The Development of the Nineteenth-Century Consensus Theory of Contract

Philip A. Hamburger

doi:10.2307/743883

The Development of the Nineteenth-Century Consensus Theory of Contract

Published online by Cambridge University Press: 28 October 2011

Philip A. Hamburger

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The consensus theory is well known. According to consensus theory, contract is the product of the consensus or “meeting of the minds” of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

Type: Articles
Information: Law and History Review , Volume 7 , Issue 2 , Fall 1989 , pp. 241 - 329

DOI: https://doi.org/10.2307/743883 [Opens in a new window]
Copyright: Copyright © the American Society for Legal History, Inc. 1989

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References

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1. Atiyah, P. S., The Rise and Fall of Freedom of Contract (1979)Google Scholar; Horwitz, M. J., The Transformation of the Common LawGoogle Scholar; Simpson, , Innovation in Nineteenth Century Contract Law, 91 L.Q.R. 247 (1975)Google Scholar.

2. Gilmore, , Kessler, , & Kronman, , Contracts, ch. 1 (1986).Google Scholar

3. Note that some of these historians and theorists did not completely or consistently adopt this perspective.

4. Horwitz, , Transformation, ch. 6 (1977).Google Scholar

5. Atiyah, Rise and Fall.

6. Simpson, A. W. B., A History of the Common Law of Contract (1975)Google Scholar; Simpson, Innovation.

7. Simpson, Innovation; Simpson, , The Horwitz Thesis and the History of Contract, 46 U. of Chi. L. Rev. 533 (1979)CrossRef Google Scholar.

8. E.g., Scheiber, , Public Rights and the Rule of Law in American Legal History, 72 Calif. L. Rev. 217 (1984)CrossRef Google Scholar.

9. Of course, a lawyer's appreciation and conception of a given doctrine—and even of doctrinal continuity—are linked to his perceptions of matters beyond the confines of doctrine. Therefore, the need to avoid the appearance of doctrinal discontinuity cannot be purely internal, and doctrine cannot be literally independent. Yet the possibility of avoiding the appearance of doctrinal discontinuity is frequently the product of a confluence of factors so varied, remote, and complex in their interaction that it is often, in a sense, accidental or fortuitous whether such a possibility will or will not exist. (Perhaps, moreover, some ideas, including legal doctrines, can be attractive because they are aesthetically pleasing or familiar.) For these reasons, it seems possible to use the words “internal” and “independent,” albeit with qualification.

10. Gilmore, G., The death of Contract (1972).Google Scholar

11. Id. at 13.

12. Atiyah, , Contracts, Promises and the Law of Obligations, 94 L.Q.R. 193, 194 (1978)Google Scholar. Although Atiyah discusses the sympathy for economic freedom that existed prior to the late eighteenth century, he makes clear his belief that it was the late eighteenth-century liberal economic theories rather than earlier attitudes that “led to the evolution of modern contract doctrine.” Atiyah, Rise And Fall at 398. References in this article to economic liberalism or liberal thought should be understood to mean late eighteenth- and nineteenth-century theories rather than earlier, non-theoretical sympathy for freedom of contract.

13. Atiyah, Rise and Fall at 1.

14. Horwitz, Transformation, chs. 5 & 6.

15. Simpson, Innovation at 250.

16. Simpson, , A History of the Common Law of Contract at 166 & 185–93.Google Scholar

17. Simpson, Innovation at 257–59.

18. Id. at 247. Simpson is slightly ambiguous about such copying. For details, see note 144 infra and accompanying text.

19. Id. at 247.

20. Id.

21. Simpson argues that concern about commercial interests shaped little of the consensus theory. Simpson, The Horwitz Thesis. My examination of the development of the consensus theory supports Simpson's position on Horwitz.

22. For contrary views, see: Simpson, Innovation at 247 & 252; Atiyah, Rise and Fall at 139 & 446.

23. Simpson, , A History of the Common Law of Contract at 43 & 117Google Scholar; Milsom, S. F. C., Historical Foundations of the Common Law 251 (1981)Google Scholar. Kirafly's analysis of selected sixteenth- and seventeenth-century plea rolls reveals no more than five and usually only one or two actions of covenant per term in Common Pleas, King's Bench, or the Exchequer. Kirafly, A. K., The Action of the Case, app. A (1951)Google Scholar.

24. Simpson, , A History of the Common Law Of Contract at 88.Google Scholar

25. Simpson, , Innovation at 258Google Scholar; Atiyah, , Rise and Fall at 137Google Scholar.

26. Simpson, , A History of the Common Law of Contract at 189Google Scholar.

27. Milsom, , Historical Foundations of the Common Law at 246, 249 & 309Google Scholar.

28. Ibbetson, , Words and Deeds: The Action of Covenant in the Reign of Edward I, 4 L. & Hist. Rev 71 (1986)CrossRef Google Scholar.

29. Milsom, , Historical Foundations of the Common Law at 249Google Scholar.

30. Simpson, , A History of the Common Law Of Contract at 189Google Scholar; Milsom, S. F. C., Sale of Goods in the Fifteenth Century, Studies in the History of the Common Law 105 (1985)Google Scholar.

31. Milsom, , Historical Foundations of the Common Law at 246–47Google Scholar.

32. Simpson, , A History of the Common Law of Contract at 32–33, 166 & 185–93.Google Scholar

33. Gilmore, , The Death of Contract at 13Google Scholar.

34. Milsom, , Historical Foundations of the Common Law at 355–56Google Scholar. Simpson writes that “between then and today we have moved from an essentially one-sided conception—a promise broken—to an essentially two-sided notion—a contract broken.” Simpson, , Innovation at 257–58Google Scholar. According to Simpson, “[T]he nineteenth century… saw a shift in emphasis from the essentially unilateral notion of a promise to the conception of a contract—a bilateral conception …” Simpson, , Introduction to Cheshire & Fifoot, Law of Contracts 11 (1981)Google Scholar.

35. St. German, Doctor And Student 228–33 (Selden Soc. Vol. 91, 1974). One of the student's comments is particularly suggestive: “… thys is properly called a Concorde/ but yt ys also a contract & a good accyon lyeth vppon yt/ how be it yt ys not moche argued in the lawes of Englande what dyuersyty is betwene a contracte/ a promyse/ a gift/ a lone/ a bargeyne/ a couenant/ or such other / for the intente of the lawe ys to have the effecte of the mater argued and not the termes.” Id. at 228.See McGovern, , The Enforcement of Informal Contracts in the Later Middle Ages, 59 Calif. L. Rev. 1145, 1190–91 (1971)CrossRef Google Scholar.

Professor McGovern concludes that in the fourteenth and fifteenth centuries, assumpsit was already understood as being based on contract. This seems unlikely, and therefore I am reluctant to rely on McGovern's thesis to prove my argument. See 2 The Reports of Sir John Spelman 257 (J. H. Baker ed., Selden Soc. Vol. 94, 1978).

McGovern cites cases of assumpsit concerning venue. In some such cases, judges found venue in the place where the breach occurred, and in other cases they found venue in the place where the agreement was made. According to McGovern, this reveals that the action of assumpsit was based on the concept of contract. In fact, the cases he cites are susceptible to a variety of interpretations, and, in light of the fact that venue was not denied to plaintiffs who sued in the place of breach, one must be cautious about asserting that the allowance of venue in the place of contracting was based on a contractual conception of the action of assumpsit.

McGovern points out that a statute of 1503 provided plaintiffs in actions of assumpsit the same process as was available in actions of debt and trespass, but this does not mean that assumpsit was thought to be based on the concept of contract. As McGovern notes, the statute itself explained that it was designed to prevent “grette delayes in accions of the case.” It tells us nothing about the concept of contract and its relationship to assumpsit. Moreover, McGovern's discussion of damages proves little about the conceptual treatment of actions of assumpsit and debt because, as McGovern discusses, relatively little is known about the damages given in these actions. McGovern argues further that it is difficult for historians “to identify any difference between debt and assumpsit” with respect to the requirement of consideration. Sixteenth-century lawyers, however, did make such a distinction.

Notwithstanding the difficulties with McGovern's view of medieval actions of assumpsit, his arguments are very apt and important when he applies them to more recent developments in the law of assumpsit.

36. Helmholz, , Assumpsit and Fidei Laesio, 91 L.Q.R. 406 (1975)Google Scholar; Milsom, , Historical Foundations of the Common Law at 358Google Scholar; Simpson, , A History of the Common Law Of Contract, chs. 4–7Google Scholar. Maitland discussed the background of consideration and concluded: “all along there is a strong feeling that…purely gratuitous promises are not and ought not be enforcable.” 2 Pollock, & Maitland, , The History Of English Law 213–14 (1968)Google Scholar. Whether the consideration doctrine was directly derived from similar requirements in canon law or equity is a question that need not be discussed here.

37. McGovern, , The Enforcement of Informal Contracts at 1192.Google Scholar

38. Baker, J. H., An Introduction To English History 281 (1979)Google Scholar (citing an argument of counsel in Slade's Case).

39. Id. at 286–87 & 336. See Pinchon's Case, 9 Coke 86, 77 Eng. Rep. 859 (K.B. 1612):

As to the other objection, that this personal action of trespass on the case moritur cum persona; although it is termed trespass, in respect that the breach of promise is alledged to be mixed with fraud and deceit to the special prejudice of the plaintiff, and for that reason it is called trespass on the case; yet that doth not make the action so annexed to the persons of the parties, that it shall die with the persons; for then if he to whom the promise is made dies, his executors should not have any action, which no man will affirm. And an action sur assumpsit upon good consideration, without specialty to do a thing, is no more personal, i.e., annexed to the person, than a covenant by specialty to do the same thing.

9 Coke at 89, 77 Eng. Rep. 863.

40. Baker, , Introduction To English Legal History at 274.Google Scholar

41. Milsom, , Historical Foundations of the Common Law at 332.Google Scholar

42. Y.B. 21 Edw. 4, 22 as described by Croke. See text at note 49 infra. Prior to the sixteenth century, this rule may have been understood to apply to actions brought upon a right.

43. Case of 32 Hen. 8 (1541), cited in R. Brooke, La Graunde Abridgement (1573, i.e. 1574), under Verdict, No. 90 (assumpsit to do two things and only one found). The law with respect to variances from declarations probably derived from, and was understood to be related to, similar law concerning variances from writs. See, for example, the case of 42 Edw. 3 (1368) cited in id. under Waste, No. 28 (exception to variance in writ “non allocat. car nest semble det [sur] obligation”).

44. Lewes v. Style (K.B. 1506) cited in Croke Eliz. 79, 78 Eng. Rep. 339. Note that in the late sixteenth century the accuracy and relevance of the report of this case was disputed. (J. H. Baker has identified the case's name and its importance for the development of the action of assumpsit in situations involving nonfeasance. 2 The Reports Of Sir John Spelman, 277). Case of 32 Hen. 8 (K.B. 1541) cited in Brooke's Abridgment under Verdict, No. 90.

45. King v. Robinson, Croke Eliz. 79, 80, 78 Eng. Rep. 339, 340 (Q.B. 1587). One of the cases to which Catlin referred may have been Billingesley's Case, 2 Dyer 219, 73 Eng. Rep. 486 (1568).

46. The cases of 1587 and 1589 appear to be the last in which the newer doctrine was seriously disputed. Incidentally, it may be no coincidence that these cases, which treated assumpsit as a remedy based on contract, were decided by Queen's Bench. This was the court that took the lead in extending the action of assumpsit to reach contracts otherwise actionable in debt.

47. Croke Eliz. 79, 78 Eng. Rep. 339 (Q.B. 1587).

48. Croke Eliz. 147, 78 Eng. Rep. 404, 1 Leonard 299, 74 Eng. Rep. 273 (Q.B. 1589).

49. 1 Leonard 299, 300. Gawdy had just recently joined the bench and had not participated in the Robinson decision.

50. Hunt's Case, Owen 42, 74 Eng. Rep. 886 (C.P. 1588). Blackstone later used similar language. See note 179 infra. In Sharington v. Strotton, Plowden argued “sir, by the law of this land there are two ways of making contracts or agreements for lands or chattles. The one is, by words…; the other is, by writing…. And because words are often times spoken by men unadvisedly and without deliberation, the law has provided that a contract by words shall not bind without consideration…. [E]very deed imports in itself a consideration.” Sharington v. Strotton, Plowden 298, 308–9, 75 Eng. Rep. 454, 470–71 (K.B. 1565).

According to Milsom, common lawyers in the period prior to the nineteenth century did not have a concept of contract that included both assumpsits and covenants and thus could not describe contract as something enforceable upon either consideration or a sealed deed. Milsom, , Historical Foundations of the Common Law at 356Google Scholar. The material presented here indicates otherwise. See also 2 Sheppard, W., Actions on the Case For Deeds 42 & 44 (1675)Google Scholar; G. Gilbert, Of Contracts, British Library, Hargrave 265, fol. 43 (quoted in note 268 infra).

More generally, Hunt's Case shows that lawyers could discuss the concept of contract even when they did not have a clear name for it. For another discussion of a concept without mention of its name, see the case of 42 Edw. 3, cited in note 43 supra.

51. Gilbert, G., The Law Of Evidence 135 (1754).Google Scholar

52. Baron Gilbert, writing prior to 1726, stated the rule as follows:

Note, the Difference between an Assumpsit in Deed and an Assumpsit in Law; in the Assumpsit in Deed where the Contract are [sic] mutual, and either Side declares for Non-performance, there he must set forth the very Contract, and if he mistakes in Quantities of Sums, he fails; because his Injury is in the Nonperformance of the very Contract alledged in the declaration, and if he does not show such a Contract, he does not intitle himself to a Recompense of the Breach of it.

But where he brings his Action for an Assumpsit in Law, if he shows Part of the Goods delivered, or Part of the Money lent, 'tis good; because on ev'ry several Delivery of Goods, or Receipt of Money, the Law implys a several Contract for Restitution, and there the Gist of the Injury is not whether such a particular Contract is broken, but whether the Goods were delivered or Money paid to the Defendant, and the Quantities of the Goods or the Sum is no farther material than to increase or lessen the Damages.

Gilbert, , The Law Of Evidence, at 135 (1754)Google Scholar.

53. Baker v. Edmonds, Aleyn 28, 83 Eng. Rep. 898, Style 62, 82 Eng. Rep. 531 (K.B. 1671). (An early case, however, held contra. Bagnal v. Sacheverell, Croke Eliz. 292, 78 Eng. Rep. 546 (K.B. 1593). For a suggestion that this approach was appropriate in actions of debt, see the discussion of Y.B. 22 Edw. 4, fol. 2a. pl. 8 in the report of Bladewell v. Sleggein, 2 Dyer 219, 73 Eng. Rep. 485 (1562). The relief from the rigors of the variance rule probably contributed greatly to the popularity of the indebitatus counts.

54. Bland v. Hazelrig & Alios, 2 Ventris 151, 86 Eng. Rep. 363 (C.P. 1690). See also: Franklin v. Walker (Northampton Assizes 1667), cited in Gilbert, , The Law of Evidence, at 132Google Scholar; Buller, F., An Introduction to the Law Relative to Trials at Nisi Prius *129.Google Scholar

55. It may be objected that the indebitatus counts were restitutionary. Actions brought on indebitatus counts, however, were not always restitutionary, other than in a superficial sense. The use of the phrase “quasi contract” and Baron Gilbert's description of the indebitatus counts as “restitutionary” suggest that those counts were seen as a restitutionary remedy, perhaps in the beginning of the seventeenth century and certainly toward its close. Indebitatus assumpsit, however, could have been restitutionary only in a very limited way. The restitutionary basis of the remedy was much obscured by talk of implied promises. More important, to the extent consensus and even merely contractual analysis was known and appreciated, the use of indebitatus assumpsit as a remedy for actual agreements (including express agreements) reduced the restitutionary basis of indebitatus assumpsit to something like a pleading requirement or even a fiction. Thus, it seems unlikely that all claims brought in indebitatus assumpsit were considered restitutionary. The cause of action or remedy was restitutionary, but the underlying claim frequently, perhaps typically, was understood to be contractual. See also note 171 infra.

56. Hale's Analysis and Blackstone's Commentaries expressly treated assumpsit as a remedy for breach of contract. Hale, , Analysis of the Common Law § 41Google Scholar; 3 Blackstone, , Commentaries at *154Google Scholar. Although Finch, in his Law, or a Discourse Thereof, did not clearly identify assumpsit as one of the remedies for breach of contract, he revealed his contractual understanding of assumpsit in his Nomotechnia, a revised and supposedly superior edition of his Law. In Nomotechnia, Finch discussed assumpsit together with covenant and debt on obligation as “personal charges.” Finch, H., Nomotechnia, bk. 2, ch. 16 (1613)Google Scholar. See also note 59 infra.

In the early seventeenth century, William Noy wrote about what he called “the general learning of making and dissolving of contracts”; Noy, W., A Dialogue and Treatise on the Law, in The Principle Ground and Maxims 348 (1821)Google Scholar. The leading eighteenth-century treatise on nisi prius described covenant, debt, assumpsit, and account as actions “founded upon contract” and explained that “Of all actions founded upon contract, none is in more general use than the Action of Assumpsit, which is founded upon a contract either expressed or implied by law, and gives the party damages in proportion to the loss he has sustained by the violation of the contract.” Buller, , Introduction to the Law Relative to Trials At Nisi Prius at *128Google Scholar. Note the following title: Law of Actions on the Case for Torts and Wrongs, Being a methodical collection of all of the cases concerning such actions, viz. 1, Trover and Conversion of Goods; 2, Malicious prosecutions; 3, Nusiances; 4, Deceits & Warranties; 5, On the common custom against carriers, innkeepers, etc. (1720).

57. Finch, H., Law, Or A Discourse Thereof 179 (1759).Google Scholar

58. Hale, , Analysis of the Common Law, § 28Google Scholar; 2 Blackstone, , Commentaries at *442–43Google Scholar.

59. Not only did Blackstone divide contract and contract remedies, but he also split his discussion of contract between service contracts and property contracts. As Simpson has pointed out, this was an unfortunate but inevitable consequence of the larger, structural division in Blackstone's Commentaries between the rights of persons and those of things. 2 Blackstone, , Commentaries xiv (Simpson, A. W. B. ed. 1979)Google Scholar. For a general analysis of the structure of Blackstone's Commentaries, see Lobban, , Blackstone and the Science of Law, 30 Hist. J. 311 (1987)CrossRef Google Scholar.

Finch's Nomotechnia has been claimed to be superior to his Law on account of its better organization and fuller detail. Prest, , The Dialectical Origins of Finch's Law, 36 Cambridge L.J. 326, 345–46 (1977)CrossRef Google Scholar. There was a reason, however, why Finch's Law was by far the more popular and influential book: Its organization was clearer. In Nomotechnia, Finch discussed possessions and things in the same book as the wrongs concerning them; in his Law, he dealt with those subjects in separate books. Neither organization was entirely felicitous, but one arrangement—the separation of things and wrongs—had the virtue of clarity. It also had the virtue, fully exploited only in Blackstone's Commentaries, of more completely liberating contract from the artificial categories of common law remedies and thereby providing a place in surveys of the common law in which to discuss contract. In Finch's Law, contract appeared in the book on things, and the forms of action were in the book on wrongs. Consequently, the treatment of contract and the discussion of the remedies for contract had to be quite separate from one another. Nomotechnia, however, discussed things and wrongs together in one book and thereby failed to reveal as clearly in its organization the difference between contract and the remedies for contract.

60. Richard, Earl of Clanrickard v. Robert Sidney, Viscount Lilse, Hobart 273, 275, 80 Eng. Rep. 418, 420 (C.P. 1615). As Simpson has shown, some late-medieval discussions contain statements that are more similar to a consensus theory. Simpson, , A History of the Common Law Of Contract at 188.Google Scholar

61. Civilian ideas probably contributed to the survival and new importance of the abstract notion of contract, but the degree of such influence is unclear.

62. Simpson, Innovation at 252–57.

63. Id. at 253–57 & 277.

64. Horwitz, Transformation, ch. 6.

65. Id.

66. Id.

67. Helmholz, R. H., Canon Law and the Law of England (1987)Google Scholar; idem, Assumpsit and Fidei Laesio.

68. Coquillette, , Legal Ideology and Incorporation, Part I: The Early Civilian Writers, 1529–1607, 61 B.U.L. Rev. 1 (1981)Google Scholar. But see note 82 infra.

69. Simpson, , Innovation; idem, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. Chi L. Rev. 632, 672–74 (1981)CrossRef Google Scholar; Hoeflich, , Roman and Civil Law in American Legal Education and Research Prior to 1930: A Preliminary Survey, 1984 U. Ill. L. Rev. 719Google Scholar; Pound, , The Place of Justice Story in the Making of American Law, 1 Mass. L.Q. 121 (1916)Google Scholar; idem, The Influence of French Law in America, 3 U. Ill. L. Rev. 354 (1909)Google Scholar.

70. Coquillette, Legal Ideology.

71. 1 West, W., Symboleography § 30, signature B5 (1647)Google Scholar. West relied greatly on Vultejus. Wood, T., A New Institute of the Imperial or Civil Law 86 (1730) (1st pub. 1704)Google Scholar.

72. 1 West, , Symboleography, signature B1 (1647)Google Scholar.

73. Wood, , A New Institute at 86 (1730)Google Scholar.

74. The influence of Symboleography went beyond its many editions. Cowell's Interpreter (1607), a law dictionary, borrowed West's language for the definition of contract, as did Blount in his dictionary (1656). Another civilian treatise published in England in the sixteenth century was Principia Quaedam, et Axiomata jure Civili Sparsam Collecta (1581). It did not, however, apply civilian principles to English law. Alas, I have only seen a microfilm of the Huntington copy, which is missing the pages on contract.

75. Fulbecke, W., A Parallele or a Conference of the Civill Law, the Canon Law, and the Common Law of this Realme of England. Wherein the Agreement and Disagreement of these three Lawes, and the Causes and Reasons of the Said Agreement and Disagreement, are opened and discussed (1602)Google Scholar.

76. Id. at 18 verso.

77. Id. at 1.

78. Cowell, J., The Institutes of the Lawes of England, Digested into the Method of the Civill or Imperial Institutions (1651) (1st pub. 1605).Google Scholar

79. Wood, , A New Institute at 88 (1704)Google Scholar. Cowell's Interpreter (1607) was the chief source of displeasure.

80. Cowell, , The Institutes of The Lawes of England at 167 & 169Google Scholar. Under the title “Of void and unprofitable Covenants,” Cowell explained that “[h]e who answers not according to demand, nor according to what he is asked, (as if one covenant to pay me tenne pounds, and another promiseth five pounds, or if one covenant absolutely, and another conditionally) makes the covenant nothing.” Id. at 172.Cowell also wrote that “[i]f the Covenantor thinketh and supposeth one thing and the Obliger another, the Covenant is no more valid then if there had been no answer at all to the question.” Id. at 175.

81. The ambitions of these early English civilians and their intellectual relationship with Bartholus is discussed by Levack, B. P., The Civil Lawyers in England 1603–1641, at 136–37 (1973)Google Scholar, and Coquillette, Legal Ideology.

82. Coquillette argues that the attempts to apply civilian law directly to common law were abandoned following 1607, when Cowell's statements in support of the prerogative caused a political controversy in Parliament. Coquillette, Legal Ideology at 84. Prior to 1660 and especially during the Interregnum, however, civil law continued to provoke interest as a model for the common law, leading, ironically, to the translation of Cowell's Institutes by order of Parliament. The civilian-inspired attempts at reform were unsuccessful.

83. Simpson, , The Rise and Fall of the Legal Treatise at 641–51Google Scholar; Stein, P., Regulae Juris (1966)Google Scholar. See also Doddridge, J., The English Lawyer 158–59 (1631)Google Scholar. For maxims relating to contracts, see id. at 164.

84. In the preface to his frequently reprinted lecture outline on civil law, Samuel Halifax noted that on the Continent “the connection between the Imperial and Municipal laws is much more visible than in England.” He asserted the necessity of studying civil law to acquire “skill in the grounds and theory” of law. Although a student who did not study civil law could attain “a certain mechanical readiness” in the law, he could not “comprehend that enlarged and general idea of it, by which it is connected with the great system of Universal Jurisprudence.” Halifax, S., An Analysis of the Roman Civil Law xi & xxii (1795)Google Scholar (1st pub. 1774). This juriprudential role of civil law was greatly influenced by and shared by natural law.

85. T. Bever, a civilian, appears to have been the only writer sufficiently selfconscious and candid to explain not only why civil law was a source of jurisprudence but also why it had to be so treated. It was the fact that civilian doctrine was not an authority in England that made it necessary for Bever to “represent it to your view under the more enlarged character of jurisprudence.” Bever, T., A Discourse on the Study of Jurisprudence and The Civil Law 23 (1766)Google Scholar.

86. English civilians and common lawyers thus had special reason to describe and study civil and related natural law as “universal law” or “jurisprudence”: these labels identified civil law as being safely incapable of direct application. It is not a coincidence that the first publication of Domat's work in England was Wood, T., Treatise of First Principles of Laws in General (1705)Google Scholar (republished in the 1721 and 1730 editions of Wood's New Institute). Emphasis on the role of civil law as a source of jurisprudence or underlying principles may be found in most English treatises on such law and increasingly in surveys of common law.

Civil law and related natural law were not, of course, the only possible sources of jurisprudence, but they clearly were more popular among common lawyers than the alternatives. Thus, for example, Adam Smith's lectures on jurisprudence, given in the 1760s at Glasgow, probably reached relatively few English or American lawyers and certainly had little effect upon them. Even Smith began his course by noting that Grotius was the first to attempt to provide a regular system of jurisprudence and that his remained the most complete. Smith, A., Lectures on Jurisprudence 397 (Meek, R. L., Raphael, D. D., Stein, P. G. eds. 1982)Google Scholar. William Jones relied on the laws of many nations to elucidate bailments, taking an approach more explicitly based on natural law than did the Englishmen who referred only to civil law for their jurisprudence. Jones did much to develop and popularize the eclectic natural law approach, yet he emphasized the importance of Roman law.

87. Simpson, , Rise and Fall of the Legal Treatise at 656Google Scholar.

88. Coquillette, , Justinian in Braintree; John Adams, Civilian Learning and Legal Elitism, 1758–1775, in Law in Colonial Massachusetts 359Google Scholar.

89. For the information about the seven editions of Pufendorf, see Stein, P., Legal Evolution 3 (1980)Google Scholar.

90. Wood, , A New Institute (1704)Google Scholar.

91. Ayliffe, J., A New Pandect of Roman Law (1734)Google Scholar. Other English civilian works include Eden, R., Jurisprudentia; Philologica Sive Elementa Juris Civilis … (1744)Google Scholar, and Taylor, J., Elements of the Civil Law (1755, 1756 & 1786)Google Scholar. For attempts to present natural law and civilian ideas on topical subjects, see. Ayliffe, J., Law of Pawns (1732)Google Scholar; de Boutigney, R. LeVayer, A Dissertation Showing the Invalidity of all Proof by Similitude of Hands in Criminal Cases (1744)Google Scholar; and Stebbing, H., A Dissertation on the Power of States to Deny Civil Protection to the Marriages of Minors Made Without the Consent of their Parents or Guardians (1755)Google Scholar.

92. Duck, A., De usu et authoritate juris civilis romanarum in dominiis principum christianorum (1653, 1679, and 1689)Google Scholar and, in translation, appended to de Ferriere, C. J., History of the Roman or Civil Law (1724)Google Scholar; Ayliffe, J., A Preliminary Discourse Touching the Rise and Progress of the Roman Civil Law, in A New Pandect of Roman Law (1734)Google Scholar; Bever, T., The History of the Legal Polity of The Roman State; and of the Rise, Progress, and Extent of the Roman Laws (1781)Google Scholar; Schomberg, A. C., Historical and Chronological View of the Roman Law (1785)Google Scholar. See also Wynne, W., Life of … Jenkins (1724)Google Scholar, and de Burigny, J. L., The Life of the Truly Eminent and Learned Hugo Grotius (1754)Google Scholar.

93. Rutherforth, T., Institutes of Natural Law (1754–56)Google Scholar (the lectures were given in Cambridge); Bever, , A Discourse on the Study of Jurisprudence and The Civil Law (1766)Google Scholar (the lectures began in 1762 in Oxford); Halifax, S., An Analysis of The Roman Civil Law; In Which a Comparison Is Occasionally Made Between the Roman Laws and Those of England (1774, 1775, 1779, 1795, 1818 & 1836)Google Scholar (the lectures were given in Cambridge). Although Paley's lectures, given in about 1770, were not on civil law, they reflected the civilian jurisprudence, including that on contracts. Paley, W., Lectures on Moral and Political Philosophy (1785 and frequently thereafter in both England and the U.S.)Google Scholar. For Paley's influence, see Simpson, Innovation at 260.

94. Wilde, J., Preliminary Lecture to the Course of Lectures on the Institutions of Justinian (1794)Google Scholar.

95. Simpson, , The Rise and Fall of the Legal Treatise at 655–56Google Scholar. Note that the late seventeenth- and eighteenth-century civilian jurisprudence contributed much to the rise of the treatise and was closely related to the eighteenthand nineteenth-century interest in principles of substantive law.

96. Paulisch, , Sir John Davies, the Ancient Constitution, and Civil Law, 23 Hist. J. 689, 690 (1980)CrossRef Google Scholar.

97. In 1687, Lincoln's Inn accepted “a present of a considerable number of bookes of the Civell Law.” 3 Records of… Lincoln's Inn. The Black Books 159 (1899)Google Scholar. In 1708, when given 50 pounds for books, the Council of Lincoln's Inn “decided to expend the same on books of the Civil, Canon, and Feudal Law,” and the librarian applied to “the most learned civilian, Mr. Alexander Cunningham … for his recomendacion.” Id. at 234. In 1744, on the recommendation of the Inn's Committee on the Library, the Council ordered purchase of a list of books, almost all relating to common law, except a few reference volumes and “Puffenderf[sic]” and “Grotius by Barbeyrac.” Id. at 333.

In 1755, Gray's Inn ordered purchase of “Fitzherbert's Natura Brevium,” “The Parliamentary History”; and “Taylor's Elements of the Civil Law” 2 The Pension Book of Gray's Inn 282 (1910)Google Scholar. In 1769, the Inn ordered purchase of a variety of volumes, including “Harris' translation of Justinian.” Id. at 311. The accounts of the Inn reveal that in 1760–61 just over sixty-six pounds was paid to the Inn's regular supplier of books, “Osborne for civil law books.” Id. at 410.(For purposes of comparison, note that in 1760–61, the Inn paid Osborne about 117 pounds for other, unidentified books; in 1761–62, it paid him nothing; in the three following years it paid him, respectively, about 85, 64, and 108 pounds for unidentified books.)

In 1723, the Inner Temple bought fifty books, most concerning common law. Of the others, several were reference works, several concerned history, a few dealt with natural history, and some concerned civil law, namely: “Corpus Juris Civilis 2 Vols…. 1663,” “Domat's Civil Law per Dr. Strahan … 1722,” and “Pufendorf's Law of Nature and Nations … 1717.” 4 A Calendar of Inner Temple Records 98–99 (1933)Google Scholar. In 1737–38, the Inn paid “for one set of Grevi and Gronovi in 25 vols.” Id. at 384. In 1750–51, the Inn bought “Grotius' De Jure Belli et Pacis … by Barbegrac [sic].” 5 Id. at 9. In 1758, the Inn's library received “Harris' Justinian's Institutions in English and Latin.” Id. at 99.In 1772, the Inn ordered its librarian to catalogue the books in the library under various headings, including “Civil law.” Id. at 276.

The 1734 library catalogue of the Middle Temple reveals volumes by Cujas, Grotius, Pufendorf, and Domat. Catalogus Librarium Bibliothecae Honorabilis Societas Medii Templi Londini 109, 191, 231 & 335 (1734)Google Scholar.

This note about civilian books in the eighteenth-century Inns of Court is necessarily incomplete. The printed calendars of the Inns' records cover varying periods, they are at times poorly indexed, and in places they deliberately omit information.

98. Chief Justice Lee's library included “Cumberland's Law of Nature,” “Domat” in two volumes (probably the translation), and “Pufendorf,” which were interspersed among a large number of books on common law and some on related history. W. Lee, Catalogue of Library, Beineke Library, Yale University, Osborne Shelves, Lee Family Box 18, Folder 7. Lee took notes on his reading of Domat, Ayliffe, and Wiseman. His notes also indicate that he had read Wood's New Institutes. Some of his notes reveal an interest in the authority of civil law in England. Lee, Notes on Reading: Legal, Beineke Library, Osborne Shelves, Lee Family Box 18. Lee cited civilian sources in several reported cases. See note 99 infra.

99. Early and mid-eighteenth-century citations to civilians appear in a variety of English legal sources. Reports of cases at law occasionally contain references to civilians. Chief Justice Holt cited Justinian's Institutes and Vinnius's Commentary. Coggs v. Bernard, 2 Ld. Raymond 909, 92 Eng. Rep. 107 (K.B. 1703); Rex v. Bear, British Library, Add. 35981, page 16 of case (K.B. 1699). For Holt's extensive use of civil law, see Pound, The Influence of French Law in America, 356 & n.11. Chief Justice Lee cited the Digest in Brown v. Best, 1 Wils. K.B. 174, 95 Eng. Rep. 557 (K.B. 1747), and cited both the Digest and the Code in Holdfast v. Dowsing, 2 Strange 1253, 93 Eng. Rep. 1164 (K.B. 1746). In Pillans v. Van Mierop, 3 Burrow 1663, 97 Eng. Rep. 1035 (K.B. 1765), Wilmot (J.K.B. 1755–66) cited Vinnius, Justinian, Grotius, and Pufendorf. Elsewhere, Mansfield cited, inter alia, the Institutes, the Code, the Digest, and Dr. Cowell. Windham v. Chetwynd, 1 Burrow 414, 97 Eng. Rep. 377 (K.B. 1757); and Menetone v. Athawes, 3 Burrow 1592, 97 Eng. Rep. 998 (K.B. 1764). Mansfield cited Huberus and Voet in Robinson v. Bland, 2 Burr. 1077, 97 Eng. Rep. 717 (K.B. 1760).

Citations to civil law appear relatively frequently in the reports of cases in Chancery. Maine, H., Ancient Law, ch. 3 (1861)Google Scholar. The editor of the equity reports known as “Temp. Finch” (1725) added notes comparing the cases to civil law (as explained by Domat). For the use of civil law in cases see, e.g. Lord Nottingham's Chancery Cases 26 (D.E.C. Yale ed., Selden Soc. Vol. 79) (citing civil law on conditions restraining marriage); Anon., 1 P. Wms. 267, 24 Eng. Rep. 384 (Ch. 1714) (Chancellor Cowper discussed bona mobilia and immobilia); Cook v. Oakley, 1 P. Wms. 302, 24 Eng. Rep. 399 (Ch. 1715) (Joseph Jekyll cited Cicero and the Digest); Peyton v. Bury, 2 P. Wms. 626, 24 Eng. Rep. 889 (Ch. 1731) (Jekyll cited the Institutes); Harvey v. Aston, 1 Atk. 361, 26 Eng. Rep. 230, 2 Comyns 726, 92 Eng. Rep. 1287, British Library Add. 36180, fol. 72 (Ch. 1737) (Chief Baron Comyns cited the Digest, Ulpian, Grotius, Pufendorf, and others; Chief Justice Willes of Common Pleas apparently did not cite civilian sources; Chief Justice Lee of King's Bench cited Pufendorf; Chancellor Hardwicke cited Justinian's Institutes, Gravina, and others); Omychund v. Barker, 1 Atkins 21, 26 Eng. Rep. 15 (Ch. 1744) (Tracy Atkins, counsel for defendant, cited Grotius and Voet; Murray, for the plaintiffs, cited the Decretals, Grotius, Pufendorf, the Digest, and Stair's Institutes; Clarke, for the defendant, cited Voet and others; Mr. Chute for the defendants cited Grotius and Pufendorf; Chief Justice Willes cited Grotius; Chancellor Hardwicke cited Pufendorf and Stair); Milner v. Milner, 1 Ves. Sen. 106, 27 Eng. Rep. 921 (Ch. 1748) (Hardwicke cited Baldus, the Digest, and Cujas); LeNeve v. LeNeve, 3 Atkins 646, 26 Eng. Rep. 1172 (Ch. 1748) (Hardwicke cited the Digest); Baldwin & Adler v. Rochford, 1 Wils. K.B. 229, 95 Eng. Rep. 589 (Ch. 1748) (Hardwicke cited Roman law); Chesterfield v. Jansen, 1 Atkins 301, 26 Eng. Rep. 191 (Ch. 1750) (Clarke, counsel for plaintiffs, cited the Digest; Chief Justice Lee of King's Bench cited Domat); Taylour v. Rochfort, 2 Ves. Sen. 281, 28 Eng. Rep. 182 (Ch. 1751) (citing Domat); How v. Weldon & Edwards, 2 Ves. Sen. 516, 28 Eng. Rep. 330 (Rolls 1754) (Clarke, Master of the Rolls, cited civil law generally); Evelyn v. Evelyn, Amb. 191, 27 Eng. Rep. 130, 3 Atkins 762, 26 Eng. Rep. 1237 (Ch. 1754) (Hardwicke cited the Novels and Vinnius).

Further examples of citations in cases may be found in Ram, J., The Science of Legal Judgement *69–76Google Scholar.

Common lawyers also occasionally cited civilians in pamphlets and treatises. West, who became Chancellor of Ireland in 1725, could cite Cujas' Commentaries. West, R., An Inquiry into The Manner of Creating Peers 10 (1719)Google Scholar. Baron Gilbert cited civil law in great detail in his treatise on contract. Among the sources he cited were Justinian's Institutes, Vinnius, Pufendorf, and “Lexicon Juridicati.” G. Gilbert, Of Contracts. M. Wright cited Corpus Juris Civilis, Pufendorf, and Zouch in his An Introduction to The Law of Tenures 22, 26 (1750)Google Scholar (1st pub. 1730). Blackstone, who was trained in civil law, cited Gravina on contract. 2 Blackstone, W., Commentaries at *444Google Scholar. Note that the translator of Barbeyrac's notes and preface to Pufendorf was a Mr. Carew of Lincoln's Inn.

100. For Chief Justice Lee's extensive reading notes, see note 98 supra. Chancellor Henley cited Grotius on property and discussed the law of nature in his commonplace book. British Library, Add. 26060, fols. 6 & 14. He also took notes on the civilian consensus theory of contract. See note 149 infra. An early eighteenth-century notebook that suggests study of civil law by students of common law is that of a John Wainwright, which contains both civilian and common law materials. The Exchequer cases from “Dodd's Mss.” and the treatise on Crown debts indicate that Wainwright was studying to be a common lawyer. The notebook begins, however, with notes about, and definitions from, the civil law. British Library, Hargrave 71, fols. 15–34.The definitions include several relating to civilian contract law. Id. at fol. 18. The book also contains reading notes from Duck and “Domat's Civil Law translated by Dr. Strahan.” Id. at fols. 21–31. Another notebook, Hargrave 78, similarly contains, in an early eighteenth-century hand, “Quaedam de Studio Juris recte instuendo,” Everadus Bronchorst's “Oratio de Studio Juris recte instuendo,” and various law reports, chiefly from common pleas, as well as a portion of Gilbert's Tenures. British Library, Hargrave 78. The late Mr. Francis Norman once offered for sale two early or mid-eighteenth-century volumes of manuscript “reports,” one of which he described as organized according to the plan of Justinian's Institutes. For early seventeenth-century notebooks containing both common law and civilian materials, see Folger Library MS, V.b.186 & V.a.117. See also 1 Baker, J. H., English Legal Manuscripts 59 (1975)Google Scholar.

The British Library contains a proposal for a systematic account of English law. Although it reflects some notions of the civilian jurisprudence, it is a singularly eclectic and incoherent effort. Add. 25595, fols. 177–78.

101. Simpson, , The Rise and Fall of the Legal Treatise at 656Google Scholar. Locke stressed the importance of studying “the general part of civil law.” Locke, J., Some Thoughts Concerning Education §186Google Scholar, in 9 Works of John Locke 176 (1801)Google Scholar. According to Blackstone, “Nor have the imperial laws been totally neglected even in the English nation. A general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman.” 1 Blackstone, , Commentaries at *5Google Scholar. Sir George Mackenzie's Discourse on the Four First Chapters of the Digest to show the Excellence and Usefulness of the Civil Law was said to have been “occasioned by some Discourse with Sir Robert Southwell about the Education of his Son.” British Library, Add. 38231, fol. 124. Thomas Wood wrote that “young Men [destined for the clergy] think themselves obliged to read an Institute of the Imperial Law, and a Comment upon the Title De Regulis Juris; and then to study Grotius and Pufendorf.” Wood, T., An Institute of the Laws of England 3Google Scholar. Just how general the acquaintance with civil law was meant to be for future clergymen was spelled out in a seventeenth-century manuscript study guide designed “[f]or the obtaining [of] some convenient knowledg[e] in the Civil Law, so far as it may be necessary for a divine.” Analecta seu Miscellanea de Studio Juris caesarici & pontificii, amico Juris candidata transmissa, British Library, Harleian 5758 & 6049.

102. For an illustration of how the civilian doctrine thereby was reduced to a very generalized consensus theory, see Hutchenson, F., A Short Introduction to Moral Philosophy, ch. 9 (“Of Contracts in General”) (1747)Google Scholar.

103. After 1762, however, the Inns of Court permitted Oxford and Cambridge graduates to be called to the bar after three rather than the normal five years. Duman, D., The Judicial Bench in England 1727–1875, at 34 (1982)Google Scholar.

104. Lemmings, , The Student Body at the Inns of Court Under the Later Stuarts, 58 Bull. Inst. Hist. Res. 158 (1985)CrossRef Google Scholar. Of course, not all students at the Inns became lawyers. Id. at 156.

105. Duman, D., The English and Colonial Bars in the Nineteenth Century 24 (1983)Google Scholar; Duman, , The Judicial Bench in England at 43Google Scholar. According to Dame Lucy Sutherland, “about 70 percent of the practicing lawyers who were members of Parliament in the 18th century had attended Oxford or Cambridge.” 1 The University in Society 51 (Stone, L. ed. 1974)Google Scholar.

106. Chancellor Talbot is said to have studied “Roman Civil Law” at Oxford at the beginning of the eighteenth century. 6 Campbell, J., The Lives of The Lord Chancellors 128 (1856)Google Scholar. Wilmot was said to be “well versed in the Civil Law, which he studied when at Trinity Hall, Cambridge, and frequently affirmed that he had derived great advantage from it in the course of his Profession. He considered an acquaintance with the principles of the Civil Law as the best introduction to the knowledge of Law in general, as well as a leading feature in the Laws of most nations of Europe.” Memoirs of … Sir John Eardley Wilmot, Knt. 75 (1802)Google Scholar. Incidentally, he cited civilians in King's Bench. See note 99 supra. Mansfield is said to have attended lectures on the Pandects at Oxford. Campbell, J., The Lives of The Chief Justices of England 219 (1873)Google Scholar. When Lord Abinger began his study of common law, he “was already familiar with … some portions of Grotius ‘De Jure Belli atque pacis’ “ probably as a result of his years at Trinity College, Cambridge. Scarlett, P. C., A Memoir of The Right Honorable First Lord Abinger 44 (1877)Google Scholar. Blackstone studied civil law at Oxford and took a degree. An account of the lectures of Halifax and Symonds may be found in the correspondence of the second Earl of Hardwicke with his nephew Philip Yorke. British Library, Add. 35377, fols. 131–43 (Nov.-Dec. 1774)

Much earlier, in 1594, Whitelocke—a future justice of King's Bench—was presented as a bachelor of civil law by Gentilis. According to Whitelocke, he “ever had a purpose to ayme at the study of the common law” even when he was only a student of civil law, and therefore he “began to joyne the study of the common law with the civill…” Whitelocke, J., Liber Famelicus 13–14 (1858)Google Scholar.

Some English lawyers studied civil law on the Continent. Peter King, who was Chief Justice of King's Bench and then Lord Chancellor, “attended at Leyden a course of lectures on the Pandects.” 5 Campbell, , Lives of The Lord Chancellors at 417 (1874)Google Scholar. Later, in the mid-eighteenth century, Blackstone said that “a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities … which … have been looked upon as better nurseries of the civil… law.” 1 Blackstone, , Commentaries at *5Google Scholar.

107. Burnet, G., Life of Hale 24 (1680)Google Scholar (referring to Hale's comment that the Digest was not studied); Evelyn, J., Memoirs 728Google Scholar (n.d.) (letter of March 1, 1698 to Henshaw). By the mid-eighteenth century, Blackstone had a very different complaint.

108. Roger North noted that law students could profitably vary their studies,

[f]or there are other studies more pleasant [than common law] w[hi]ch m[ay] be interwoven w[i]th the Study of the Law, w[i]th great Emolume[nt] As for instance History…. And besides History there are other sorts of learning mos[t] reasonable for a Lawyer to have some knowledge of tho ver[y] superficial; as of ye Civil Law, as a man of ye Law wou[l]d ne[ver] be willing to stand mute to ye Question, wh[a]t is ye differenc[e] between ye Civil & Common Law[,] What is ye Imperial Law[,] What is ye Cannon[,] What ye Pandects, Codes &c. It is not at all needfull to study questions in [those] Laws, but ye rise and Progres[s] of them in Gross, is but a necessary knowledg[e] & so farr takeing up butt little time, & had by meer inspection of some books, & peruseing their Introductions, it may w[i]th eas[e] & pleasure be interlac'd w[i]th ye Common Law.

North, R., Discourse on the Study of the Laws, British Library, Hargrave394Google Scholar, fol. 5. North's Discourse has conveniently been republished: Hoeflich, M. H., The Gladsome Light of Jurisprudence (1988)Google Scholar. Lord Mansfield recommended Gravina, Justinian, Vinnius, and the Pandects. He suggested Grotius, Pufendorf, and Burlamaqui for natural law. Mansfield, , Ashburton, , and Thurlow, , A Treatise on The Study of the Law 49–50 (1797)Google Scholar. Thurlow wrote that a law student should read Fiernier's history of the civil law and then should acquire “a cursory view of Justinian's code and digest, and civil law.” Id. at 68–69. See also, Wynne, E., Eunomus 145 (1822)Google Scholar (1st pub. 1774). In Harvey v. Aston, Judge Comyns said, “As to the Civil Law it is a Com[m]endable Study and may be of use to the Students of the Com[m]on Law but ought not to interfere with, much less supsede [sic: supercede] the Rules of the Com[m]on Law.” Copy of the Argument of Mr. Justice Comyns, British Library, Add. 36180, fol. 59 (Ch. 1737).

Some recommendations did not encourage the study of civil law. See Ashburton's recommendation in Mansfield, , Ashburton, and Thurlow, , A Treatise on The Study of The LawGoogle Scholar. Note also that most recommendations to study civil law did not expressly state why such study would be useful. They did, however, explain that students who limited themselves to mere technical knowledge were thereby limiting their opportunities for advancement and that civil law was one of the non-technical subjects they should pursue, the chief other such subject being history.

109. E.g., Mansfield's recommendations, A Treatise on The Study of The Law at 56 (1797)Google Scholar. See also Coquillette, Justinian in Braintree at 359.

110. North, Discourse on the Study of the Laws, fol. 5.

111. Mansfield, , Ashburton, and Thurlow, , A Treatise on the Study of the Law at 68 (1797)Google Scholar.

112. Id. at 50.

113. Wood, T., Some Thoughts Concerning the Study of the Laws of England, in An Institute of the Laws of England at 2–4Google Scholar.

114. Judd, G., Members of Parliament 1734–1832 45 (1955)Google Scholar. Blackstone complained of the practice of sending English and Scottish students abroad to study. 1 Blackstone, , Commentaries at *5Google Scholar.

115. Among the English judges with a Scottish legal or educational background were Ryder and Hardwicke. Dudley Ryder studied at Leiden. Campbell, , Lives of the Chief Justices at 123 (1857)Google Scholar. Hardwicke does not appear to have been formally educated in civil law but is said to have studied the subject to prepare himself for arguing or deciding Scottish appeals. 6 Campbell, , Lives of the Lord Chancellors at 192–93 (1857)Google Scholar. Mansfield also argued Scottish cases but had studied civil law at Oxford. For Mansfield's career, see Oldham, J., Unpublished Legal Papers of Lord Mansfield (forthcoming, Studies in Legal History, U. of N.C. Press)Google Scholar. I am grateful to Professor Oldham for generously allowing me to read and cite portions of his manuscript.

Scottish books were influential. Stair's writings were cited occasionally in the reports of eighteenth-century Chancery cases. Nottingham's citations to Bartholus in his Prolegomena came from Mackenzie's Scotch Pleadings. Lord Nottingham's “Manual of Chancery Practice” and “Prolegemena of Chancery and Equity” 167 & 200 (Yale, D. E. C. ed. 1965)Google Scholar.

116. It was not only the learning of counsel and the other Delegates to which judges were exposed. J. Oldham has found that in 1782 the opinion of four French lawyers was solicited about a prize case. In prize cases, the law applied to contracts was said to be natural law. See Oldham, , Unpublished Legal Papers of Lord MansfieldGoogle Scholar.

117. Decisions of the Court of Delegates occasionally appeared in the printed Chancery reports and, more rarely, were cited in arguments and opinions in Chancery. Judge Fortesque Aland of King's Bench took notes of some cases before the Court of Delegates in the 1720s. Fortesque Aland's Commonplace Book, British Library, Stowe 403, fol. 39.

118. See note 99 supra.

119. In Wallis v. Hodson, 2 Atkins 114, 26 Eng. Rep. 472 (Ch. 1740), Hardwicke held that the Statute of Distributions was to be construed according to the rules of the civil law but delayed making a decree until he had consulted the civilians. 2 Yorke, P. C., Life of… Hardwicke 487 (1913)Google Scholar. In Evelyn v. Evelyn (Ch. 1753), Jekyll spoke “after Advising with a Civilian.” M.S. Reports, British Library, Add. 36012, fol. 130; Amb. 192.

120. Pool v. Whishaw, cited at 3 Atkins 763, 26 Eng. Rep. 1237 (Ex. 1708); Harvey v. Aston, 1 Atkins 361, 26 Eng. Rep. 230, 2 Comyns 726, 92 Eng. Rep. 1287 (Ch. 1737); Rex v. Simpson, 3 Burr. 1463, 97 Eng. Rep. 929 (K.B. 1764).

121. Strahan's preface to his translation of Domat was quite explicit:

I must beg leave to consider how far the Reason and Equity [of civil law] may be in Service in … Courts where it has not the Force and Authority of Law. And I cannot but think that in all Courts of Equity… the knowledge of the Civil Law must be of great Service… [W]ould it not be a great Help towards forming a right judgement to inquire into the general Rules of equity. How far therefore these rules of Equity which are collected in the Body of the Civil Law, may be useful in the High Court of Chancery, and Court of Exchequer… is what I humbly submit to the great wisdom of the learned Judges, and others who are best acquainted with the practice of those Courts.

Domat, , The Civil Law in its Natural Order at xxGoogle Scholar. Strahan may have had some success, for he was employed to argue civil law for the plaintiffs in Harvey v. Aston, 1 Atkins 361, 26 Eng. Rep. 230 (Ch. 1737). When W. Nelson edited the equity reports known as “Temp. Finch” (1725), he added notes “shewing where those Decrees are founded on the Civil Law,” and in his notes he cited Strahan's Domat. Non-civilians also promoted equity's use of civil law. Basil Kennet's translation of Pufendorf's Law of Nature and Nations (1703) was dedicated to Lord Keeper Wright, “the Guardian and Dispenser of Publick Equity [and] Patron of the Law of Nature and Nations”;

122. Ballow, H., A Treatise of Equity (1737)Google Scholar. Note that Lord Macclesfield's 1718 scheme for university reform proposed, among other things, a professorship of the “Law of Nature and Nations.” Wordsworth, C., Scholae Academicae 146 (1877)Google Scholar. Note also that the running titles of the two halves of Gilbert's account of Chancery were “Forum Romanum” and “Lex Praetoria.” Gilbert, G., The History and Practice of the High Court of Chancery (1758)Google Scholar.

123. Stein, , The Attraction of Civil Law in Post Revolutionary America, 52 U. Va. L. Rev. 403, 404–7 (1966)Google Scholar; Radin, , The Rivalry of Common-Law and Civil-Law Ideas in the American Colonies, in Law—A Century of Progress 404, 420 (1937)Google Scholar.

124. Coquillette, , Justinian in Braintree at 359Google Scholar.

125. Bryson, W. H., Census of Law Books in Colonial Virginia 27–30 (1978)Google Scholar. The other colonies are not as well documented. In 1746, the large law library of Ralph Assheton in Philadelphia contained Grotius, Pufendorf, Domat, and Justinian's “Works.” Wolf, E. II, The Library of Ralph Assheton, 58 Papers of the Bibliographical Society of America 345 (1964)CrossRef Google Scholar. A Maryland lawyer, George Garnet, possessed Grotius and Justinian's Institutes, among other law books. In the late 1730s, Mathias Harris— another Maryland lawyer—read a volume by Pufendorf. Wheeler, , Reading Interests of the Professional Classes in Colonial Maryland, 1700–1776, 36 Md. Hist. Mag., 184, 281, 286 & 293 (1941)Google Scholar. In the 1720s, Maryland's Attorney General, Dulany, cited Grotius and Pufendorf in his argument that English law applied in the Province. In the same controversy, the Rev. J. Eversfield referred to the Scots' use of civil law. By the time of his death, he had acquired Calvin's Institutes and two editions of Pufendorf. St.Sioussat, G. L., The English Statutes in Maryland 54–55 (1901)Google Scholar.

In 1760, the New York attorney, William Smith, recommended to a young law student that he read, inter alia, Wood's Institutes of the Civil Law and Pufendorf's Whole Duty of Man. Parrish, , Law Books and Legal Publishing in America, 1760–1840, 72 Law Library J. 355, 356 (1979)Google Scholar. Parrish also describes post-Revolutionary legal reading lists that include works on natural or civil law.

126. Waddill v. Chamberlayne, Jefferson 10, 14 (1735); Anderson v. Winston, Jefferson 24, 28–29 (1736); Jones v. Porter, Jefferson 62, 66 (1740); Bradford v. Bradford, Jefferson 86 (1769); Carter v. Webb, Jefferson 123, 130 (1772). These cases are cited and briefly discussed by Hoffman, , Classics in the Courts of the United States, 1790–1800, 22 Am. J. Legal Hist. 55, 69 (1978)CrossRef Google Scholar.

Reports from other colonies are not plentiful, but those from the New York Admiralty Court survive and reveal that the Court cited civil law at least once, in the 1750s. Reports of Cases in the Vice Admiralty of the Province of New York and in the Court of Admiralty of the State of New York, 1715–1788, at 109–10 (1925)Google Scholar.

127. In general, see Haddow, A., Political Science in American Colleges and Universities 1636–1900, chs. 1–2 & 4–6 (1969)Google Scholar. In his proposal for what became the University of Pennsylvania, Franklin suggested that youths study “the Grounds of Law and legal Justice.” He quoted Locke's recommendation to read Tully's Offices, Pufendorf, and Grotius. Franklin, B., Proposals for the Education of Youth in Pennsylvania 25 (1927)Google Scholar (1 st pub. 1749). In Donald Robertson's school, Madison read Justinian. 1 Brant, I., James Madison 59 (1941)Google Scholar. Note that Hutcheson presented a very generalized version of the civilian consensus theory in what became a standard text for American schools. Hutcheson, F., A Short Introductionl to Moral Philosophy, ch. 9, (“Of Contracts in General”) (1747)Google Scholar. For Hutcheson's influence in America, see Robbins, C., “When it is that Colonies May Turn Independent:” An Analysis of the Environment and Politics of Francis Hutcheson, 11 WM. & Mary Q. 214 (3rd ser. 1954)CrossRef Google Scholar.

128. The evidence that post-Revolutionary Americans read and appreciated civil and natural law is extensive. For discussion of some of it see Miller, P., The Life of the Mind in America 164–71 (1965)Google Scholar; Stein, The Attraction of the Civil Law. See also Witherspoon, J., An Annotated Edition of Lectures on Moral Philosophy, Lecture XV (on contract) (1982)Google Scholar.

129. Hoeflich, Roman and Civil Law in American Legal Education and Research.

130. See note 87 supra.

131. Simpson, Innovation at 254–56.

132. English civilians were prolix on this subject. Wiseman wrote that the Roman state “reduced [its law] to a perfect and complete Art and Science of Law, whereby the right skill and way of doing the purest and most natural justice, whatsoever the case may be, may be taught and known.” Wiseman, R., The Law of Laws; or, The Excellency of The Civil Law… 189 (1657)Google Scholar. Wood wrote that “there is nothing more necessary in all Sciences, than to understand the first Principles of them … [T]hey may serve for a Foundation to all the Particulars which depend upon them.” A Treatise of The First Principles of Law in General 2 (1st pub. 1705 and republished in 1721 and 1730 in Wood, A New Institute)Google Scholar. (The Treatise was translated from Domat but without acknowledgement. See 12 Holdsworth, W. S., History of English Law 427 (1936)Google Scholar, and Simpson, , The Rise and Fall of the Legal Treatise at 656Google Scholar.) In his translation of Domat, Strahan wrote that “the Author's Design… was to give the World … a Collection out of the Body of the Civil Law of all of the Natural Rules of Justice and Equity…. It is most certain, that it is in the Body of the Civil Law that we have the most complete, if not the only Collection of the Rules of Natural Reason and Equity, which are to govern the Actions of Mankind.” W. Strahan, Translator's Preface to Domat, J., The Civil Law in its Natural Order Together with the Publick Law ix (1738) (1st pub. 1722)Google Scholar. Bever wrote that “those fundamental rules of natural justice and equity… are to be found in the writings of the ancient Roman lawyers, from whence they have been copied, with large improvements, by the most eminent civilians….” Bever, , A Discourse on The Study of Jurisprudence (1766)Google Scholar. “[W]e shall now represent it to your view under the more enlarged character of jurisprudence; and as the most complete collection, now extant of the natural rules of justice and reason….” Id. at 23. “This plan of education has given a peculiarly scientifical cast to the civil law; has naturally fitted it to general use; and has maintained its right to the title of universal law, above any other in the known world.” Id. at 24. George Turnbull wrote in the Preface to his translation of Heineccius that “every science hath its elements; and this treatise at least well deserves to be called an excellent introduction to the science of laws.” Turnbull, Preface to Heineccius, J. G., A Methodical System of Universal Law: or, The Laws of Nature and Nations Deduced from Certain Principles … (1741)Google Scholar. Turnbull hoped to improve the scientific study of law and thus in A Discourse Upon The Nature and Origin of Moral and Civil Laws (1740)Google Scholar, appended to his translation of Heineccius, he attempted “to introduce the experimental way of reasoning into morals, or to deduce human duties from internal principles and dispositions in the human mind.” Turnbull, Preface to Heineccius, A Methodical System.

Turning now to common lawyers, Mathew Hale “often said that the true grounds and reasons of Law were so well delivered in the Digest, that a man could never understand law as a science so well as by seeking it there; and therefore he lamented much that it was so little studied in England.” Burnet, G., Life of … Hale 24 (1680)Google Scholar. When the owner of Hargrave 71, a commonplace book, took notes from Strahan's Domat, he noted that law is a science. British Library, Hargrave 71, fol. 29.Roger North included law among the sciences. North, Discourse on the Study of the Laws, fol. 5. Wilmot “often declared his partiality for the study of [the common law] as a science,” an attitude that probably was related to the fact that he was “well versed in the Civil Law.” Memoirs of … Sir John Eardley Wilmot, Knt. 75 (1802)Google Scholar. See also 1 Blackstone, , Commentaries at *4Google Scholar. For American examples, see Miller, , The Life of the Mind in America at 156–64Google Scholar. See also Sullivan, J., History of Land Titles in Massachusetts (1801)Google Scholar.

That civil law was a science was confirmed by Justinian's Institutes themselves. Institutes, Proemium, §§ 3 & 4.

For a recent and sophisticated discussion of the treatment of law as a science, see Hoeflich, , Law and Geometry: Legal Science from Leibniz to Langdell, 30 Am. J. Legal Hist. 95 (1980)CrossRef Google Scholar. B. Shapiro has shown that the “scientific” study of common law in the seventeenth century had some connections to study of the natural sciences. Shapiro, , Law and Science in Seventeenth-Century England, 21 Stan. L. Rev. 727 (1969)CrossRef Google Scholar.

133. In 1705, Thomas Wood wrote that “[T]he Common and Civil Laws had not the same Root or Stock; yet by inoculating and grafting, the Body and Branches do seem at this day to be almost of a piece…. A great Part of the Civil Law, is Part of the Law of England, and interwoven with it throughout.” Wood, , A New Institute at 87 (1730)Google Scholar; apparently plagiarized by Ayliffe, , A New Pandect of Roman Law at xlvii–xlviii (1734)Google Scholar. The plagiarism is discussed by Simpson, , The Rise and Fall of the Legal Treatise at 657Google Scholar. Bever wrote: “Neither can it be any affront to or disparagement to our constitution, to say, that it aims at all possible perfection; which can be effected by no surer means, than by culling the choicest flowers out of every country in the universe, to adorn its own; and by a new, and more refined art of cultivation, to give them a fresh beauty, to which they were before entire strangers. And as these exotic plants have long taken root, their fruits are as much the property of those who transplanted and nourished them, as if they had been the original natives of the British soil.” Bever, , A Discourse on The Study of Jurisprudence and The Civil Law at 25 (1766)Google Scholar.

134. In 1703, Holt turned to Bracton, Justinian, and Vinnius to reveal “the Law of the World [and] common and natural Justice” as it related to bailments. Coggs v. Barnard, British Library, Add. 35981, at fol. 250 (K.B. 1703). Holt's method is more clearly apparent from this manuscript than from the printed report at 2 Ld. Raymond 909, 92 Eng. Rep. 107. The manuscript version was printed in The Life of … Holt (1764). In another case, Holt said that he was loath to cite civil law but that “inasmuch as the laws of all nations are doubtless raised out of the ruins of the civil law, as all governments are sprung out of the ruins of the Roman Empire, it must be owned that the principles of our law are borrowed from the civil law, [and] therefore [are] grounded upon the same reason in many things.” Lane v. Sir Robert Cotton, 12 Modern 472, 482, 88 Eng. Rep. 1458, 1463 (K.B. 1701). For the later use of civil law to elucidate bailments, see G. Gilbert, Of Contracts; Ayliffe, , Law of Pawns (1732)Google Scholar; Jones, W., An Essay on the Law of Bailments (1781)Google Scholar.

135. Ryall v. Rowles, 1 Ves. Sen. 348, 354, 27 Eng. Rep. 1074, 1078 (Ch. 1750).

136. Harvey v. Aston, 2 Comyns 726, 734, 92 Eng. Rep. 1287, 1291 (Ch. 1737).

137. Harvey v. Aston, 1 Atkins 361, 375, 26 Eng. Rep. 230, 239. See also the arguments of counsel on this point. Hardwicke concurred with the opinion of Comyns and the other judges but was critical of at least some of the citations to civil law.

138. Copy of the Argument of Mr. Justice Comyns, British Library, Add. 36180, fol. 70.

139. In addition to the examples already cited, the civilian doctrine of equality clearly influenced the Court of Chancery in certain contract cases involving seamen. In How v. Weldon & Edwards, 2 Ves. Sen. 516, 28 Eng. Rep. 330 (Ch. 1754), a sailor's assignment of his prize money in exchange for a very small consideration was set aside for fraud. Thomas Clarke, Master of the Rolls, said, “[T]he price, for which the share was parted with, is about a fourth part. By the rules of the civil law, if half had been paid, it would have been a mere nullity. Our law differs from that; but though the inadequateness of the value will not of itself be sufficient to set aside the contract, yet it is a very material ingredient, and, with other things, will go a great way toward it.” 2 Ves. Sen. at 518, 28 Eng. Rep. at 331.See also Baldwin & Adler v. Rochford, 1 Wils. K.B. 229, 95 Eng. Rep. 589 (Ch. 1748); and Taylour v. Rochfort, 2 Ves. Sen. 281, 28 Eng. Rep. 182 (Ch. 1751).

Civil law usually played a less dramatic role in Chancery. It was used extensively in the traditional area of legacies and in its jurisprudential role as a means of confirming the equitableness of common law rules.

Hardwicke has a reputation for having relied considerably on civil law. He did employ civil law frequently, but he carefully stated that civil law was relevant only to the extent that it had been received in England. Most of his discussions of civil law give fairly narrow justifications for the use of civilian doctrine, such as the tradition of using civil law with respect to wills and the need for uniformity of judgments in different courts. See 2 Yorke, P. C., Life of the Earl of Hardwicke 486–88 (1913)Google Scholar. Perhaps this was the product of caution. In this context, it should be noted that Mansfield appears occasionally to have employed civilian ideas, but he was relatively sparing in his references to civil law outside of areas of its traditional use. In light of the criticisms leveled at both judges for endangering common law with civilian doctrine, it is possible that they felt they had to be circumspect in their discussions of civil law. Both judges could, however, be quite critical of certain uses of civil law. In Harvey v. Aston (Ch. 1737), Hardwicke was critical of some of the citations to civil law. See Lord Chancellor's Argnt., British Library, Add. 36180, fol. 80.(Given Hardwicke's comment, it is interesting that the printed version of Comyn's opinion did not contain one of Comyn's arguments about the role of civil law, including the passage quoted in the text accompanying note 138 supra.)

Various common law writers discussed the use of civilian juriprudence to supplement common law. Woodeson recalled a remark of Selden that Bracton and other early English authors had borrowed from Roman writings “not because they thought any foreign code could bind the subjects of this realm, but in order, that where the laws of England were silent, they might confirm their own problematical or conjectural position of natural reason, by the doctrines of the Civilians, or, where both laws were consonent to each other, might by such citation illustrate and explain our municipal institutions.” Woodeson, R., Elements of Jurisprudence 85 (1783)Google Scholar. (The reference was to John Selden, Ad Fletam Dissertatio 39 [1925].) Even while discussing the importance of studying common law, Blackstone said, “Far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason.” 1 Blackstone, , Commentaries at *5Google Scholar. Students at Northampton learned that:

Many of the principles of the Common Law were doubtless derived from the Civil Law so altered as to adapt them to the State of Society in which they were used—a system carried to a degree of conformity with natural reason attained by no other. The study of this system offers a remedy and reasonable solution of all new cases presenting themselves and was recurred to by common consent and practice; not indeed as laws formally established but as a ratio scripta, the dictate in all cases of that sound reason, which should constitute the law of every country. For this purpose and in this way ought this code now be studied.

S. Howe and J. H. Ashmun, Lectures (notes of lectures given at Northampton Law School 1825–27) in Beineke Library, Yale University, Mss. B, L88, vol. 4, page 25. See also Hoeflich, Roman and Civil Law in American Legal Education and Research at 723–28; Hoeflich, , John Austin and Joseph Story: Two Nineteenth-Century Perspectives on the Utility of the Civil Law for the Common Lawyer, 29 A.M. J. Legal Hist. 64–71 (1985)Google Scholar; Mackintosh, J., A Discourse on Study of The Law of Nature and Nations; Introductory to a Course of Lectures on that Science 59 (1799)Google Scholar (citing Holt); Hoffman, D., A Course of Legal Study 500–11 (1836)Google Scholar.

140. Pillans and Rose v. Van Mierop and Hopkins, 3 Burr. 1663, 97 Eng. Rep. 1035 (1765).

141. Rann v. Hughes, 4 Brown 27, 2 Eng. Rep. 18, 7 T.R. 350n., 101 Eng. Rep. 1014 (H.L. 1778) (rejecting Pillans).

142. Similarly, Foster and Camden disagreed with Mansfield when they thought he was using Roman law to avoid the effect of relatively recent statutes. Camden even opined that Roman law was irrelevant in Westminster Hall. Oldham, , Unpublished Legal Papers of Lord Mansfield (forthcoming)Google Scholar. At the other end of the spectrum of opinion, Evans wrote:

I am not aware that I have any favorite doctrines or theories to support, except the two propositions that the decisions which result from the principles of substantial justice shall not be sacrificed to the subtleties of artificial reasoning, where the opposite course can be pursued without an improper contravention of legal authority, and the courts of justice should not consider themselves restricted from the correction of erroneous precedents, where the benefit of the correction would be general, and the detriment confined to the parties who in the particular case had been misled by the preceding determination.

Evans, Introduction to Pothier, M., A Treatise on the Law of Obligations on Contracts 98–99 (1853)Google Scholar.

143. Simpson, Innovation at 247.

144. Id. at 254 & 277. In connection with some doctrines—particularly remoteness of damages and frustration of purpose—Simpson suggests that common lawyers modified civilian doctrine. In general, however, he does not argue that common lawyers adapted civilian consensus theory.

145. See the works cited in note 93 supra and in the text at note 89 supra.

146. Offer and acceptance were not always discussed in terms of “offers.” Some civilians dealt with what can be considered essentially the same issue when examining the “acceptance” of promises. E.g., Grotius, , The Rights of War and Peace, ch. 11Google Scholar.

147. Gilbert, Of Contracts, fol. 43. In several places, Gilbert referred to contract as an “act of the mind.”

148. Ballow, H., A Treatise of Equity (1737)Google Scholar.

149. Henley's notes entitled “Of Contracts” began as follows: “A Contract is an Obligation to do some Act under a penalty in Non-performance. [A]n Obligation to do any thing contrary to Law is void for Jus publicum privatorum pactis mutari non potest. In all Contract, we are to Consider ye persons; That either of y'm is not ignorant of what he contracts for. The intention of the parties. The time & the occassion. Contracts are generally expressed in writing [for] facility of proof, tho' they are equally valid w[ithou]t it….” Henley's Commonplace Book, British Library, Add. 26060, fol. 14. The commonplace book also contains Henley notes “Of the Law of Nature.” Id. at fol. 17.See also Hutcheson, , A Short Introduction to Moral Philosophy, ch. 9 (“Of Contracts in General”)Google Scholar.

150. The general, conceptual nature of the theory also stemmed from the artificiality of the common law remedies for contracts. These were so distinct from the consensual reality that common lawyers felt little temptation to try to relate the two. Thus, they developed the consensus analysis unfettered by practical concerns about remedies.

151. Gilbert wrote that “the Justice of the Demand Arises from the Intention of being Obliged on the Consideration received.” Gilbert, Of Contracts, fol. 40. He also explained that “Where the Solemnitys of Law are wanting to shew a serious Intention of the partys [such intention] must be Collected from the Consideration.” Id. at fol. 43.

152. See notes 140 and 141 supra.

153. Horwitz has argued that eighteenth-century contract law posed other obstacles to commerce that were abandoned in the early nineteenth century. Horwitz, Transformation, ch. 6. As Simpson shows, however, these arguments are based on a misapprehension of eighteenth-century contract law. Simpson, The Horwitz Thesis.

The consideration requirement was, to some degree, abandoned in cases of so-called moral consideration—a doctrine that probably reflected some civilian influence. Wennail v. Adney, 3 B. & P. 249, 127 Eng. Rep. 138 (1802), reporter's note. Plucknett, T. F. T., A Concise History of The Common Law 654–55 (1956)Google Scholar.

154. In contrast, some historians have suggested that consensus and fairness were inconsistent with one another. E.g., Atiyah, , Rise and Fall at 167–84Google Scholar.

155. English equity lawyers appropriated the civilian name and concept of “equality” for a variety of singularly English or equitable purposes. They clearly used the doctrine of equality in certain cases of the 1740s involving seamen and probably also in others concerning expectant heirs. See note 139 supra. Nevertheless, those cases represented relatively minor categories of contracts and referred to the civilian doctrine of equality to protect incompetents rather than to impose fairness generally. See note 171 infra. English lawyers also appropriated the idea of equality to describe general policies of equity. For example, Francis, in his Maxims of Equity (1727), employed the rubric, “equality is equity,” but under that heading simply summarized common law cases. Thus, he employed a civilian idea to organize English cases. He thereby popularized a version of equality that was much weaker than the civilian doctrine and that could develop within traditional policies of equity. Similarly, lawyers in equity sometimes used merely the language of equality. A late but interesting example is Kennedy v. Lee, in which Eldon stated that each party must have a “fair understanding” of the contract. In the next sentence, however, he held that the defendant's failure to understand that there was a contract did not prevent formation of a contract. Kennedy v. Lee, 3 Mer. 441, 447, 36 Eng. Rep. 170, 172 (Ch. 1817). Nevertheless, the use of civilian terms in connection with common law had consequences. By supplying definitions and phrases that were potentially discordant with existing doctrine, civil law may have subtly contributed to later doctrinal developments. See also 1 Ballow, H., A Treatise of Equity 116–23 (Fonblanque, ed. 1793)Google Scholar.

Turning to courts of law, the doctrine of implied warranty, which reflected civilian ideas, turned up chiefly in connection with sales of horses and slaves, and even in those situations had a mixed reception. See Simpson, The Horwitz Thesis; Oldham, Reinterpretations of Eighteenth-Century English Contract Law, forthcoming article in Geo. L. Rev. I wish to thank Professor Oldham for generously allowing me to read and cite his article.

The doctrine of equality and other, related civilian thought may have been among the ideas that influenced Mansfield in Carter v. Boehm to require disclosure of facts not known to one of the contracting parties. 3 Burrow 1905, 97 Eng. Rep. 1162 (K.B. 1766). Mansfield's language in Carter referred to contracts generally, but it is no coincidence that Carter was an insurance case and that it was followed only in other insurance cases. Although a similar disclosure requirement was imposed by Lord Kenyon in a case involving sale of a ship with latent defects, Mellish v. Motteaux, Peake 156, 170 Eng. Rep. 113 (1792), that requirement was rejected shortly thereafter. Baglehole V. Walters, 3 Camp. 154, 170 Eng. Rep. 1338 (1811). Simpson discusses these cases in The Horwitz Thesis at 580–85. In America, an obligation to disclose was not widely accepted. It appeared in some early nineteenth-century opinions but not without criticism. Bowman v. John & James Bates, 5 Ky. 47 (1810) (Clarke, J., dissenting); Frazer v. Gervais, 1 Miss. 72 (1818) (criticized by reporter). In Louisiana, paternalistic, civilian requirements could suffer under the scrutiny of federal courts. Laidlaw v. Organ, 15 U.S. 178 (1817).

156. Rutherforth, T., Institutes of Natural Law 112 (1832)Google Scholar (1 st pub. 1754–56). Francis Hutcheson's Short Introduction to Moral Philosophy took a position similar to that which Rutherforth attributed to his students. In a chapter on “Contracts in General,” Hutcheson propounded an abstract consensus theory drawn from civil law, but he explained that:

[T]ho' a good man would not take any advantage of another's weakness or ignorance in his dealings, nay, would frequently free another from his bargain which became highly inconvenient to him, and not very necessary to himself, provided any loss he sustained were made good; yet there is such a manifest necessity of maintaining faith in commerce, and excluding the cavils which might be made from some smaller inconveniencies to one or other of the parties, that in the proper matters of commerce, the administration of which, the law of nature commits to human prudences, our covenants, tho' rashly made, must be valid and constitute at least such external rights to others, as must for the common utility be maintained, though perhaps a good man would not insist on them…. [We]… ought to observe our covenant; according to an old rule, that “what ought not to have been done, yet in many cases when done, is obligatory.”

Hutcheson, , A Short Introduction to Moral Philosophy at 149 (1788)Google Scholar. The Short Introduction was a standard text in American schools. In the previous century, Selden wrote:

if we once grant we may recede from Contracts upon any incoveniency that may afterwards happen, we shall have no Bargain kept Keep your Contracts, so far a Divine goes, but how to make our Contracts is left to ourselves; and as we agree upon the conveying of this House, or that Land, so it must be. If you offer me a Hundred Pounds for my Glove, I tell you what my Glove is, a plain Glove, pretend no Virtue in it, the Glove is my own, I profess not to sell Gloves, and we agree for an hundred Pounds, I do not know why I may not with a safe Conscience take it. The want of that common Obvious Distinction of Jus praeceptirum, and Jus permissivum, does much trouble Men.

Selden, J., Table Talk 140 (1860)Google Scholar. See also Ballow, , A Treatise of Equity 109 n.(x) (1793)Google Scholar; Verplanck, G., An Essay on The Doctrine of Contracts 96–97 (1825)Google Scholar. Verplanck did not accept all of the civilian doctrine on equality and argued for a milder version of it. Even so, as Simpson has pointed out, his book was largely ignored. Simpson, The Horwitz Thesis at 599. For a critical review of Verplanck, see 1 AMER. Q. REV. 106 (1827).

157. W. H. Hamilton has argued that the doctrine of caveat emptor is not very ancient. Hamilton, , The Ancient Doctrine of Caveat Emptor, 40 Yale L.J. 1133 (1931)CrossRef Google Scholar. He vaguely disparages the early seventeenth-century references to the doctrine and suggests that caveat emptor prevailed in the common law courts because of the influence of late eighteenthand nineteenth-century individualism. Hamilton may be partially correct as to the use of the phrase “caveat emptor,” but with respect to substantive law he is mistaken. Hamilton's attempt to show that common law courts approached contracts with a “paternal solicitude” is based largely on the decisions of local or noncommon law jurisdictions and on local and Parliamentary regulation. None of this evidence indicates that common law courts generally took a paternalistic approach to contracts. Indeed, the need for local ordinances and Parliamentary enactments suggests the contrary. The small number of law-merchant cases cited by Hamilton do not support his position. They are cases in which a warranty or promise was made and breached (and are from a period in which most covenants did not have to be in writing). They do not reveal any paternalistic policies of the courts, except to enforce contracts as made. The fact that the buyers in these and other cases contracted for goods of specified quality suggests that the buyers were providing themselves with protections common law courts did not automatically offer. Hamilton does not even discuss penal bonds or contracts for land. Restraints on freedom of contract in England and America usually did not operate by means of general contract law.

158. See text at note 164 infra.

159. See text at notes 151–57 supra.

160. Domat, J., 1 The Civil Law in Its Natural Order Together With the Publick Law 31 (1737)Google Scholar. Other natural lawyers and civilians also made such observations and could be more explicit than Domat about the role of contracts in commerce. E.g., 1 Heineccius, , A Methodical System of Universal Law 250 (1.13.325) (1741)Google Scholar. See also note 191 infra.

161. Id. at 44. Of course, this language is rather vague, and the degree of liberty to which it refers depends on the meaning of “contrary to law” and “good manners.” Nevertheless, these statements suggest considerable freedom in contracting and could have been interpreted by common lawyers to have an even broader meaning than Domat intended. See also Domat's discussions of how buyers and sellers set prices and of the effects of “plenty or scarcity.” Id. at 62 & 67, which drew upon Grotius's discussion of markets. Grotius, , The Rights of War and Peace, ch. 12, §14Google Scholar.

162. See text at note 272 infra.

163. See note 269 infra.

164. For example, see the views of Evans and Metcalf discussed, respectively, in notes 142 supra and 252 infra. See also J. Fonblanque's note on consideration in 1 Ballow, H., A Treatise of Equity 326–37, n.(a) (Fonblanque ed. 1793)Google Scholar; Verplanck, G., An Essay on The Doctrine of Contracts at 96–97 (1825)Google Scholar.

165. See views of Ayliffe and Brown quoted in text at notes 175 and 176 infra. After discussing the role of civil law as supplying rational rules where the common law was silent, Hoffman quoted Arthur Brown for confirmation. The quotation concluded: “on the subject of contracts, covenants and obligations, those vast fields of modern controversy; in short, on all things called by some metaphysical writers ‘things purely rational,’ ‘moral entities,’ ‘entia rationis,’ that system was silent.” Hoffman, D., A Course of Legal Study 510 (1936)Google Scholar. Hoffman wrote that “in the law of Contracts … we should appeal to the Civil Law, with as much confidence that we were resorting to an alternative source, (when our own special provisions have failed,) as we now do to the reports of decisions in Westminster Hall, on the law of bills of exchange, policies of insurance, or charter parties.” Id. at 508.

166. One may wonder how a theory based on subjective intent could develop without difficulty in an action based on the apparently objective foundation of promise. This question may appear to require particular attention, since the switch from a subjective to an objective theory has at times been portrayed as a rather late and dramatic development. E.g., Gilmore, , The Death of Contract at 31 & 41–45Google Scholar. In fact, the problem can be resolved briefly, since the subjectiveness of the subjective theory was rather academic. The civilians themselves acknowledged in places the necessity of some objective indicia of intent. More important, the rules of evidence and construction typically did what substantive law and legal theory sometimes did not. As Chancellor Eldon said of an unfortunate defendant in Chancery, “Mr. Lee,… was not aware of the precise effect of this correspondence; but, I am afraid, be that as it may, if the letters amount to a contract, so considered,… the Plaintiff has a right to have the contract specifically enforced….” After reargument, Eldon elaborated:

the party seeking specific performance of such an agreement, is bound to find in the correspondence, not merely a treaty—still less, a proposal—for an agreement; but a treaty, with reference to which mutual consent can be clearly demonstrated, … I do not mean … that I am to see that both parties really meant the same precise thing, but only that both actually gave their assent to that proposition which, be it what it may, de facto arises out of the terms of the correspondence. The same construction must be put upon a letter, or a series of letters, that would be applied to the case of a formal instrument—the only difference … being, that a letter, or a correspondence, is generally more loose and inaccurate …

Kennedy v. Lee, 3 Mer. 442, 447 & 451, 36 Eng. Rep. 170, 172 & 174 (Ch. 1817). This objective approach was especially likely in courts of law, where parties could not testify.

The Field Code of Civil Procedure illustrates the development of the objective theory from the intertwining of civilian jurisprudence with common law rules on evidence and construction. When Field presented his somewhat “objective” analysis of mistake in understanding, he did so in a rule of evidence and noted that he had borrowed his rule from Paley's Moral Philsophy. The Code of Civil Procedure of the State of New York—Reported Complete 708–09, §1697 (1850)Google Scholar. He thereby revealed his awareness of the interchangeability of evidentiary and substantive rules and acknowledged his. Indebtedness to eighteenth-century jurisprudence. (Although not an exposition of civil law, Paley's Moral Philosophy was closely related to the civilian jurisprudence.) By looking back at the “objective theory” without considering its jurisprudential and evidentiary origins, historians and lawyers have exaggerated the suddenness of the theory's development and the historical importance of the objective-subjective distinction.

For a criticism of Gilmore's account of the objective theory, see Birmingham, , Holmes on “Peerless”: Raffles v. Wichelhaus and the Objective Theory of Contract, 47 U. Pitt. L. Rev. 183 (1985)Google Scholar.

167. To demonstrate that the theory appealed to eighteenth-century common lawyers, it is necessary to delve into the more complicated question of why it was attractive. As explained above, the issue of why the theory appealed to lawyers is not the main focus of this article and therefore is examined here only briefly.

168. Atiyah, , Rise and Fall; Horwitz, Transformation, ch. 6.Google Scholar

169. Simpson, , The Horwitz Thesis at 591Google Scholar.

170. Atiyah identifies consensus theory with contractual freedom and therefore apparently assumes that an “equitable” or restitutionary understanding of contract law was largely inconsistent with consensus analysis. Atiyah, , Rise and Fall at 167–84Google Scholar. In fact, those lawyers and judges who directly advocated an equitable approach to contract typically did so in the context of the civilian jurisprudence. E.g., Ballow, Verplanck, and, to some extent, Mansfield. In other words, the most explicit arguments for an equitable approach to contract were associated with civilian consensus theory. See notes 155 and 156 supra. This is not to say that eighteenth-century contract law was restitutionary or equitable. See note 171 infra.

171. In response to the argument that consensus analysis appealed to eighteenth-century common lawyers, it may be objected that a restitutionary and equitable notion of contract prevailed in eighteenth-century contract law and precluded the possibility of consensus analysis. Such a response is suggested by the work of Horwitz and Atiyah. Horwitz's views are criticized by Simpson, The Horwitz Thesis, which in many respects is also applicable to Atiyah. Atiyah's views, however, have not been discussed in as much detail as Horwitz's and therefore will be briefly examined. Much of Atiyah's argument about the influence of liberal thought on nineteenth-century contract is (like Horwitz's argument) based on a misunderstanding of prior contract law.

If contract law was viewed from a restitutionary perspective, it would be puzzling that any purely executory contracts were even considered enforceable. Yet some cases of special assumpsit, such as cases for wagers dating from the sixteenth century and later, were purely executory. These points are made by Black, Book Review, 79 Mich. L. Rev. 933 (1981), and by Baker, Book Review, 43 Mod. L. Rev. 467, 468 (1980). For evidence that executory contracts were enforceable, see Gilbert, Of Contracts, fol. 52; 1 Modern Entries 301–2.

Similarly, the fact that many agreements brought before the courts were already partially performed by one of the parties, does not require, let alone suggest, that lawyers had a restitutionary or equitable understanding of contract. When a party has performed only part of his obligations under an agreement and nevertheless can recover on the agreement, he is unlikely to be making a restitutionary claim. Thus, a “restitutionary” or “equitable” understanding cannot explain any of the cases of special assumpsit in which the plaintiffs consideration was partly executory. Eighteenthcentury writers appear to have understood this: although they wrote that actions of indebitatus assumpsit were restitutionary, they described actions of special assumpsit as being on the contract. Eighteenth-century lawyers could talk about restitution when they wished, and clearly they did not consider actions of special assumpsit to be restitutionary. Indeed even indebitatus assumpsit was restitutionary only in a limited sense. See note 55 supra.

Atiyah suggests that duress of goods was a defense to a claim for breach of contract prior to the mid-nineteenth century. See, however, note 257 infra and accompanying text.

Atiyah's belief that eighteenth-century Chancellors would undo unfair contracts is misfounded. To the extent that Chancellors reformed contracts to make them fair, they typically did so in cases involving questions of free will and competency. Reported cases requiring exchanges to be fair usually concerned persons such as sailors and expectant heirs who apparently were considered incompetent as to certain financial matters. These points are made by Black, Book Review, 79 Mich. L. Rev. at 934–35, by Baker, Book Review, 43 Mod. L. Rev. at 469, and by Simpson in his discussion of Horwitz. Simpson, The Horwitz Thesis at 561–66.

Atiyah's suggestion that juries used their discretion in awarding damages to rectify unfair contracts has already been answered briefly by Black and Baker and indirectly by Simpson's response to Horwitz. Id. at 547–61 & 573–80. A more direct discussion of Atiyah's arguments may nevertheless be useful. Atiyah cites only two cases in which juries purportedly reduced damages to the amount of a fair price. Atiyah, Rise and Fall at 149. In both cases, the plaintiffs sued in assumpsit on trick contracts, e.g., the sale of a horse for “a barley-corn a nail [in the horse's hooves], doubling it for every nail,… which … came to five hundred quarters of barley.” In that case, the jury was directed to award the value of the horse. James v. Morgan, 1 Lev. 111, 83 Eng. Rep. 323 (K.B. 1663). In the other, similar case, the first was cited with approval, although a settlement precluded judgment. Thornborow v. Whitacre, 2 Ld. Raymond 1164, 92 Eng. Rep. 270 (K.B. 1705). The fact that the judge in the first case directed the jury to award damages in the amount of the value of the horse is hardly evidence that the jurors would have reduced the damages had the matter been left to the jurors’ discretion. Moreover, these cases do not even represent a rule of law applicable to contracts generally. On the contrary, these cases were quite distinctive, since the defendants apparently did not understand the amount of grain they promised. There is no evidence that juries were directed to limit damages in most other cases.

Atiyah also cites two dicta that juries could “mitigate” damages. Atiyah, Rise and Fall at 149. Such statements should not be understood, however, to refer to a reduction of damages to produce a fair contract. For example, Atiyah cites a case in which Judge Powell said that a “jury may mitigate the damages.” Mitchell v. Reynolds, 10 Mod. 27, 29, 88 Eng. Rep. 610, 611 (K.B. 1711). Yet reports of the case suggest that the “mitigation” referred to was the ability of a jury to award “damages” rather than a higher, stated penalty. 1 P. Williams 181, 194, 24 Eng. Rep. 347, 352. Chief Justice Parker even said that “as a jury may give less than the penalty, so they may give more.” 10 Mod. at 30, 88 Eng. Rep. 611. Atiyah also cites a reference to “mitigation” of damages in a case in which a vendee of freehold refused to complete his payment when he discovered that part of the land to be conveyed was copyhold. The Court of Chancery refused to grant the vendor's request for specific performance and, instead, ordered the vendor to return the payment already made. The Court added that it was a case in which it would be appropriate for a jury to mitigate damages. Clearly, such mitigation was intended to reflect a failure in performance rather than an inequality or unfairness in what was promised. Hicks & Phillips, 2 Eq. Ca. Abr. 688, 22 Eng. Rep. 579 (Ch. 1721). Also reported in 21 Viner, , Abridgement 543 (1793)Google Scholar, note to pl. 1.See also Gray v. Briscoe, Noy 142, 74 Eng. Rep. 1104.

This is not to say that juries in actions of assumpsit did not have considerable discretion as to damages. As Atiyah points out, juries in most actions of assumpsit could “mitigate” damages without judicial interference. What juries in actions of assumpsit actually did, however, is largely unknown, and what is known strongly suggests that they did not regularly attempt to impose standards of fairness. Washington, , Damages in Contract at Common Law, 47 L.Q.R. 345 (1931)Google Scholar. One early eighteenthcentury author observed about actions of “assumpsit” that “the Jury give in Damages regularly, the money promised to be paid.” 1 Modern Entries 286 (1734)Google Scholar.

Nelson has drawn conclusions about America somewhat similar to Atiyah's about England. Nelson argues that customary prices were, in effect, imposed upon most parties. He acknowledges, however, that parties could sue on an agreed price in actions of special assumpsit, notwithstanding very low consideration. Nelson, , The Americanization of Common Law at 61–62Google Scholar. Indeed, they also could do so in actions of indebitatus assumpsit. Customary prices were not imposed upon parties unless the parties failed to set their own price.

Nelson also suggests that unjust damages could be reduced in equity. Id. at 61. These reductions of damages were, however, as Nelson notes, reductions of penalties in bonds. Such cases merely establish American conformity to the English practice of not enforcing penalties. They are not evidence that American courts required “just” damages.

172. See also Dodderidge, J., The English Lawyer 136 (1631)Google Scholar.

173. Hale, M., An Analysis of The Law of England § 41Google Scholar. The term had been used in England already in the early seventeenth century in Speake v. Richards, Hob. 206, 80 Eng. Rep. 353 (1617), cited by Simpson, A History of The Common law of Contract. According to a recent article, civilian influence played a major role in prompting the adoption by the common law of an implied-promise theory of quasicontract, chiefly in the eighteenth century. Birks, & McLeod, , The Implied Contract Theory of Quasi-Contract: Civilian Opinion in the Century Before Blackstone, 6 Oxford J. Legal Stud. 46 (1980)CrossRef Google Scholar. The degree of civilian influence may, however, be questioned or at least difficult to establish because during the seventeenth century in all actions of indebitatus assumpsit it was a convention that a promise was implied.

174. Thompson v. Leach, 2 Ventris 198, at 202, 86 Eng. Rep. 391, at 393, (C.P. 1690). Such explicit use of the consensus theory in a case was very unusual at this early date. See also A General Abridgement of Cases in Equity 17 n.(b) (1734)Google Scholar.

175. Ayliffe, , A New Pandect of Roman Law at xlvii (1734)Google Scholar. The portion of this quotation that follows the ellipses and the ideas contained in all of the quotation were, apparently, plagiarized from Wood, , A New institute at 85 (1730)Google Scholar. Ayliffe, however, is more explicit than Wood.

176. 1 Brown, A., A Compendious View of The Civil Law 41–42 (1798)Google Scholar.

177. Jones, , Essay on The Law of Bailments at 29Google Scholar.

178. In 1721, William Strahan observed that the civil law “describes the Nature and Obligation of all manner of private Contracts.” Strahan, Dedication to Domat, , The Civil Law in Its Natural Order (1737)Google Scholar. Evans thought that “most of our law, respecting contracts, is borrowed from, or perhaps is rather upon the general principles of natural justice concurrent with the civil law.” 2 Evans, W. D., A General View of The Decisions of Lord Mansfield, in Civil Causes 209 (1803)Google Scholar. James Kent wrote that:

The value of the civil law is not to be found in questions which relate to the connexion between the government and the people, or in provisions for personal security in criminal cases. To everything which concerns civil and political liberty, it cannot be compared with the free spirit of the English and American common law. But upon subjects relating to private rights and personal contracts and the duties which flow from them, there is no system of law in which the principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice…. [I]t has been the fruitful source of those comprehensive views and solid principles, which have been applied to elevate and adorn the jurisprudence of modern nations.

1 Kent, , Commentaries at *547Google Scholar. In 1801, James Sullivan argued against the application of different laws of contract in the various states on the ground that the United States was one country and, further, that personal contracts depended upon the “jus gentium”; and ought to be the subject of “those principles of the general law of nations which are acknowledged by the world.” To ensure such a result, Congress, he thought, should enact a law regulating construction of “all personal contracts.” Sullivan, J., History of Land Titles in Massachusetts (1801)Google Scholar, cited and put in the context of the debate over congressional power in 2 Crossky, W. W., Politics and the Constitution in the History of the United States 573–74 (1953)Google Scholar. Hoffman wrote: “On the important subject of contracts the Civil Law is peculiarly rich, and accurate; and, did our limits admit, it would be no difficult task to point out how largely indebted, though silently and furtively, is the English law, to this magnus parens of all modern law.” Hoffman, , A Course of Legal Study at 508 (1836)Google Scholar. It is no coincidence that the first common law treatises on contract were based on civil law or that one of the first American treatises on jurisprudence was based on civilian ideas and concerned contract. Verplanck, G., An Essay on the Doctrine of Contracts (1825)Google Scholar.

179. Finch, citing Justinian, referred to contract as a “mutual agreement". 2 Finch, , Law, or A Discourse Thereof, ch. 18Google Scholar. Blackstone defined contract as “an agreement, upon sufficient consideration, to do or not to do a particular thing.” 2 Blackstone, , Commentaries at *442Google Scholar. The promise upon which an action of assumpsit was based was not, for Blackstone, merely half a contract but was “in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same,” the remedy alone being different. 3 Blackstone, , Commentaries at *157Google Scholar. Similar language was used in Hunt's Case, Owen 42, 74 Eng. Rep. 886 (C.P. 1588).

180. In England, Ballow's Equity went through nine editions from 1737 to 1820, Powell's Contracts went through three editions from 1790 to 1796, and Jones's Bailments went through four editions from 1781 to 1834. In the United States, Ballow had four editions by 1835, Powell had six by 1825, and Jones had seven by 1836. The American editions probably were smaller than the English. For a late eighteenth-century American treatise that gives prominence to the role of consensus in contract law, see Swift, Z., A System of the Laws of the State of Connecticut (1795–1796)Google Scholar.

181. Ballow, , A Treatise of Equity (1737)Google Scholar.

182. 1 Ballow, , A Treatise of Equity at 40 (1793)Google Scholar.

183. 1 Powell, J., Essay Upon the Law of Contracts and Agreements (1790)Google Scholar.

184. Jones, , Essay on The Law of Bailments at 11 (1781)Google Scholar.

185. Atiyah, , Rise and Fall at 297Google Scholar; Simpson, Introduction to Cheshire, & Fifoot, , Law of Contract 11 (1981)Google Scholar.

186. This language is from Domat. See note 160 supra.

187. 1 Ballow, , A Treatise of Equity at 24 (1793)Google Scholar.

188. 1 Powell, , Essay Upon the Law of Contracts and Agreements at 3 (1790)Google Scholar.

189. Jones, , Essay on the Law of Bailments at 2 (1781)Google Scholar.

190. Buller, F., An Introduction to the Law Relative to Trials at Nisi Prius (1817) (1st pub. 1772, and based on an earlier work)Google Scholar.

191. Adam Smith also drew ideas from this tradition. The exact lineage and nature of the tradition need not be pursued here. Note, however, the antiquity of similar analysis. Cicero, De Officiis Bk. 1, §22 (who in turn cited the Stoics). See also 1 Heineccius, , A Methodical System of Universal Law at 250 & 252 and classical authors cited in note at 251–52Google Scholar.

Although Baron Gilbert's contribution to the tradition remained in manuscript and therefore was less widely read than the passages quoted in the text, it was more sophisticated. Writing before 1726, Gilbert began his essay on contract:

… no doubt as the Notion of Propriety [i.e., property] was begotten from humane necessity so was also this of Contract. A man no doubt by diligence in any one affair over wrought what was necessary for himself & then it became requisite to Change the superfluity for what Abounded to another[.] [T]hus the fruits of the Earth might be bartered, for the Wooll of the Sheep[.] & as Com[m]erce Encreased & the Severall Ornam[en]ts of life were brought to light the ways of Exchange became the more Enlarged & Extended.

Gilbert, Of Contract, fol. 39.

192. Civil law appealed to common lawyers not because it provided better rules, but because it described the underlying natural law with greater truth and accuracy. Hoffman wrote: “on the important subject of contracts the Civil Law is peculiarly rich, and accurate.” Hoffman, , A Course of Legal Study at 508 (1836)Google Scholar.

193. Thus Evans began the Introduction to his translation with an extensive discussion of the “science of jurisprudence.”

194. Baker, Book Review, 43 Mod. L. Rev. 467, 469 (1980) (reviewing Atiyah, Rise and Fall). For other examples of this argument, see Baker, From Sanctity of Contract to Reasonable Expectation?, 1979 Current Legal Prob. 17, 20; Simpson, The Horwitz Thesis at 600. Baker has also argued that “What is usually represented as the rise of a particular species of contractual theory was… no more than the first attempt to state and analyse the English law of contract in detail.” Baker, From Sanctity of Contract at 21. Arguably, some areas of English contract law had already been elaborated in considerable detail. What was new was that contract was now elaborated in terms of consensus. For more on this subject, see text at note 210 infra.

195. For cases that used consensus ideas at a relatively early date, see text at notes 32 and 174 supra.

196. See text at notes 212 and 213 infra.

197. See text accompanying note 201 infra.

198. The appearance of various issues of consensus in nineteenth-century cases has been discussed by Simpson. Simpson, Innovation. His contributions are addressed in this article in connection with each of the relevant issues of consensus.

199. Id. at 277.

200. For the frequency of written opinions, see Surrency, , Law Reports in the United States, 25 Am. J. Legal Hist. 48, 55–56 (1981)CrossRef Google Scholar; American Reports and Reporters, 22 Am. Jurist 108 (1839)Google Scholar.

201. American courts frequently cited civil law. For citations to civilians in American contract cases, see Mowatt v. Wright, 1 Wend. 355, 360 (N.Y. 1828) (citing Pothier on ignorance of law); Mactier v. Frith, 6 Wend. 103, 114–15 (N.Y. Ct. of Errors, app. from Ch., 1830) (citing, in French editions, Delvincourt and especially Pothier); Hazard v. New England Marine Ins. Co., 1 Sumn. 218, Fed. Cas. No. 6,282 (Cir. Ct. D. Mass. 1832) (Story, J.) (citing Pothier for holding on mutual mistake); Allen v. Hammond, 36 U.S. 63 (1837) (citing Pufendorf on mutual mistake); Wheadon v. Olds, 20 Wend. 174 (N.Y. 1838) (citing Mowatt and its borrowings “from the civil law” and also citing Domat). In McCulloch v. The Eagle Ins. Co., 1 Pick. Rep. 278, 283 (Mass. 1822), the Court cited Heineccius to correct a mistaken interpretation of civil law discussed by plaintiffs counsel. For obvious reasons, Louisiana cases are not cited as evidence here.

202. The clearest line of cases concerned flowing or percolating water: Brown v. Best, 1 Wils. K.B. 174, 95 Eng. Rep. 557 (K.B. 1747); Liggins v. Inge, 7 Bing. 682, 131 Eng. Rep. 263 (C.P. 1831); Mason v. Hill, 5 B. & Ad. 1, 110 Eng. Rep. 692 (K.B. 1833); Acton v. Blundell, 12 M. & W. 324, 152 Eng. Rep. 1223 (Ex. Ch. 1843).

Early nineteenth-century cases on commercial and maritime law frequently cited the civilians but cannot provide clear evidence of a general willingness to rely on civilian ideas to supplement common law, since such cases could adopt civilian notions as custom or the law of nations. Nevertheless, it should be noted that some early nineteenth-century cases involving insurance and bills of exchange employed jurisprudential language to justify their use of civil law. For insurance cases, see Lucena v. Craufurd, 2 Bos. & Pul. (N.R.) 269, 127 Eng. Rep. 630 (H.L. 1807) (Grotius, Pothier, and Blackstone cited as to “the general nature of a contract of insurance,” 2 Bos. & Pul. [N.R.] at 300); Butler v. Wildman, 3 B. & Ald. 398, 106 Eng. Rep. 708 (K.B. 1820) (“In the absence of all authority, we must put that construction upon the contract of assurance which is most agreeable to justice…. we may avail ourselves of [French] opinions and decisions, to assist us… “ 3 B. & Ald. at 405). For a case concerning bills of exchange, see Cox v. Troy, 5 B. & Ald. 474, 106 Eng. Rep. 1264 (K.B. 1822) (“in the absence of [English] authorities, we may with great advantage take into our consideration the opinion of learned writers,” 5 B. & Ald. at 480).

203. Adams v. Lindsell, 1 B. & Ald. 681, 106 Eng. Rep. 250 (K.B. 1818).

204. Simpson, Innovation at 261. Simpson makes similar and equally important observations about a number of contract cases. Adams, however, was a relatively early case and therefore is especially pertinent to the argument here.

205. A number of American decisions support Simpson's theory that common law treatises facilitated the reception of consensus theory into common law cases. See Hartford & New Haven R.R. Co. v. Jackson, 24 Conn. 514, 517 (1856) (citing Parsons for holding on mistake in interpretation), and Miles v. Stevens, 3 Pa. St. 21, 37 (1846) (citing Story's Equity Jurisprudence for holding on mutual mistake). This is not to say, however, that reception through common law treatises was necessary. See notes 99, 201, and 202 supra. Nevertheless, for certain civilian doctrines that were not well introduced into England and the United States in the eighteenth century, nineteenth-century treatises may have played a more important role. See text at note 269 infra.

206. This was especially true because, in certain cases of contract, the new law was being applied to issues on which there appeared to be little or no common law doctrine.

207. Atiyah, Rise and Fall, passim.

208. See text at note 157 supra.

209. Rather than plead specially, defendants in cases of assumpsit or debt on simple contract could (prior to the Hilary Rules) plead generally and present any evidence that disaffirmed their obligation on the contract at the time when the action was commenced. 1 J., & Chitty, T., A Treatise on The Parties to Actions and On Pleading 472 (1837)Google Scholar. The general issue was attractive, because it allowed defendants to surprise plaintiffs and to defend on the facts while preserving most issues of law.

210. Baker, From Sanctity of Contract at 20; Baker, Book Review, 43 Mod. L. Rev. 467 (1980). Simpson also makes this argument, but less emphatically. Simpson, The Horwitz Thesis at 600.

211. Baker, From Sanctity of Contract at 20.

212. See notes 240 and 248 infra.

213. Another appealing explanation of the slow appearance of cases applying consensus theory is that cases at nisi prius were not reported until the early nineteenth century. It is true that judicial discussion of consensus theory may have occurred in unreported instructions to juries. Yet the absence of reports of cases at nisi prius would obscure only some rather than all judicial use of the consensus theory in cases at law. Moreover, it should be recalled that suits in equity had long been reported and that issues of consensus nevertheless were not reported in equity before they were reported at law. Thus, the absence of reports of cases at nisi prius until the early nineteenth century does not explain the delay in the appearance of the consensus theory.

Horwitz's arguments about contract law cannot be used to explain why some parts of the consensus theory entered case law in the first half of the nineteenth century and other parts did so only later. According to Horwitz, the innovation in nineteenthcentury contract law was complete by the middle of the century, yet parts of the consensus theory appeared in cases only in the decades thereafter.

214. By the term “mistake in understanding,” I mean the Peerless problem: a mistake or misunderstanding as to the subject matter of a contract as a result of which the parties have different intentions and fail to reach a consensus. I refer to such a failure of consensus as a “mistake” because that is the rubric under which this and other types of mistake were discussed in the first half of the nineteenth century.

Some types of “mistake” did not always involve problems of consensus. For example, although mistaken payments were occasionally discussed by treatises together with other types of mistake under the rubric of “assent,” they do not necessarily raise problems of consensus and therefore will be largely ignored here. For similar reasons, this article will not examine mistakes in drafting whereby a writing does not accurately reflect the consensus of the parties.

For the sake of simplicity, some problems of mistake that do involve issues of consensus will not be addressed in the text of this article. For example, certain cases of deeds signed by mistake were capable of consensus analysis but are relegated to note 253 infra.

215. For the history of the indebitatus counts, see Simpson, , A History of The Common Law of Contract at 489–99Google Scholar.

216. See note 52 supra.

217. The irrelevance of questions of consensus to actions of indebitatus assumpsit is illustrated by Bruce v. Pearson, 3 Johns. 534 (N.Y. Sup. Ct. 1808). In Bruce—an offer-and-acceptance case—the Court held that the plaintiff could not succeed on a special assumpsit, since there was no “aggregatio mentium”; It held further that “there can be no implied assumpsit to pay, as the goods sent never came into his [the defendant's] hands.” 3 Johns, at 535–36.See also Peltier v. Collins, 3 Wend. 459, 467 (N.Y. 1830).

218. Baker has noted that as a result of the nature of bonds “many of the problems of the later law of contract never came into the open” in cases of debt on obligation. Baker, , An Introduction to English Legal History at 270Google Scholar.

219. In Kyle v. Kavanagh, 103 Mass. 356 (1869), an action to recover the price of land sold and conveyed, sloppy drafting and the existence of two Prospect Streets in Waltham generated a mistake in understanding. The agreement in question was, however, only a written agreement to convey, not the deed conveying the land.

By interpreting contractual language so as to avoid ambiguities, courts could, perhaps, have delayed the appearance of mistake in understanding in cases not involving deeds. Informal contracts, however, appear to have been unaffected by any such trend, perhaps because, among other reasons, informality in contracts made courts less confident of their ability to interpret and resolve ambiguities (and more willing to permit evidence of, e.g., mistake).

220. 1 Chitty, , A Treatise on The Parties to Actions at 305 (1837)Google Scholar.

221. The variance rule was said to apply to all actions for contracts, including all actions of debt. 5 Bacon, M., A New Abridgement 350Google Scholar, “Pleas & Pleading,” B (5) (6) (1813) (notes by H. G. William and B. Wilson). Chitty, J., The Practice Respecting Amendments of Variances 28 (1835)Google Scholar.

Although the English courts and Parliament in the early nineteenth century attempted to ameliorate the effect of the variance rule, they produced weak palliatives that curbed only the rule's most outrageous effects. Id., passim; 1 Chitty, , Treatise on The Parties to Actions at 343–49 (1837)Google Scholar. See also note 228 infra. The variance rule existed unameliorated in America too. See, e.g., the cases cited in 39 Century Digest, Pleading §1300.See also Cowen, E., A Treatise on the Civil Jurisdiction of a Justice of the Peace in the State of New York 51–53, 73, 335 & 369 (1821)Google Scholar.

Although oral pleading in New York justices’ courts and carelessness in drafting written pleadings allowed many cases in which a variance might have been established to proceed undisturbed, id. at 52–53, such informality and laxity did nothing to prevent questions of mistake in understanding from being treated as variances whenever such issues were pursued. Moreover, though courts increasingly claimed to be less strict about variances than they had been, the cases in which the variance rule was supposedly ameliorated reveal that the rule was hardly thereby endangered. For example, see Allen v. Jarvis, 20 Conn. 38 (1849) (no variance where plaintiff alleged agreement to make surgical instruments, and the evidence showed that the parts, although largely prepared, were not completely assembled). Judging by the extraordinary attention that treatises on pleading devoted to the subject of variances, the fear of variances must have haunted plaintiffs.

222. Of course, many plaintiffs would not want to amend. Note also that even in New York justices' courts, which were somewhat tolerant of deviations from niceties of procedure, “the evidence must correspond strictly, with the statement in the declaration, or the plaintiff will be nonsuited upon the trial.” Cowen, , Treatise on the Civil Jurisdiction of a Justice of the Peace at 51 (1821)Google Scholar.

223. See note 233 infra.

224. Baldwin & Forbes ads. Mildeberger, 2 N.Y. Cty. Supr. Ct. 176 (1829). (Note the defendant's contention in motion for new trial that “[n]either party did, in the present case, by evidence, attempt to show any such misunderstanding, nor was there any evidence thereof…” 2 N.Y. Cty. Supr. Ct. at 180.) Hazard v. New England Marine Ins. Co., 1 Sumn. 218, Fed. Cas. No. 6,282 (Cir. Ct. D. Mass. 1832). (Plaintiff's declaration stated the insurance policy's legal effect, and the defendant made a general denial. National Archives—Boston, Records of Cir. Ct. D. Mass., Final Record Books, Vol. 20, p. 271ff. The reporter's outline of arguments at trial reveals that counsel discussed the meaning of the misunderstood term, “coppered ship.” They did so, however, only to determine the proper interpretation of those words and to establish whether plaintiff had misrepresented the condition of the ship. Fed. Cas. No. 6,282.) Rice v. Dwight Mfg. Co., 56 Mass. 80 (1848) (trial judge's instructions on mistake in understanding held erroneous). Saltus v. Pruyn, 18 How. N.Y. Pr. 512 (1859). Note that all of these were American cases. Note also that in a few other American cases, judges briefly referred to mistake in understanding, even though the doctrine was not really relevant.

See also Greene v. Bateman, 2 Woodb. & M. 359, Fed. Cas. No. 5,762 (Cir. Ct. D. R.I. 1846). (The report does not preserve the arguments at trial, and therefore it is conceivable that counsel raised the issue of consensus before the judge did so. The parties appear to have argued about their different understandings, but this by itself does not mean that they addressed the issue of consensus. Although the interrogatories are hardly revealing, they do not suggest arguments about consensus. National Archives—Boston, Record Group 21, Records of Cir. Ct. D. R.I., Case Files, Nov. 1846 term.)

225. E.g., Sheldon & Barton v. Capron, 3 R.I. 171 (1855) (unclear whether plaintiff raised issue prior to court); Hartford & New Haven R.R. Co. v. Jackson, 24 Conn. 514 (1856); Fullerton v. Dalton, 58 Barb. 236 (1870); Rovegno v. Defferari, 40 Calif. 459 (1871); Repley v. Dagget, 74 Ill. 351 (1874) (unclear whether plaintiff raised issue prior to court); Kennedy v. Panama, New Zealand, & Australian Royal Mail Co., L.R. 2 Q.B. 580 (1867); and Cundy v. Lindsay, 3 Ap. Cas. 459 (H.L. 1878). See also Pearson v. Lord, 6 Mass. 81 (1809) (court probably raised consensus analysis first).

226. E.g., in Suydam, Reed & Co. & Coleman, 4 N.Y. Super. Ct. 133 (1848), a broker distributed different notes to the two parties. At trial, defendant successfully moved for a nonsuit on various grounds, including that the notes “did not constitute a contract and none had been proven by the plaintiffs.” This argument was somewhat similar to mistake in understanding, although it was closer to offer and acceptance. See also Thornton v. Kempster, discussed in note 230 infra.

227. It is conceivable but not probable that Greene v. Bateman, cited in note 224 supra, is a case in which the defendant first raised the issue.

228. The variance rule survived the procedural reforms of 1834. The so-called Hilary Rules, adopted by the English judges upon authorization by Parliament, were designed to reduce the incidence of general denials and thereby increase decisions upon points of law. With respect to actions of special assumpsit and debt on simple contract, the Rules required special pleas in connection with defenses that confessed existence of a contract but avoided its effect. However, the Rules did nothing to discourage general pleading where a defendant disputed the very existence of the contract declared upon by the plaintiff—precisely the situation in which the variance defense was available. Other reforms sought to prevent nonsuits for certain trivial variances, but even these timid reforms were vitiated by the bench. Chitty, The Practice Respecting Amendments of Variances, passim. Thus, the variance rule and its consequences survived the reforms of the 1830s unscathed.

Although further reforms introduced in mid-century offered plaintiffs the opportunity to amend their declarations at trial and thereby avoid being nonsuited, these reforms do not appear to have encouraged defendants to abandon their variance defense. Prior to the reforms, if a plaintiff thought the defendant's version of the contract was better than no contract, the plaintiff had to bring a new action; after the reforms, the plaintiff could amend. The reforms thereby saved time and money for some plaintiffs who, but for the right to amend, would have been nonsuited. However, they hardly altered the effectiveness of a defense based on a variance. The variance rule was a better-established defense than mistake in understanding, and it could still be made under a general denial, which delayed disclosure of the defense and allowed evidence to be put to the jury before the question of law was discussed.

229. 1 Chitty, , A Treatise on the Parties to Actions at 334 (1837)Google Scholar.

230. Ross, Administrator de bonis non v. Parker, 1 B. & C. 358, 107 Eng. Rep. 133 (K.B. 1823). This was an action of covenant, but its holding affected all actions on contract.

Another tactic by which plaintiffs could avoid a variance was to claim that the indeterminate language of the contract was an accurate statement of the contract's legal effect. Even if successful, however, this argument was not always attractive to the plaintiff. More important, it was hardly convincing. For a plaintiff who found this out the hard way, see Thornton v. Kempster, 5 Taunt. 786, 128 Eng. Rep. 901 (C.P. 1814). In Thornton, a broker distributed a note for St. Petersburgh hemp to the seller and a note for Riga Rhine hemp to the buyer. At trial, when the plaintiff-seller pursued his count on a contract for St. Petersburgh hemp, the defendant-buyer claimed a variance. Having been frustrated in his first line of attack, the plaintiff turned to an additional count on a contract for hemp of any description. The Court held for the defendant on the ground that there was no contract.

231. 1 Chitty, , A Treatise on the Parties to Actions at 336 (1837)Google Scholar.

232. Raffles v. Wichelhaus. 36 L. J. Ex. 160, 2 H. & C. 906, 159 Eng. Rep. 375 (1864). For a fascinating discussion of the case, see Birmingham, Holmes on “Peerless.”

Parenthetically, it should be noted that, although the defendants’ counsel claimed a mistake in understanding, it is not clear whether the Court decided in favor of the defendants on the basis of that argument. Simpson, Innovation at 268 n.99.Simpson points out that the court simply upheld the validity of the defendants’ plea and that it did so because, had the issue gone to trial, the defendants could have prevailed by introducing parole evidence concerning the latent ambiguity in the contract. According to Simpson, the defendants could have prevailed at trial either by showing that “Peerless” meant October Peerless or by revealing that the parties had different understandings as to the ship. We cannot, concludes Simpson, be certain that the Court had the latter theory in mind.

Another point of view is possible, however. The defendants’ plea asserted that the defendants intended the October Peerless and that the plaintiff delivered cotton on the December Peerless. This probably was enough to establish an assertion of differing intentions; it was not enough to show that “Peerless” meant the October Peerless. Since the question before the Court was the sufficiency of the plea rather than the sufficiency of any possible argument on behalf of the defendants, it appears likely that the Court based its decision on the ground of mistake in understanding. This conclusion is consistent with the fact that the defendants relied on mistake in understanding when arguing in support of their plea. It should not be surprising that the defendants argued mistake in understanding rather than their own interpretation. Mistake was by far the easier claim.

233. The change in tactics did not go unnoticed. Fredrick Pollock (grandson of one of the judges in Raffles) questioned whether the special plea in Raffles was really necessary. In such a case, according to Pollock, “the facts might be a good defense under a plea denying the contract.” Pollock, F., Principles of Contract and Equity 404 n.(c) (1876)Google Scholar. Looking back at the earlier cases in which “defendants at law” had asserted “fundamental error,” he observed that the defense “was properly done under the forms of Common Law by a general traverse rather than by special pleading.” Id. at 404.What he apparently did not perceive was that Raffles had protected himself against a general denial and that therefore Wichelhaus had little choice but to raise the issue of law.

234. The cases in which the mistake-in-understanding defense was considered include: Smith v. Hughes, L.R. 6 Q.B. 597 (1871); Smidt v. Tiden, L.R. 9 Q.B. 446 (1874); Falck v. Williams, A.C. 176, PC. (1900); Scriven Bros. & Co. v. Hindley & Co., 3 K.B. 564 (1913); Kyle v. Kavanagh, 103 Mass. 356 (1869); Oldham v. Kerchner, 79 N.C. 106 (1878); Brant v. Gallup, 5 Ill. App. 262 (1879).

235. E.g., Lansdown v. Lansdown, Mos. 364, 25 Eng. Rep. 441 (Ch. 1730); Bingham v. Bingham, 1 Ves. Sen. 126, 27 Eng. Rep. 934 (Ch. 1748); Gee v. Spenser, 1 Vern. 32, 23 Eng. Rep. 286 (1681) (reporter's note).

236. See, for example, the cases cited in note 238 infra. Some of these are very cryptic. Occasionally, however, they briefly explain the reasons for the doctrine.

237. E.g., in cases of reformation.

238. A consensual element (at times faint, at times strong) can be found in many of the cases that used the equitable analysis. For examples from before 1850, see Calverley v. Williams, 1 Ves. Jun. 210, 30 Eng. Rep. 306 (Ch. 1790); Marquis of Townshend v. Stangroom, 6 Ves. Jun. 328, 31 Eng. Rep. 1076 (Ch. 1801); Higginson v. Clowes, 15 Ves. Jun. 516, 33 Eng. Rep. 850 (Rolls 1808); Hodges v. Horsfall, 1 Russ. & M. 116, 39 Eng. Rep. 45 (Ch. 1829); Clowes v. Higginson, 1 V. & B. 524, 35 Eng. Rep. 204 (Ch. 1813); Malins v. Freeman, 2 Keen 25, 48 Eng. Rep. 537 (Rolls 1837); Coles v. Bowne, 10 Paige 526 (N.Y. Ch. 1844). The consensual element is strongest in the report of Higginson v. Clowes. Note that in Calverley the mistake apparently was mutual, but mistake in understanding was briefly discussed.

After about 1850, courts often employed an unadulterated consensus theory. E.g.: Fowler v. The Scottish Equitable Life Ins. Soc. & Ritchie, 28 Ch. (N.S.) 225 (1858); Paget v. Marshall, 28 Ch. D. 255 (Ch. 1884); Hickman v. Berens, 2 Ch. D. 638 C.A. (1895); Wilding v. Sanderson, 2 Ch. D. 534 C.A. (1897); Van Praagh v. Everidge, 1 Ch. 434 C.A. (1903); Braeutigam v. Edwards, 38 N.J. Eq. 542 (1884). Of course, the equitable approach continued to be used in some cases after mid-century.

239. When a plaintiff based his claim on a defendant's offer, the defendant could not simply deny that he had made the alleged promise. He had to assert that his offer no longer had legal significance, and to do this he usually had to refer to consensus theory. E.g., in Symmans v. Want, S sued on W's offer to guarantee an obligation of W's brother. Being unable to deny that he had made the alleged offer, the defendant raised other objections, including the absence of an acceptance. 2 Stark. 371, 171 Eng. Rep. 676 (K.B. 1818).

240. Most of the early reported cases were at law. The earliest cases in which the issue was reported to have been raised by defendants include: Heyman v. Neale, 2 Camp. 337, 170 Eng. Rep. 1176 (1809); Dunkin v. Wilford (1814), cited at 5 M. & W. 538, 151 Eng. Rep. 228; Cumming v. Roebuck, Holt N.P. 172, 171 Eng. Rep. 203 (N.P. 1816) (not clearly consensus analysis); Symmans v. Want, 2 Stark 371, 171 Eng. Rep. 676 (K.B. 1818); Eliason v. Henshaw, 17 U.S. 225 (1819). Many other such cases occurred after 1820. The reports of some cases reveal that the judges discussed the question but fail to indicate whether counsel did so first—and it may be suspected that counsel often did. Payne v. Cave, 1 T.R. 148, 100 Eng. Rep. 502 (K.B. 1789); Humphries v. Carvalho, 16 East 45, 104 Eng. Rep. 1006 (1812); M'Iver v. Richardson, 1 M. & S. 557, 105 Eng. Rep. 208 (1813); Thornton v. Kempster, 5 Taunt 786, 128 Eng. Rep. 901 (1814); Gaunt v. Hill, 1 Stark. 10, 171 Eng. Rep. 386 (1815); Kennedy v. Lee, 3 Mer. 442, 36 Eng. Rep. 170 (Ch. 1817); Bruce & Bruce v. Pearson, 3 Johns. 534 (N.Y. Sup. Ct. 1808); Tuttle v. Love, 7 Johns. 470 (N.Y. Sup. Ct. 1811). In contrast, Simpson says that, “[s]o far as bilateral contracts are concerned,” Adam v. Lindsell, 1 B. & Ald. 681 (K.B. 1818), was “the first case clearly evidencing a reception of the civilian doctrine.” Simpson, Innovation at 260.

Payne v. Cave, 1 T.R. 148, 100 Eng. Rep. 502 (K.B. 1789) may be the earliest reported case of offer and acceptance. According to Simpson, however, it does not refer to the consensus theory. He writes, “the use of the terms “offer” and “assent” in that case do not apply artificial legal concepts … but are merely unspecialized descriptive terms.” Simpson, Innovation at 260.Nevertheless, another point of view should be considered. The bulk of the Court's reported opinion is here reproduced: “the assent of both parties is necessary to make the contract binding; that is signified on the part of the seller by knocking down the hammer, which was not done here till the defendant had retracted. An auction is not unaptly called locus poenitentiae. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to.” 1 T. R. at 149.The words “offer” and “assented” appear to be more than “merely unspecialized descriptive terms.” The Court used these words to make generalizations about consensus theory and bidding rather than to describe the facts of the case. It is significant that such language appears only in the reporter's paragraph relating the Court's opinion; the reporter did not use the language of consensus in the detailed description of the facts.

Note that “acceptance” could be discussed independently of the consensus theory, e.g., in cases of indebitatus assumpsit and cases concerning the Statute of Frauds.

241. Note that common lawyers typically applied the doctrine of mutual mistake only to mistakes about the existence or nature of the subject matter of a contract. Although some civilians applied the doctrine to mistakes respecting the quality of the subject matter, common lawyers could not normally go so far without undermining accepted notions of consideration, warranties, and, more generally, freedom of contract. This is another example of the selectivity with which common lawyers adopted civilian ideas on contract.

242. E.g., Pufendorf, , The Whole Duty of Man (1.9.10)Google Scholar; Rutherforth, , Institutes of Natural Law at 111–114 (1832)Google Scholar.

243. E.g., Pufendorf, , The Whole Duty of Man (1.9.12)Google Scholar; 1 Domat, , The Civil Law in Its Natural Order at 237 (1.18.1.11) (1737)Google Scholar; Rutherforth, , Institutes of Natural Law at 114–15 (1832)Google Scholar. The insufficiency of the parties’ understanding was discussed both in terms of mistake and in terms of conditions.

244. See text at notes 155 and 156 supra.

245. One solution was to emphasize the notion of conditional assent. It could be implied that the parties assented to the contract on the assumption or condition that the subject matter of the contract existed. This approach had a basis in continental writings. E.g., Pufendorf, , The Whole Duty of Man at 114 (1.9.12) (1735)Google Scholar. Barbeyrac even required an express condition. Id.

246. E.g., Ramsden v. Hilton, 2 Ves. Sen. 304, 28 Eng. Rep. 196 (Ch. 1751).

247. The gradual transition from the equitable approach to some use of a purely consensual analysis is apparent in the following cases: Lansdown v. Lansdown, Mosely 364, 25 Eng. Rep. 441 (Ch. 1730); Bingham v. Bingham, 1 Ves. Sen. 126, 27 Eng. Rep. 934 (Ch. 1748); Calverley v. Williams, 1 Ves. Jun. 210, 30 Eng. Rep. 306 (Ch. 1790); Stapylton v. Scott, 13 Ves. Jun. 424, 33 Eng. Rep. 353 (Ch. 1807); Hitchcock v. Giddings, 4 Price 135, 146 Eng. Rep. 418 (Ex. 1817); Robinson v. Dickenson, 3 Russ. 397, 38 Eng. Rep. 625 (Ch. 1828); Baxendale v. Seale, 19 Beav. 601, 52 Eng. Rep. 484 (Rolls 1855); Allen v. Hammond, 36 U.S. 63 (1837); Daniel v. Mitchell, Fed. Cas. No. 3,562 (Cir. Ct. D. Me. 1840); Harrell v. DeNormandie, 26 Tex. 120 (1861); Taylor v. Fleet & Taylor, 1 Barb. Ch. 471 (N.Y. Ch. 1847); Hurd v. Hall, 12 Wisc. 125 (1860); Spurr v. Benedict, 99 Mass. 463 (1868). In some cases, in which the parties were mutually mistaken about the amount of land they had bought and sold, courts would simply reduce the amount to be paid for the land. E.g., Quesnal v. Woodlief, 10 Va. 218 (Ct. App. 1796).

248. E.g., Cox and others v. Prentice, 3 M. & S. 344, 105 Eng. Rep. 641 (K.B. 1815); Perkins v. Gay, 3 Serg. & R. 327, 8 Am. Dec. 653 (Penn. 1817); Mowatt v. Wright, 9 N.Y. Rep. 355 (1828); Wheadon v. Olds, 20 Wend. 174 (N.Y. 1838); Ketchum v. Catlin, 21 Vt. 191 (1849).

249. Plaintiffs seeking recission could also use the non-consensus analysis.

250. E.g., Hardman v. Booth, 1 H. & C. 803, 158 Eng. Rep. 1107 (Ex. 1863); Smith v. Wheatcroft, 9 Ch. D. 223 (1878) (defendants claimed fraud and court treated issue as one of consensus). Winchester v. Howard, 97 Mass. 304 (1867); Roof v. Morrisson, Plummer & Co., 37 Ill. App. 37 (1890); Consumers’ Ice Co. of Buffalo v. Webster, Son & Co., 53 N.Y. Supp. 56 (Sup. Ct. 1898); Brighton Packing Co. v. Butchers’ Slaughtering & Melting Ass'n., 211 Mass. 398 (1912). See also Cundy v. Lindsay, 3 App. Cas. 459 (H.L. 1878). Of course, in many other cases non-consensus analysis continued to be used.

251. Bacon, , A New Abridgement of the Common Law, Duress (1st pub. 1736–70)Google Scholar (“Every legal contract must be the act of the understanding, which they are incapable of using, who are under restraints and terrors; and therefore the law requires the free assent of the parties as essential to every contract, and that they be not under any force or violence.”); 1 Ballow, , A Treatise of Equity at 47–56, 67–76 (1793)Google Scholar; 1 Powell, , Essay Upon the Law of Contracts and Agreements at 21 (1790)Google Scholar; 1 Swift, , A System of the Laws of the State of Connecticut at 358 (1795)Google Scholar.

252. With respect to duress (as well as mistake), Theron Metcalf admitted that the holdings of some common law cases did not fit within the consensus model of natural and civil law. He wrote, “On a retrospect of the common law of duress, it will occur to every mind, that its operation is confined within very narrow and somewhat arbitrary limits, and is by no means co-extensive with the principles of natural law, as expounded by the most approved writers.” 20 am. Jurist, 29 (1838). See also Story, W., A Treatise on the Law of Contracts Not Under Seal § 92 (1844)Google Scholar.

On questions of mental incapacity, see 1 Ballow, , A Treatise of Equity, ch. 2, § 1, n.(c) (Fonblanque ed. 1793)Google Scholar; 2 Pothier, On Obligations, app. 3 (Evans ed.); Story, , A Treatise on the Law of Contracts at § 23 (1844)Google Scholar.

253. In contrast to duress and mental incompetence, the minor doctrine relating to deeds signed by mistake had been the subject of precedent already in the sixteenth century but was not clearly limited by such precedent. In Thoroughgood v. Cole, 2 Coke 9, 76 Eng. Rep. 408 (C.P. 1582), a person who could not read signed a deed after it was read to him incorrectly, and the court held that it was not his deed. In the nineteenth century, this doctrine was extended to persons who could read but were misled into signing documents. Foster v. Mackinnon, L.R. 4 C.P. 704 (1869). Discussed in 8 Holdsworth, , History of English Law at 50 (1936)Google Scholar.

254. 2 Coke, Institutes at 483. The only printed evidence to the contrary is a case in Rolle's Abridgement that allowed a claim of duress of goods. Rolle, however, apparently regarded the case as atypical, for he wrote that duress of goods permitted avoidance of a deed “comment que ne soit ascun dures fait al son person.” Rolle, Abridgement at 687, Duress No. 3.

255. E.g., Astley v. Reynolds, 2 Strange 915, 93 Eng. Rep. 939 (K.B. 1731); Irving v. Wilson, 4 T.R. 485, 100 Eng. Rep. 1132 (K.B. 1791). cited by Dawson, Economic Duress—An Essay in Perspective, 45 Mich. L. Rev. 253, 256 (1947).

256. When an American court explained that it might allow duress of goods as a defense to a claim on contract, it acknowledged that it was making an exception to what was considered the general rule. Sasportas v. Jennings & Woodrop, 1 Bay 70 (S.C. 1795).

257. E.g., Sasportas v. Jennings & Woodrop, 1 Bay 470 (S.C. 1795); Collins v. Westbury & Brown, 2 Bay 211 (S.C. 1799); Chamberlain v. Reed, 13 Me. 357 (1836); Dwinel v. Barnard, 28 Me. 554 (1848) (dissent); Lovejoy v. Lee, 35 Vt. 430 (1862); Buford v. Louisville & Nashville R.R. Co., 82 Ky. 286 (1884); Adams v. Schiffer, 11 Colo. 15 (1887).

This account of duress of goods largely follows that of Dawson. Dawson, Economic Duress at 256. Atiyah states that duress of goods was “whittled away in the nineteenth century as [a] defense … to actions on executory contracts” but provides no evidence that such a defense existed earlier. Atiyah, , Rise and Fall at 435Google Scholar.

258. Pope, H. M. R., A Treatise on the Law and Practice of Lunacy, 227–29 (1877)Google Scholar.

259. Lang v. Whidden, 2 N.H. 435 (1822); Mitchell v. Kingman, 22 Mass. 431 (1827).

260. Gore v. Gibson, 13 M. & W. 623, 153 Eng. Rep. 260 (Ex. 1845) (citing Kent's Commentaries); Molton v. Camroux, 2 Ex. 487, 154 Eng. Rep. 584 (1848).

261. The consensus theory could not directly explain the incapacity of mature children, married women, slaves, and certain seamen. Story, , A Treatise on the Law of Contracts at §§ 35–79 (1844)Google Scholar. A consensus analysis would have required the assumption that these persons were in fact incapable of contracting.

262. See text at notes 255 and 256 supra.

263. Washington, , Damages in Contract at Common Law, 47 L.Q.R. 345, 363 (1931)Google Scholar.

264. Barton, , Contractual Damages and the Rise of Industry, 7 Oxford J. Legal Stud. 40 (1987)CrossRef Google Scholar. According to Barton, “If, after Hadley v. Baxendale, remoteness of damages was a question of law in all cases, the decision merely completed a development which had begun long before.” Id. at 52.

265. Id. Foreseeability of damages was discussed in Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (Ex. 1854).

266. Paradin v. Jane, Aleyn 26, 82 Eng. Rep. 897 (K.B. 1647) (act of war); Williams v. Hide, Palmer 548, 81 Eng. Rep. 1214 (K.B. 1628) (death).

267. See text at note 218 supra.

268. In Armstrong v. McGhee, Add. 261 (Pa. C.P. 1795), the Court held a joke sale of a horse to be binding and did not clearly analyze the issue in terms of intention or consensus, although the court viewed contract as a product of “an agreement of mind.” An American case more suggestive of consensus theory was Keller v. Holderman, 11 Mich. 248 (1863), holding no contract where a transaction was entered into as a frolic and banter. In England, the issue of intention to create legally binding relations was addressed in Carlill v. Carbolic Smoke Ball Co., 2 Q.B. 484 (1892), 1 Q.B. 256 C.A. (1893). See Simpson, , Quackery and Contract Law: The Case of the Carbolic Smoke Ball, 14 J. Legal Stud. 345 (1985)CrossRef Google Scholar. Baron Gilbert discussed a version of intention to create legally binding relations: “[I]f there be any words whatsoever that shew an Intention to be Obliged, our Law will Create an Assumpsit[.] But if the words do not import an Intention to Contract they will not be Obligatory.” Gilbert, Of Contracts, fol. 65.In connection with the doctrine of consideration, he wrote that “the Justice of the Demand Arises from the Intention of being Obliged on the Consideration received…” Id. at fol. 40.Moreover, “[w]here the solemnities of Law [a deed and seal] are wanting to show a serious intention of the partys [such intention] must be collected from the Consideration.” Id. at fol. 43.

269. Simpson, Innovation at 264 & 275.Note that intention to create legally binding relations was discussed by Pufendorf but not prominently. Id. at 264.

270. The development of frustration of purpose in England, from early hints in the 1830s to full exposition in about 1900, is traced by Simpson, Innovation at 269–73.

271. James Miles v. Thaddeus Stevens, 3 Pa. 21 (1846), aff'g. 3 Clarke 513 (1845). See also Quick v. Stuyvesant, 2 Paige Ch. 84 (N.Y. Ch. 1830). Gilmore was unaware of the American version. Gilmore, , The Death of Contract at 139 n.214Google Scholar.

272. The development of a rule on foreseeability of damages has been discussed by Danzig, R., The Capability Problem in Contract Law 68 (1978)Google Scholar. Danzig's conclusions are called into doubt by Barton, Contractual Damages.

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The Development of the Nineteenth-Century Consensus Theory of Contract

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