) (translated from law French). This provides a contrast with the contrary statements of Davies and Coke, p. 316, below.

29 The Carrier's Case, note 21 above (translated from law French). The implication seems to be that the Star Chamber and the Chancery followed the same informal procedure. Perhaps it should read “[as] in the Chancery.” For the conciliar jurisdiction over maritime felonies, see 6 Selden Soc. xlv.

30 Fortescue, op. cit., pp. 74–77, mentions exceptions to common-law jury procedure in the Admiralty and in courts “ubi per legem mercatoriam proceditur” as being nevertheless allowed as leges Angliae.

31 Op. cit., p. 61.

32 E.g. Hill. 48 Edw. III, 2, pl. 6 (Harfleur in Kent); Pas. 20 Hen. VI, 28, pl. 21 (contract made in Paris, but defendant dared not demur); Mich. 15 Edw. IV, 14, pl. 18 (Calais in Kent); Temp. Hen. VIII, Bro. Abr., Faits, pl. 95.

33 Postan, op. cit., pp. 55–56.

34 Ibid. 49 (“They were extra-legal instruments, devised solely for the purposes of mercantile convenience, and they served all those purposes which mercantile convenience demanded, including that of assignment”).

35 Baker, J. H., An Introduction to English Legal History, 2nd ed. (1979), p. 303.Google Scholar

36 Y.B. 5 Hen. V, 4, pl. 10.

37 Spence v. Bryan (1468) CP 40/829, m. 44 (issue taken upon an alleged release). The dearth of early precedents exists only because no one has made a search of the fifteenth-century plea rolls. See also Mich. 21 Edw. IV, 28 pl. 2 (debt on a Flemish bill dated according to the custom of merchants).

38 Core v. May (1536) Dyer 20, Spelman's Reports (93 Selden Soc.), 132.

39 An unsealed bill could only be disclosed indirectly: e.g. Baynard v. Maltby (1531) Spelman's Reports, 93 Selden Soc. 10, 94 Selden Soc. 264 (bill of account recited in a demurrer to the evidence).

40 Walker v. Myddylton (1542) KB 27/1122, m. 105d (translated); a verdict for the plaintiff was taken by default.

41 See Burton v. Davy (1437) 49 Selden Soc. 117.

42 For these limitations, see McGovern, W. M., “Contract in Medieval England” (1968) 54 Iowa Law ReviewGoogle Scholar 19; (1969) 13 American Journal of Legal History 173.

43 E.g. Grene v. Warde, C1/28/210, printed in Barbour, W. T., History of Contract in Early English Equity (Oxford 1924), pp. 212–213.Google ScholarJones, W. J., The Elizabethan Court of Chancery (Oxford 1969), p. 381Google Scholar, says the sixteenth-century Chancery often handled bills of exchange. There is a case in the first decree roll: Michaell v. Dyas (1545) C78/1/43 (judgment for the plaintiff where bill of exchange dishonoured).

44 The law of debt is obscure, for the procedural reason that it rarely fell open to discussion. In Grene v. Warde the facts were that A delivered £100 at Bruges to B, who was the factor of C; B directed a bill to C witnessing the payment “after the course of marchaundise,” and the action was brought against C for non-acceptance. If we analyse the situation as being that B owes A £100 and C owes B £100, and that C agrees with B to pay A £100, this was no contract because it did not discharge B's debt and so there was no quid pro quo: Pas. 1 Hen. VI, 43, pl. 30; McGovern, 13 A.J.L.H. 186. But if we analyse it differently by regarding B as C's agent for the purpose of lending, then there may have been no difficulty in regarding C as bound by the agent's contract made on his behalf: Mich. 8 Edw. IV, 11, pl. 9, per Pygot sjt (“si … jeo face un home mon factor et mon atturney pur achater marchandise etc. en cest case s'il achate marchandise d'un home jeo serra charge per tiel contract”).

45 By 1466 it was held that the steward was the judge, and therefore error lay: Mich. 6 Edw. IV, 3, pl. 9, per Choke J.; Hil. 7 Edw. IV, 23, pl. 27, per Littleton J. Recorders are rarely heard of before the fifteenth century; by 1500 most cities and boroughs had inns of court men as recorders.

46 E.g. KB 27/1037, m. 76 (error on a recovery in assumpsit in the Hereford piepowder court, 1520); Myddelton v. Foxley (1523) CP 40/1038, m. 452 (debt on a recovery in assumpsit in a piepowder court). See also 94 Selden Soc. 52, n. 2.

47 See 94 Selden Soc. 51–53. Yet the King's Bench formally decided that the rule requiring covenants to be proved by deed, and the rule requiring fourteen days between returns of writs, were not universal and did not bind local courts: 93 Selden Soc. 120, 94 Selden Soc. 258. While this paper was in proof, the writer found a case of 1491 in Caryll's reports (Line. Inn, MS. Maynard 86) where the plaintiff assigned an error in fact “que touche solement le course del ley merchant.” Hussey C.J. said, “cest un especiall ley allowable icy, quel ne pursue le comen ley … dont nous ne poimus aver conusans, per que moy semble que nous covyent descryer a ceux queux sont justices, de nous certifier lour ley; et donques poimus sacher le quel cest que il assigne pur errour soit errour ou nemy.” Kebell sjt, however, replied that the parties should join issue on any disputed point of the law merchant. The report does not resolve the doubt, but it is evident that the problem was unfamiliar. The ley, it will be noticed, is procedural.

48 From Edmund Dudley's reading on Quo Warranto in Gray's Inn (c. 1490), Cambridge Univ. Lib. MS. Hh. 3. 10, at f. 16v (translated from law French). The same passage occurs in the later readings of William Marshall (Lincoln's Inn 1516) and John Spelman (Gray's Inn 1519).

49 Stat. 17 Edw. IV, c. 2, which attempted to impose definite limits. See also the note on this statute in Spelman's Reports (93 Selden Soc.), 139, s.v. Feiers. Evidently a wider jurisdiction continued in some parts. In 1520 a plaintiff in error attempted to upset a judgment in a piepowder court, in assumpsit for a servant's wages, on the grounds that “causa actionis sive sectae non est pro aliquibus rebus seu mercandisis in mercato emptis seu venditis”: KB 27/1037, m. 76 (no judgment).

50 Blanke v. Spinula (1520) KB 27/1036, m. 75; argument in Slade's Case (1598) in [1971] C.L.J. 58.

51 W. Rastell, Collection of Entrees (1566), f. 10r. The suggestion that this declaration imports an unmentioned bill of exchange was made by Judge Cranch in 1804: 3 Sel.Ess.Anglo-Amer.Leg.Hist. 77.

52 E.g. Lavandre v. Dele (1519) CP 40/1024, m. 534 (D, having notice of a forthcoming sale of madder, amicabiliter told L that if she would deliver him the money he would buy it for her; and she delivered the money, and he promised to deliver the madder but failed to do so; D pleads that the contract was made with an Antwerp merchant and the money was delivered to him—which suggests that D may have been acting as a factor); Mowenslowe v. Crowche (1531) KB 27/1080, m. 38 (C bought cloth from B for £540 Flemish, and M bound himself for payment, on C's undertaking to indemnify him; M was called on to pay, and sued C; C pleads that the sale was for M's own use, so that M was not bound on his behalf; but, on a verdict for M, M recovers £400 against C); Soly v. Perott, merchant of the Calais staple (1547) KB 27/1143, m. 102 (S delivered 174½ couronnes d'or to P and P undertook to repay them or their value; a jury de medietate lingue finds for S, who recovers £43 12s. 6d. plus costs).

53 KB 27/1116, m. 35d.

54 The bill (“cedula papiri”) read: “Be it knowen to all men that I John Barne of London oweth to Markes Colynes of Andwarp the somme of xliiij li. xiij s. iiij d. g., the whiche somme of xliiij li. xiij s. iiij d. g. I promyse to pay to the seide Markes or to the brynger of this bill in Colde Marte next, for the whiche payment well and truely to be payde I the seide John bynde me and my assignes. In wittenesse wherof I have wrytyn this bill and setto my hande the first day of Septembre anno domini 1538.” (In 94 Selden Soc. 61, 286, the present writer alluded to this document as a bill of exchange; but it seems closer to a promissory note, a term which was not then in use.) The subscription read: “I Henry Dolphyn promes to se this bill contented and payde at the day and tyme aforeseide by me Henry Dolphyn.”

55 See 94 Selden Soc.. 282.

56 KB 27/1152, m. 143.

57 94 Selden Soc. 286.

58 E.g. Maynard v. Dyce (1542) KB 27/1125, m. 110, abstracted below; Tusten v. Clotworthy (1600) KB 27/1361, m. 508. The writer is grateful to Mr. David Ibbetson for bringing the cases of 1600 to his attention.

59 E.g. Knappe v. Comyn (1600) KB 27/1361, m. 360 (judgment for the plaintiff).

60 E.g. W. S. v. R. H. (1571) Herne's Pleader, p. 136, citing Trin. 13 Eliz. I, m. 2021; Lucalli v. Foster (c. 1577) Brit. Lib., MS. Harley 664, f. 83; C. W. v. J. B. (1595) Rastell's Entrees (1596 ed.), f. 338. All these are from books of entries, in which only the declaration is copied.

61 E.g. Thumansen v. Van Prussen (1600) KB 27/1361, m. 413 (judgment for the plaintiff); Martin v. Boure (1603) Cro.Jac. 6, citing Pas. 44 Eliz. I, m. 493 (judgment for the plaintiff affirmed in Exchequer Chamber).

62 E.g. Lucalli v. Foster (c. 1577), above; Knappe v. Hedley (1600) KB 27/1359, m. 621, abstracted below; Thumansen v. Van Prussen (1600), above; Tusten v. Clotworthy (1600), above; Shepparde v. Becher (1600) KB 27/1361, m. 507d, abstracted below. Thereafter it is common form, and we have seen no reported objection to it.

63 See Simpson, A. W. B., History of the Common Law of Contract: the Rise of Assumpsit (Oxford 1975), pp. 475–485.Google Scholar

64 This was, of course, fully debated in Slade's Case (1597–1602): see [1971] C.L.J. 226–227.

65 KB 27/1125, m. 110. At the trial the plaintiff was non-suited.

66 KB 27/1361, m. 507d (c.a.v. to Hil. 1601).

67 It is odd that this was not found as a special custom in relation to trade between London and Middelburg, because the meaning of “usance” varied with the distance between places: see p. 319, below. Malynes confirms the fact that usance between London and Middelburg was one month.

68 Knappe v. Hedley, Selbye and Bartram (1600) KB 27/1359, m. 621.

69 Oaste v. Taylor (1612) Cro.Jac. 306, 1 Rolle Abr. 6.

70 Mounsey v. Traves (c. 1621) Vidian's Entries, p. 66. In Aswel v. Osborn (c. 1628) Ibid. 67, the custom is set out to charge the acceptor upon protest.

71 Baker, Introduction to English Legal History, p. 307.

72 The strange case of Vanheath v. Turner (1621), Winch 24, may indicate the contrary, but it is so obscurely reported that it is not even clear what form of action was used. Although the plaintiff's counsel said it was an action on the case, the plea of nil debet per legem suggests it was debt.

73 Anon. (1668) Hard. 485: perhaps identifiable as Milton's Case, cited 2 Keb. 695, 1 Mod. 286. Twisden J. doubted the correctness of the decision: 1 Vent. 153. Debt would have lain if the bill had been sealed: see the earlier cases cited above, and Peirson v. Ponuteis (1608) 1 Bro. & Goulds. 102, Yelv. 135.

74 Brown v. London (1669) 1 Lev. 298, 1 Vent. 152, 1 Mod. 285, 2 Keb. 695, 713, 758, 822; approved by Holt C.J. in Stewart v. Hodges (1693) 1 Salk. 125, Comb. 204, Holt 115; and Smith v. Aiery (1705) 6 Mod. 128, 129. Where, however, A paid money to B and B gave A a bill of exchange or promissory note for repayment, it was possible to bring indebitatus assumpsit for money lent and give the bill in evidence (in which case the custom was irrelevant): 2 Keb. 758, per Hale C.J.; Bromwich v. Lloyd (1698) Lutw. 1582. The same principle could have applied where money was laid out or had and received.

75 The records do not enable us to tell exactly when this practice began, or how frequently it was followed. But the use of bills as evidence of an undertaking was approved in Eaglechilde's Case (1630) Hetley 167, Litt.Rep. 363, and we have speculated above that it may have been practised much earlier.

76 For the principle that Canon law was noticed in the royal courts, see “Ascertainment of Foreign Law: Certification to and by English Courts prior to 1861” (1979) 28 I.C.L.Q. 141, 143. The same was probably true of the lex mercatoria in the old sense. Our seventeenth-century customs are different in character.

77 The Question concerning Impositions (1656), pp. 10, 27 (written temp. Jac. I). There is a similar passage in his argument in R. v. Cusacke (1619) 2 Rolle Rep. 113. Cf. Sir Bartholomew Shower's argument in Carter v. Downich (1689) Show. 127: “It is not like a particular custom, which is confined within a certain precinct in this realm, but it is of universal extent, and concerns the whole realm; nay, reaches further, for it is jus gentium and concerns all countries where traffick is used.”

78 Co.Litt. 182.

79 Hale, M., History of the Common Law of England, ed. by Gray, C. M. (Chicago 1971), p. 18.Google Scholar Hale, however, included local custom in the same category.

80 The Interpreter (Cambridge 1607), sig. Rr3. The passage was copied verbatim in the law dictionaries of Manley, Jacob and Tomlins. Cf. Noy, note 28 above. Likewise Hussey C.J. in 1491, note 47 above.

81 Mich. 30 Edw. III, 25, per Finchden sjt; Beaulieu v. Finglam (1401) Pas. 2 Hen. IV, 18, pl. 6, per curiam; Co.Litt. 110. St. German, Doctor and Student, lib. i, Chap. VII (91 Selden Soc. 45–57) equates custom of the realm and common law.

82 Richard's Case (1542) Dyer 54, Bro.Abr., Custom, pl. 59 (alleged custom of England for merchants to assign import licences by word of mouth); Vanheath v. Turner (1621) Winch 24, per Hobart C.J., semble; Woodward v. Rowe (1666) 2 Keb. 105, 132; Carter v. Downich (1689) 3 Mod. 226, Carth. 83, Show. 127 (action of covenant).

83 Anon. (1668) Hard. 485, per Hale C.B. See also (in relation to another custom) Rich v. Kneeland (1613) Hob. 17; Matthews v. Hopkin (1665) 1 Sid. 244.

84 Sarsfield v. Witherley (1689) Show. 125, Holt 112 (liable to payee); Cramlington v. Evans (1689) 1 Show. 4, 2 Show. 509, 2 Vent. 307, Holt 108 (liable to indorsee).

85 Williams v. Williams (1693) Carth. 269, 3 Salk. 68.

86 Anon. (1668) Hard. 485. See also Hodges v. Steward (1695) 3 Salk. 68, 69 (“though the court takes notice of the law merchant as part of the law of England, yet they cannot take notice of the customs of particular places”). Cf. Peirson v. Ponuteis (1608) 1 Bro. & Goulds. 102, Yelv. 135 (“the judges ought to take notice of those things that are used amongst merchants for the maintenance of traffick”).

87 Treatise on the Admiralty Jurisdiction, quoted with permission from the edited transcript by Mr. D. E. C. Yale, to whom the writer is extremely grateful. By “special pleading” Hale presumably meant questions raised on the pleadings (including the declaration) by demurrers, writs of error and motions in banc; issue was seldom, if ever, joined on the existence of a custom, though if it had been it is difficult to see why the matter should not have been dealt with by evidence and special juries. Two of Hale's rulings at the Guildhall on questions of mercantile law are noted by C. Molloy, De Jure Maritimo (1682 ed.), pp. 280, 281.

88 This is plainly hinted at in Carter v. Downich (1689) Show. 127, Carth. 83, 3 Mod. 226.

89 Lethulier's Case (1692) 2 Salk. 443.

90 Belasyse v. Hester (1697) 1 Ld.Raym. 1281, 2 Lutw. 1589, 1593, per Powell J. (“issint que le resolucion de le court en cest case ne ledera le custome des merchants”). See also Chandler v. Meade (1705) 2 Ld.Raym. 1211, 1212.

91 Oaste v. Taylor (1612) Cro.Jac. 306, 1 Rolle Abr. 6; Mounsey v. Traves (c. 1621) Vidian's Entries, p. 66 (custom “inter mercatores apud civitatem Lond.”); Aswel v. Osborn (c. 1628) Ibid. 67 (similar).

92 E.g. Bate v. Luce (undated) Vidian's Entries, p. 70 (London and Venice); Ashurst v. Thomas (c. 1660) Ibid. 33 (London and Dublin); Clarke v. Robinson (c. 1662) Ibid. 34 (London and Amsterdam); Aboas v. Raworth (c. 1666) Ibid. 30 (London and Amsterdam); Colvile v. Cutler (c. 1666) Ibid. 31 (London and Gothenburg [Göteborg]); Walkyn v. Butts (1683) Clift's Entries, p. 897 (London and Dunkirk); Death v. Serwonters (1685), set out below (London and Venice). The custom of London was always laid in a parish and ward, but this was merely for venue purposes, since a jury could not be summoned from the city of London in general: Bromwich v. Loyd (1698) Lutw. 1582, 1585.

93 Lutw. 885, 886 (translated from Latin).

94 The point is raised by the pleadings in Claxton v. Swift (c. 1685) Lutw. 878, 3 Mod. 86, 2 Show. 441, but not argued.

95 Lutw. 892.

96 Ewers v. Benchkin (c. 1688) Lutw. 231.

97 Sarsfield v. Witherley (1689) Show. 125, Holt 112. These cases have been misread as indicating a change of heart since Oaste v. Taylor (1612), where it was objected that the defendant was not averred to have been a merchant at the time of acceptance. But in the 1612 case the custom as laid was only for merchants, whereas in the later cases it was “for merchants and others.”

98 This might even mention a bill of exchange in setting the context for the assumpsit, without relying on a custom: e.g. Vandeput v. Messam (undated) Vidian's Entries, p. 69.

99 As to the treatment of foreign law, see “Ascertainment of Foreign Law: Certification to and by English Courts prior to 1861” (1979) 28 I.C.L.Q. 141–151.

1 In fact it was a familiar complaint in the 17th century that the common law in commercial matters was too remote from the actual customs of merchants: see, e.g. Sir Josiah Child, A Discourse about Trade (1690), p. 113.