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Merchant Courts, Arbitration, and the Politics of Commercial Litigation in the Eighteenth-Century British Empire

Published online by Cambridge University Press:  08 June 2016

Christian R. Burset
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Extract

John Locke worried that the common law was bad for business. Although he recognized the political importance of common law institutions such as juries, he also thought that the cumbersome procedures of English courts might hamper economic development in England and its colonies. The Fundamental Constitutions of Carolina, which Locke helped draft in 1669, tried to reconcile these competing political and economic concerns. Although the Constitutions guaranteed “Freemen” a right to trial by jury, the document also provided for specialized judges in port towns to “try cases belonging to [the] law-merchant.” These commercial judges would allow merchants to settle their disputes “as shall be most convenient for trade,” rather than by the expensive formality of the common law.

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Law and History Review , Volume 34 , Issue 3 , August 2016 , pp. 615 - 647
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Copyright © the American Society for Legal History, Inc. 2016 

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References

1. See Milton, J.R. and Milton, Philip, “Selecting the Grand Jury: A Tract by John Locke,” Historical Journal 40 (1997): 185–94Google Scholar.

2. See, for example, John Locke, An Essay Concerning Human Understanding, reprinted in Works of John Locke (London: C. & J. Rivington et al., 1824), 2.332; and John Locke, “Instructions for the Education of Edward Clarke's Children” (February 8, 1686), reprinted in Electronic Enlightenment (2013), http://www.e-enlightenment.com/item/lockjoOU0020772_1key001doc (December 30, 2015).

3. The Fundamental Constitutions of Carolina (1669), in Works of John Locke, 9.175; see also Armitage, David, “John Locke, Carolina, and the ‘Two Treatises of Government,’” Political Theory 32 (2004): 611CrossRefGoogle Scholar. For Locke's role in the Fundamental Constitutions, see Richard Ashcraft, Revolutionary Politics & Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986), 85, 122 n.164.

4. Fundamental Constitutions of Carolina.

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6. See David Lieberman, “The Legal Needs of a Commercial Society: The Jurisprudence of Lord Kames,” in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. Istvan Hont and Michael Ignatieff (Cambridge: Cambridge University Press, 1986), 203–34; and David Lieberman, “Property, Commerce, and the Common Law: Attitudes to Legal Change in the Eighteenth Century,” in Early Modern Conceptions of Property, ed. John Brewer and Susan Staves (London: Routledge, 1995), 144–58.

7. See David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989).

8. Horwitz and Oldham, “Arbitration,” 137; Hubert Lister Parker, The History and Development of Commercial Arbitration (Jerusalem: Magnes Press, Hebrew University, 1959), 13; and Mann, Bruce H., “The Formalization of Informal Law: Arbitration before the American Revolution,” New York University Law Review 59 (1984): 443Google Scholar.

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For a comparative discussion of debates regarding arbitration and commercial courts in nineteenth-century Britain, France, and the United States, see Claire Lemercier, Un modèle français de jugement des pairs: Les tribunaux de commerce, 1790–1880 (unpublished manuscript, 2012), https://tel.archives-ouvertes.fr/tel-00685544/document (May 16, 2016).

10. Sutherland, L. Stuart, “The Law Merchant in England in the Seventeenth and Eighteenth Centuries,” Transactions of the Royal Historical Society Fourth Series 17 (1934): 154Google Scholar; see also Lieberman, Province of Legislation Determined, 100–101.

11. See, for example, Alexander Justice, A General Treatise of Monies and Exchanges (London: S. and J. Sprint, and J. Nicholson, 1707), 73–82; Amalia D. Kessler, A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France (New Haven: Yale University Press, 2007); Robert Sidney Smith, The Spanish Guild Merchant: A History of the Consulado, 1250–1700 (Durham: Duke University Press, 1940), 3–17; and John Weskett, Plan of the Chamber of Commerce (London: sold by Richardson and Urquhart, 1782), 6.

12. See, for example, Norman S. Poser, Lord Mansfield: Justice in the Age of Reason (Montreal: McGill-Queen's University Press, 2013), 4; and Lieberman, “Property, Commerce, and the Common Law,” 149–50.

13. See, for example, Oldham, James, “On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury,” Ohio State Law Journal 71 (2010): 1031–54Google Scholar; and Shelfer, Lochlan, “Special Juries in the Supreme Court,” Yale Law Journal 123 (2013): 208–52Google Scholar.

14. For example, Joel Mokyr, The Enlightened Economy: An Economic History of Britain, 1700–1850 (New Haven: Yale University Press, 2009), 368–448; Douglass C. North and Robert Paul Thomas, The Rise of the Western World: A New Economic History (Cambridge: At the University Press, 1973), 156; Jean-Laurent Rosenthal and Roy Bin Wong, Before and Beyond Divergence: The Politics of Economic Change in China and Europe (Cambridge: Harvard University Press, 2011), 67–98; and Milgrom, Paul R., North, Douglass C., and Weingast, Barry R., “The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs,” Economics & Politics 2 (1990): 1–23CrossRefGoogle Scholar.

15. Jones, William C., “An Inquiry into the History of the Adjudication of Mercantile Disputes in Great Britain and the United States,” University of Chicago Law Review 25 (1958): 457–58CrossRefGoogle Scholar.

16. See Part II.

17. Claire Lemercier has made a similar argument regarding nineteenth-century resistance to commercial tribunals in England. Lemercier, Un modèle français de jugement des pairs, 345–46.

18. See Section III.A.

19. See Section I.A.

20. See Sections I.B and I.C.

21. See Section I.D.

22. See Section III.B.

23. See Section III.C.

24. French jurists also perceive the dual system of ordinary courts and private arbitration as a distinctly “Anglo-American” model. See Claire Lemercier, “The Judge, the Expert and the Arbitrator: The Strange Case of the Paris Court of Commerce (ca. 1800-ca. 1880),” in Fields of Expertise: A Comparative History of Expert Procedures in Paris and London, 1600 to Present (Newcastle: Cambridge Scholars Publishing, 2007), 115–45.

25. See Francis, Clinton W., “Practice, Strategy, and Institution: Debt Collection in the English Common-Law Courts, 1740–1840,” Northwestern University Law Review 80 (1986): 809Google Scholar.

26. See Christopher W. Brooks, Lawyers, Litigation, and English Society Since 1450 (London: Hambledon Press, 1998), 30; Horwitz, Henry and Polden, Patrick, “Continuity or Change in the Court of Chancery in the Seventeenth and Eighteenth Centuries?” Journal of British Studies 35 (1996): 24–57Google Scholar; and David Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford: Oxford University Press, 2000), 85.

27. C.W. Brooks, “Interpersonal Conflict and Social Tension,” in The First Modern Society: Essays in English History in Honour of Lawrence Stone, ed. A. L. Beier, David Cannadine, and James M. Rosenheim (Cambridge: Cambridge University Press, 2005), 380–82.

28. See Lemmings, Professors of the Law, 197 (estimating that during the eighteenth century, barristers’ fees tripled, while consumer prices doubled).

29. Francis, “Practice, Strategy, and Institution,” 945.

30. Priest, Claire, “Colonial Courts and Secured Credit: Early American Commercial Litigation and Shay's Rebellion,” Yale Law Journal 108 (1999): 2417, 2424–29Google Scholar.

31. See Francis, “Practice, Strategy, and Institution,” 821–24.

32. Ibid., 818 n.31.

33. See Moglen, Eben, “Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law,” Yale Law Journal 93 (1984): 139Google Scholar.

34. Daniel Defoe, The Complete English Tradesman in Familiar Letters, Directing Him in the Several Parts and Progressions of Trade, 2d ed. (London: Printed for C. Rivington, 1727), 237–98.

35. Conklin, Carli N., “Transformed, Not Transcended: The Role of Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey,” American Journal of Legal History 48 (2006): 70, 74Google Scholar.

36. Sheryllynne Haggerty, “Merely for Money”? Business Culture in the British Atlantic, 1750–1815 (Liverpool: Liverpool University Press, 2014), 103; and David Hancock, Citizens of the World: London Merchants and the Integration of the British Atlantic Community, 1730–1785 (Cambridge: Cambridge University Press, 1995), 248–49.

37. See Adrian Leonard, “Contingent Commitment: The Development of English Marine Insurance in the Context of New Institutional Economics, 1577–1720,” in Questioning Credible Commitment: Perspectives on the Rise of Financial Capitalism, ed. D'Maris Coffman, Adrian Leonard, and Larry Neal (Cambridge: Cambridge University Press, 2013), 51.

38. Hancock, Citizens of the World, 244.

39. See, for example, Waddell Cunningham to William Halliday and Hugh McQuoid (June 20, 1756), in Thomas M. Truxes, ed., Letterbook of Greg & Cunningham, 1756–57: Merchants of New York and Belfast (New York: Oxford University Press, 2001), 155. For the same reason, merchants were particularly reluctant to sue “persons of Great Reputation.” See Robert Plumstead to William Plumsted [sic] (1756), GBR/0012/MS Add. 2798, p. 68, Cambridge University Library.

40. C.D. [unidentified merchant] to Robert Smyth (December 11, 1766), C.D. Letterbook, Beinecke Rare Book and Manuscript Library, Yale University (hereafter Beinecke); see also C.D. to Moses Lindo (September 30, 1765), in ibid.

41. Edward Hatton, The Merchant's Magazine: Or Trades Man's Treasury (London: Printed for C. Coningsby, 1719), 257 (quoting a model arbitration agreement); compare Stewart Kyd, A Treatise on the Law of Awards (London: S. Crowder and B.C. Collins, 1791), 2 (noting that whereas lawsuits could only decide single questions, “the variety of transactions” arising “from the nature of improved society” required resolution in a single forum that could “put an end at once to all their disputes”).

42. Waddell Cunningham to Samuel Kimble (November 16, 1756), in Truxes, Letterbook of Greg & Cunningham, 241.

43. For example, before Mansfield's reforms to insurance litigation, it would have been necessary to bring a separate suit against each underwriter. Holdsworth, W.S., “The Early History of the Contract of Insurance,” Columbia Law Review 17 (1917): 106–7CrossRefGoogle Scholar; and Kingston, Christopher, “Marine Insurance in Britain and America, 1720–1844: A Comparative Institutional Analysis,” Journal of Economic History 67 (2007): 389Google Scholar. Common law courts also struggled with suits between partners. See Kelly A. De Luca, “Beyond the Sea: Extraterritorial Jurisdiction and English Law, c. 1570–1640” (PhD diss., Columbia University, 2009), 66. Chancery offered an imperfect alternative for some types of litigation, but its notorious costs and delays seem to have deterred many litigants, especially in smaller matters. See Horwitz and Polden, “Continuity or Change?” 26–27.

44. The availability of the parties’ sworn testimony was especially important. James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 154; and Kyd, A Treatise on the Law of Awards, 2–3; see also Langbein, John H., “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1186Google Scholar.

45. See Oldham, Mansfield Manuscripts, 154; compare Kingston, “Marine Insurance in Britain and America,” 382.

46. In particular, arbitrators were more likely to award specific performance of a contract. See John Mille to Richard Oswald (September 11, 1764), in Letters to Richard Oswald, box 9, folder 21, Beinecke. Although King's Bench sometimes issued orders combining damages awards with specific performance (see James Oldham, English Common Law in the Age of Mansfield [Chapel Hill: University of North Carolina Press, 2004], 68–69), specific performance remained a primarily equitable remedy.

47. As I explain in the next section, parties could bind themselves ex ante to arbitrate disputes, but only by mutual consent. By the eighteenth century, judges could also “refer” cases to arbitration—that is, recommend that the litigants agree to arbitration—a suggestion that the parties typically accepted. Nonetheless, parties averse to arbitration were able to avoid it.

48. Philadelphus Verax, The Knavish Merchant (Now Turn'd Warehouseman) Characterized or a Severe Scourge, for an Unjust, Cruel, and Unconsionable Adversary (London 1661), 5–6. The author described himself as “a cordial friend to his honest (though injuriously oppressed) acquaintance Thomas Crocker.”

49. For example, although the Arbitration Act of 1698, 9 & 10 Will. 3, c. 15, allowed parties to make an agreement to arbitrate enforceable as a rule of court, litigants rarely invoked it until the 1750s.

50. I am now working on an article explaining why this change occurred.

51. Horwitz and Oldham, “Arbitration,” 137; and Parker, Commercial Arbitration, 13.

52. Mann, “Formalization of Informal Law.”

53. Horwitz and Oldham, “Arbitration,” 137, 150; Mann, “Formalization of Informal Law,” 456–63, 475; Moglen, “Commercial Arbitration in the Eighteenth Century,” 139–40, 145; and Oldham, Mansfield Manuscripts, 93.

54. See, for example, Animadversions Upon the Present Laws of England (London: printed for M. Cooper, 1750), 19; and Justice, A General Treatise of Monies and Exchanges, 73–82.

55. See Moglen, “Commercial Arbitration in the Eighteenth Century,” 143 (discussing colonial New York from 1758 to 1762); Horwitz and Oldham, “Arbitration,” 159; Mann, “Formalization of Informal Law,” 473–81; and Lemmings, Professors of the Law, 100–101. This was in part because lawyers learned to bill for arbitration-related services. Brooks, “Interpersonal Conflict and Social Tension,” 381.

56. See, for example, A Detest Against the Common Scheme of Arbitration … (Boston: s.n., 1770).

57. Bennett, Robert J., “Network Interlocks: The Connected Emergence of Chambers of Commerce and Provincial Banks in the British Isles, 1767–1823,” Business History 55 (2013): 1288–1317Google Scholar.

58. Chambers of commerce that provided arbitration services emerged in New York (1769), Glasgow (1783), Jersey (1785), Waterford (1787), Dublin (1780s), and Edinburgh (1792). Robert J. Bennett, Local Business Voice: The History of Chambers of Commerce in Britain, Ireland, and Revolutionary America, 1760–2011 (Oxford: Oxford University Press, 2011), 550. Robert Bennett suggests that one also emerged in London in 1782 under the direction of John Weskett, but he found no evidence that the London chamber amounted to anything more than “a one-man operation without wider impact.” Ibid., 100–101. The emergences of chambers of commerce continued in the United States after the Revolution. See Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977), 148, 317 n.47 (noting the establishment in 1794 of chambers at Boston and New Haven).

59. Earliest Arbitration Records of the Chamber of Commerce of the State of New York (New York: Press of the Chamber, 1913), 124. The New York chamber's judicial functions never seem to have taken on the character of state action. For example, even though the local government occasionally referred disputes to the chamber (ibid.), its charter from George III made no mention of its judicial functions. See Charter of the New York Chamber of Commerce (1770), in The Charter and By-Laws, with a History of the Chamber of Commerce of the State of New York (New York: William Van Norden, 1849), 19. Accordingly, the institution operated by force of reputation alone. See Moglen, “Commercial Arbitration in the Eighteenth Century,” 143–47.

60. British merchants proposed to create a chamber of commerce in Quebec in 1777 specifically to avoid recourse to local courts, which applied French commercial law. See Fabre-Surveyer, Edouard, “The Struggle for English Commercial Law in Canada,” Commercial Law League Journal 34 (1929): 622Google Scholar. The proposal is reprinted in Adam Shortt and Arthur G. Doughty, eds., Documents Relating to the Constitutional History of Canada, 1759–1791, 2nd ed. (Ottawa: J.L. Taché, 1918), 462. Proponents of the Quebec chamber of commerce may have had French merchant courts in mind as a model. See Memorandum by Adam Lymburner (January 24, 1788), PRO 30/8/98/1, p. 118, National Archives, Kew, UK.

61. See Thomas Clarkson, A Portraiture of Quakerism as Taken from a View of the Moral Education, Discipline, Peculiar Customs, Religious Principles, Political and Civil Oeconomy and Character of the Society of Friends (London: printed by R. Taylor and Co. for Longman, Hurst, Rees and Orme, 1806), 83–88 (noting Quakers’ role in setting up a commercial “arbitration court” in Newcastle in 1793).

62. John Weskett, A Complete Digest of the Theory, Laws, and Practice of Insurance (London: Printed by Frys, Couchman & Collier, 1781), viii; see also Clarkson, Portraiture of Quakerism, 88.

63. Bennett, Local Business Voice, 553. For a more detailed comparison between of chambers of commerce and merchant courts, see Lemercier, Un modèle français de jugement des pairs, 241–350.

64. De Luca, “Beyond the Sea,” 56; and Holdsworth, History of English Law, 1.334.

65. Holdsworth, History of English Law, 14.184.

66. Geoffrey W. Clark, Betting on Lives: The Culture of Life Insurance in England, 1690–1775 (Manchester: Manchester University Press, 1999), 20. It is unclear why the court fell into disuse. See Leonard, “Contingent Commitment,” 66. Part of the problem may have been its extremely limited jurisdiction, which was confined to London, to policies on goods, and to claims by the insured. Charles Wright and C. Ernest Fayle, A History of Lloyd's from the Founding of Lloyd's Coffee House to the Present Day (London: published for the Corporation of Lloyd's by Macmillan and Co., 1928), 38.

67. See Baker, J.H., “The Law Merchant and the Common Law before 1700,” Cambridge Law Journal 38 (1979): 306–8Google Scholar. Technically, the medieval piepowder courts were only abolished in 1977, but they had not been used for centuries. De Luca, “Beyond the Sea,” 56 n.2, 68–69.

68. John Brewer, The Sinews of Power: War, Money, and the English State, 1688–1783 (New York: Alfred A. Knopf, 1989), 113–14; Lieberman, Province of Legislation Determined, 13–19; and John Brewer, “The Wilkites and the Law, 1763–74: A Study of Radical Notions of Governance,” in An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. John Brewer and John Styles (New Brunswick: Rutgers University Press, 1980), 136–38.

69. Quoted in Brewer, The Sinews of Power, 92.

70. See, for example Animadversions, 19.

71. Julian Hoppit, “The Use and Abuse of Credit in Eighteenth-Century England,” in Business Life and Public Policy: Essays in Honour of D. C. Coleman, ed. Neil McKendrick and R.B. Outhwaite (Cambridge: Cambridge University Press, 1986), 74–75. Courts of requests also undermined the social hierarchy. See ibid. (noting that courts of requests could “compel ‘persons of quality to submit for small debts to a company of shopkeepers’” (quoting F.H. Blackburne Daniell, ed. Calendar of State Papers, Domestic Series, 1675–1676 [London: His Majesty’s Stationery Office, 1907], 86).

72. Margot C. Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge: Cambridge University Press, 2003), 198–99.

73. Ibid., 200–201.

74. Winder, W.H.D., “The Courts of Requests,” Law Quarterly Review 52 (1936): 371–73Google Scholar; Hoppit, “Use and Abuse of Credit,” 75; and Slatter, Michele, “The Norwich Court of Requests: A Tradition Continued,” Journal of Legal History 5 (1984): 97–107Google Scholar.

75. Brooks, “Interpersonal Conflict and Social Tension,” 374–75. (noting that the periods from 1760 to 1765 and from 1775 to 1785 were especially fertile for the creation of these courts).

76. Charter of Justice for Fort Marlborough (1760), IOR/G/35/12, p. 127, British Library.

77. Lord George Germain, Secretary of State, to Frederick Haldimand, Governor of Quebec (April 16, 1779), Add. MS 21703, p. 81, British Library.

78. The volume of litigation in the London court of requests (measured by suitors’ cash received) more than doubled between 1773 and the end of the century. House of Commons, A Return from the Different Courts of Requests Within the Bills of Mortality, Stating the Amount of Suitors’ Cash 352 (London 1835); see also William Priest, An Account How Many Summonses Are Issued in a Year That Do Not Come to a Hearing for Ten Years Past (1768), COL/CC/CRC/01/002, London Metropolitan Archives (suggesting a 10% increase in case volume between 1758 and 1768 in the London court); John Scrope to Sir Michael Foster (February 26, 1736), F28, Taussig Collection, Foster Papers, Beinecke (noting complaints that the London court has “too much business”). The caseload in the Birmingham court of requests more than tripled between 1772 and 1787. William Hutton, Courts of Requests: Their Nature, Utility, and Powers Described, with a Variety of Cases Determined in That of Birmingham (Birmingham: Pearson and Rollason, 1787). Newcastle bucked this trend, experiencing a decline in the second half of the century. See Brooks, Lawyers, Litigation, and English Society, 40–41. For litigation volume in the Westminster courts, see ibid., 31; and Horwitz and Polden, “Continuity or Change?”

79. Sub-Committee To Enquire into the Practice and Fees of the Court of Requests &c. (January 27, 1774), COL/CC/CRC/01/003, p. 7, London Metropolitan Archives (noting that the clerk of the London court had been suspended twice for malfeasance); Sub-Committee To Enquire into the Practice and Fees of the Court of Requests &ca. (February 21, 1774), COL/CC/CRC/01/003, p. 44, London Metropolitan Archives (noting that some litigants “often lost small Debts rather than go the trouble of attending the Court of Requests” because of its maladministration); see also Winder, “The Courts of Requests,” 377.

80. See, for example, Sir Michael Foster to John Scrope (February 23, 1736), F27, Taussig Collection, Foster Papers, Beinecke; Second Set of Regulations Proposed by the Court of Directors to the General Court, for the More Advantageous Management of the Company's Affairs, and for the Due Administration of Justice in India ([1772?]), IOR/A/2/8, pp. 404–11; Alexander Wedderburn ([1772]), R2903-0-4-E, Edmund Burke Fonds, National Archives of Canada (suggesting an institution modeled on the court of requests for Quebec).

81. Winder, “The Courts of Requests,” 388–89.

82. See Oldham, Mansfield Manuscripts, 175 n.1.

83. See notes 3–4 and accompanying text.

84. Slingsby Bethel, The Present Interest of England Stated by a Lover of His King and Countrey (London: Printed for D.B., 1671), 9.

85. Englands Glory by the Benefit of Wool Manufactured Therin, from the Farmer to the Merchant ([London?]: printed by T. M., 1669), 32–33.

86. Carew Reynell, The True English Interest, Or, an Account of the Chief National Improvements in Some Political Observations (London: Printed for Giles Widdowes, 1674), 16.

87. John Cary, A Discourse on Trade, and Other Matters Relative to It (London: printed for T. Osborne, 1744).

88. J[ohn] Egleton, A Letter Written to a Member of Parliament, Relating to Trade (n.p., 1702).

89. Daniel Defoe, An Essay Upon Projects (London: printed by R.R. for Tho. Cockerill, 1697), 305–12.

90. Richard Lawrence, The Interest of Ireland in Its Trade and Wealth Stated in Two Parts (Dublin: printed by Jos. Ray for Jos. Howes, 1682), 10. The argument remained relevant a century later. Weskett, Complete Digest, viii.

91. See, for example, Animadversions, 19; and Justice, A General Treatise of Monies and Exchanges, 73–82.

92. See Weskett, Complete Digest, xxii.

93. For example, Child specified that judges would be paid set fees based on the value of the sum at issue: 6 d for cases up to £10, 12 d for causes up to £100, and 2 s for causes exceeding £100. Josiah Child, A New Discourse of Trade (Glasgow: R. and A. Foulis, 1751), 102–3. He also provided that court officers would be paid according to a table of fees established by the merchant judges—termed “judiciary merchants” by Child—and confirmed by the chief judges of King's Bench and Common Pleas and the lord chief baron of the Exchequer. Ibid., 103.

94. For example, Defoe, unlike Child, specified that merchants could argue cases themselves or ask “any person” to argue on their behalf. He also provided that the courts would be able to admit as evidence both foreign and domestic affidavits, and that litigants would commence their case by presenting written briefs. Defoe, Essay Upon Projects, 306–9.

95. Child, New Discourse of Trade, 104.

96. For the politics of these authors, see Pincus, Steve, “Rethinking Mercantilism: Political Economy, the British Empire, and the Atlantic World in the Seventeenth and Eighteenth Centuries,” William and Mary Quarterly 69 (2012): 20Google Scholar; Kenneth Morgan, “Cary, John (1649–1719x22),” Oxford Dictionary of National Biography (2007) http://www.oxforddnb.com/view/article/4840 (December 30, 2015); and “Minutes of a Whig Club: 1715,” in London Politics 1713–1717, 15–36, ed. H. Horwitz, W.A. Speck, W.A. Gray, 1981, http://www.british-history.ac.uk/report.aspx?compid=38803 (May 16, 2016); Justin duRivage, “Taxing Empire: Political Economy and the Ideological Origins of the American Revolution, 1747–1776” (PhD diss., Yale University, 2013), 45–46; Robert J. Bennett, “Malachy Postlethwayt 1707–67: Genealogy and Influence of an Early Economist and ‘Spin-Doctor,’” Genealogists’ Magazine 31 (2011): 1–7.

97. Child, New Discourse of Trade, 99.

98. Matthew Decker, An Essay on the Causes of the Decline of the Foreign Trade, Consequently of the Value of the Lands of Britain, and on the Means to Restore Both (London: printed for J. Brotherton, 1744), 101.

99. Malachy Postlethwayt, The Universal Dictionary of Trade and Commerce (London:printed for John and Paul Knapton, 1751), 2.236–39.

100. Bethel, Present Interest, 9. Later authors adopted this language almost verbatim. Compare Child, New Discourse of Trade, 100.

101. Defoe, Essay Upon Projects, 306–9; compare note 44.

102. H.C. Jour. 11.423 (January 31, 1696).

103. A minor exception was a short-lived court to settle disputes over book prices. Copyright Act, 1709, 8 Anne, c. 19, § 4; Importation Act, 1738, 12 Geo. 2, c. 36, § 3.

104. Child recommends that three merchant-judges should constitute a court, “as the judges did lately at Clifford's-inn,” one of the Inns of Chancery. Child, New Discourse of Trade, 102.

105. Stein, Tristan, “Tangier in the Restoration Empire,” Historical Journal 54 (2011): 999Google Scholar.

106. Cecil Headlam, ed., Calendar of State Papers, Colonial Series, America and West Indies (London: Her Majesty's Stationery Office, 1860), No. 264, 42.188 (hereafter CSP Colonial).

107. Ibid., No. 465, 42.108.

108. K.H. Ledward, ed., Journal of the Commissioners for Trade and Plantations (London: His Majesty's Stationery Office, 1920), 9.193.

109. CSP Colonial, No. 328, 31.176.

110. Ibid., No. 654, 36.343. The governor and local merchants suggested that a new tax on transient merchants might level the playing field. Ibid.; see also ibid., No. 328, 31.176 (reporting that local merchants found the court merchant “very grievous and burthensom” because transients, but not local merchants, had the advantage of access to it).

111. See Ian Kenneth Steele, Politics of Colonial Policy: The Board of Trade in Colonial Administration 1696–1720 (Oxford: Clarendon, 1968), 3–18, 35.

112. Holdsworth, “Insurance,” 103–4.

113. Philip Hamburger argues that lawyers collaborated with gentry, who feared that registration would expose defects in their title. Hamburger, Philip, “The Conveyancing Purposes of the Statute of Frauds,” American Journal of Legal History 27 (1983): 354–85Google Scholar. Julian Hoppit, in contrast, contends that much of the landed interest actually supported registration, and he places responsibility squarely on lawyers. Julian Hoppit, “The Landed Interest and the National Interest, 1660–1800,” in Parliaments, Nations and Identities in Britain and Ireland, 1660–1850, ed. Julian Hoppit (Manchester: Manchester University Press, 2003), 91–92.

114. For example, Bethel, Present Interest, 9; and Englands Glory, 33. Many proponents of merchant courts also supported land registration; therefore, they would have been familiar with lawyers’ power as lobbyists.

115. Verax, Knavish Merchant, 6.

116. See Michael Burrage, Revolution and the Making of the Contemporary Legal Profession: England, France, and the United States (Oxford: Oxford University Press, 2006), 448–49; and Horwitz, Henry, “Changes in the Law and Reform of the Legal Order: England (and Wales) 1689–1760,” Parliamentary History 21 (2002): 315Google Scholar.

117. [John Blanch], The Interest of Great Britain Consider'd; In an Essay upon Wool, Tin and Leather … (London: printed for Eman. Matthews, 1707), 115–17.

118. Richard Zouch, The Jurisdiction of the Admiralty of England Asserted Against Sr. Edward Coke's Articuli Admiralitatis (London: printed for Francis Tyton and Thomas Dring, 1663).

119. Child, New Discourse of Trade; and John Praed, An Essay on the Coin and Commerce of the Kingdom Trade and Treasure (Which Are Twins) Being the Only Supporters Thereof Next to Religion and Justice (London, 1695).

120. See Peter Charles Hoffer, Law and People in Colonial America, rev. ed. (Baltimore: Johns Hopkins University Press, 1998), 29–49.

121. Lawyers successfully participated in the French merchant court, for example. Kessler, A Revolution in Commerce.

122. Lemmings, Professors of the Law, 100–101.

123. The Georgia Constitution of 1777 confirmed that state's existing “court merchant,” but proceedings in that court were by judge and special jury. See De Lamar v. Dollar, 128 Ga. 57 (1907).

124. Jeremy Bentham is the most prominent example; others included Joshua Fitzsimmonds and John Lind.

125. See Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014), 133–40.

126. John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (New York: Aspen, 2009), 316–17.

127. Ibid., 351–53.

128. Ibid.

129. See note 6 and accompanying text; Lemmings, Professors of the Law, 11–12.

130. See, for example, Lieberman, Province of Legislation Determined, 25–26, 288; see also Animadversions, 1 (reciting the “frequently used” proverb that “[t]hat no Nation hath better Laws, nor worse executed, than the English”).

131. Fitzsimmonds also suggested that Parliament establish an inferior equity court for cases worth less than ₤100. Joshua Fitzsimmonds, Free and Candid Disquisitions, on the Nature and Execution of the Laws of England, Both in Civil and Criminal Affairs (London: printed for M. Sheepey, 1751), 19, 22–38. For a favorable review, see “Monthly Catalogue,” Monthly Review 4 (March 1751): 378–79.

132. I take the term from duRivage, “Taxing Empire,” 42–56; Kinkel, Sarah, “Disorder, Discipline, and Naval Reform in Mid-Eighteenth-Century Britain,” English Historical Review 128 (2013): 1451–82Google Scholar; and Kinkel, Sarah, “The King's Pirates? Naval Enforcement of Imperial Authority, 1740–76,” William and Mary Quarterly 71 (2014): 3–34Google Scholar. See also James Vaughn, “The Politics of Empire: Metropolitan Socio-Political Development and the Imperial Transformation of the British East India Company, 1675–1775” (PhD diss., University of Chicago, 2009) (describing authoritarian politics as “neo-Tory”).

133. See Christie, Ian R., “Party in Politics in the Age of Lord North's Administration,” Parliamentary History 6 (1987): 59Google Scholar; Marshall, P.J., “Empire and Authority in the Later Eighteenth Century,” Journal of Imperial and Commonwealth History 15 (1987): 110CrossRefGoogle Scholar. Many authoritarian Whigs followed the Duke of Bedford and Lord North, compare Huw V. Bowen, Revenue and Reform: The Indian Problem in British Politics, 1757–1773 (Cambridge: Cambridge University Press, 1991), 172; John Brewer, Party Ideology and Popular Politics at the Accession of George III (Cambridge: Cambridge University Press, 1976); and David Bromwich, The Intellectual Life of Edmund Burke: From the Sublime and Beautiful to American Independence (Cambridge: Belknap Press of Harvard University Press, 2014), 130, but the loyalty of others was harder to identify. For example, Henry Legge described Lord Mansfield, the leading authoritarian Whig jurist, as “the Tory head of a Whig body.” Poser, Lord Mansfield, 135.

134. See Kinkel, “The King's Pirates?” 24.

135. Oldham, “Complexity Exception.”

136. John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003); and Lerner, Renée Lettow, “The Rise of Directed Verdict: Jury Power in Civil Cases before the Federal Rules of 1938,” George Washington Law Review 81 (2013): 458–59Google Scholar.

137. Langbein, Origins, 322.

138. See, for example, Philip Lawson, The Imperial Challenge: Quebec and Britain in the Age of the American Revolution (Montreal: McGill-Queen's University Press, 1989), 131–33 (discussing Mansfield's successful efforts to deny civil juries to Quebec); see also John Campbell, The Lives of the Chief Justices of England, 3rd ed. (London: J. Murray, 1874), 2.553–54 (noting Mansfield's remark, with respect to Scotland, that “[t]he partial introduction of trials by jury seems to me big with infinite mischief, and will produce much litigation… . A great deal of law and equity in England has arisen to regulate the course and obviate the inconveniences which attend this mode of trial.”).

139. For Mansfield's speech, see The North-British Intelligencer: Or Constitutional Miscellany (Edinburgh: s.n., 1777), 5.22. The final act was passed as the Grants of Life Annuities Act (1777), 17 Geo. III c. 26.

140. See Brewer, “Wilkites and the Law”; and Kinkel, “Disorder, Discipline, and Naval Reform,” 1746–77.

141. The North-British Intelligencer, 5.22.

142. John Cannon, ed., The Letters of Junius (Oxford: Clarendon Press, 1978), 211.

143. Ibid., 208–9. Similarly, Horace Walpole grumbled that Mansfield wanted to replace English law with Scotland's. W.S. Lewis, ed., The Yale Edition of Horace Walpole's Correspondence (New Haven: Yale University Press, 1937), 28.67.

144. Lieberman, “Property, Commerce, and the Common Law,” 151.

145. Cannon, Letters of Junius, 209–10.

146. See Navy Bill, 1749, 22 Geo. 2, c. 33; Barwis v. Keppel (1766) 95 Eng. Rep. 831 (K.B.) (per curiam); Kinkel, “Disorder, Discipline, and Naval Reform”; Rosen, Richard D., “Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial,” Military Law Review 108 (1985): 14–16Google Scholar; and Arthur Mitchell Fraas, “‘They Have Travailed Into a Wrong Latitude:’ The Laws of England, Indian Settlements, and the British Imperial Constitution 1726–1773” (PhD diss., Duke University, 2011), 14.

147. Lawson, Imperial Challenge; and Hilda Neatby, Quebec: The Revolutionary Age, 1760–1791 (Toronto: McClelland and Stewart, 1966).

148. See, for example, P.J. Marshall, The Making and Unmaking of Empires: Britain, India, and America c.1750–1783 (Oxford: Oxford University Press, 2005), 205.

149. “London,” Public Advertiser, May 19, 1774, 2.

150. See Lieberman, “Property, Commerce, and the Common Law,” 151.

151. Alexander Grant, The Public Monitor, Or, a Plan for the More Speedy Recovery of Small Debts … (London: printed and sold by the author, 1789), 22.

152. William Blackstone, Commentaries on the Laws of England (1765–69), 3.82.

153. “Art. XV, [Review of Hutton, Dissertation on Juries],” Monthly Review 3 (December 1790): 435–36.

154. See Edmund Burke to Committee of Correspondence of the General Assembly of New York (April 16, 1773), in Thomas W. Copeland, ed., The Correspondence of Edmund Burke (Cambridge: At the University Press, 1958), 2.431.

155. See, for example, Petition from Southwark (April 10, 1780), H.C. Jour. 11.766 (“[T]aking away the Terrors of a Gaol,” wrote petitioners from Southwark, will “defeat the good Intention of the Legislature” in erecting the courts in the first place, i.e., “promoting and encouraging useful Credit amongst the lower Class of People.”).

156. 26 Geo. III c. 38 (requiring real estate worth £20 per annum or a personal estate of £500); see also Finn, Character of Credit, 207–19 (noting an effort in 1780 to abolish the courts’ power of imprisonment altogether).

157. Acts Passed by the General Assembly of the Colony of Georgia: 1755 to 1774 (Wormsloe, GA: s.n., 1881), 420–21.

158. Weskett, Complete Digest, 149.

159. John Philip Dawson, The Oracles of the Law (New York: Legal Classics Library, 1994).

160. Two centuries later, German chambers of commerce, which shared many features with Weskett's proposal, began to publish collections of commercial opinions. See Whitman, James Q., “Commercial Law and the American Volk: A Note on Llewellyn's German Sources for the Uniform Commercial Code,” Yale Law Journal 97 (1987): 169Google Scholar.

161. John Weskett to John Adams (August 23, 1785), in Founders Online, http://founders.archives.gov/documents/Adams/99-01-02-0197 (December 30, 2015).

162. See Grant, The Public Monitor, Or, a Plan for the More Speedy Recovery of Small Debts …, 16 n.† (“It has indeed been objected to the Establishment of Courts of Request that such Courts tend to abolish the Trial by Jury.—I confess I do not see the Force of this Argument. The trial by Jury is certainly an invaluable Privilege … . If, in order to decide Causes legally, five Commissioners are deemed too few, I see no Impropriety in augmenting the Number to twelve and making them take the same Oath which is administered to Jurymen.”); William Hutton, A Dissertation on Juries (Birmingham: printed by Pearson and Rollason, 1789).

163. Thomas Mortimer, The Elements of Commerce, Politics and Finances, in Three Treatises on Those Important Subjects (London: printed for S. Hooper, 1772), 74. Josiah Child had offered a similar argument in the 1690s. See Child, New Discourse of Trade, 105.

164. Oldham, English Common Law, 20–21; and Oldham, James, “Special Juries in England: Nineteenth Century Usage and Reform,” Journal of Legal History 8 (1987): 148–49Google Scholar.

165. “To the Printer of the Gazetteer,” Gazetteer and New Daily Advertiser, March 31, 1774, 1.

166. Samuel Johnson, “London: A Poem in Imitation of the Third Satire of Juvenal” (May 1738), in Poems, ed. E.L. McAdam, Jr. and George Milne (New Haven: Yale University Press, 1964), 61; see also Oldham, “Special Juries in England,” 153.

167. Oldham, “Special Juries in England,” 163 n.35.

168. Quoted in ibid., 149 (emphasis added); see also ibid., 163–64.

169. Oldham, Mansfield Manuscripts, 1.140–41.

170. Oldham, English Common Law, 20–26.

171. Oldham, “Complexity Exception,” 1040–41, 1043.

172. See Shelfer, “Special Juries in the Supreme Court.”

173. See Oldham, English Common Law, 68–69.

174. Milles v. Fletcher, (1779) 99 E.R. 151; 1 Douglas 231 (K.B.).

175. Oldham, English Common Law, 103; Poser, Lord Mansfield, 218; and Lieberman, “Property, Commerce, and the Common Law,” 151.

176. See Michael Lobban, The Common Law and English Jurisprudence, 1760–1850 (Oxford: Clarendon Press, 1991), 114.

177. See note 165 and accompanying text.

178. James Allan Park, A System of the Law of Marine Insurances (London: printed by His Majesty's Law Printers for T. Whieldon, 1787), xlii.

179. Oldham, English Common Law, 72.

180. See ibid., 61 (discussing Mansfield's annoyance at excessive barristers’ fees); and Douglas Hay, “Moral Economy, Political Economy and Law,” in Moral Economy and Popular Protest: Crowds, Conflict and Authority, ed. Adrian Randall and Andrew Charlesworth (New York: St. Martin's Press, 2000), 98–99.

181. See, for example, James Marriott, Plan of a Code of Laws for the Province of Quebec (London, 1774), 61–62; Proceedings of the Governor and Council at Fort William, Respecting the Administration of Justice amongst the Natives in Bengal (London: printed for J. Almon, 1775), 18 (proposing to fine or imprison litigants who engage in certain types of forum shopping); Guy Carleton to Lord Hillsborough (March 28, 1770), CO 42/7, 261, National Archives, Kew, UK (arguing that justices of the peace should have expanded summary jurisdiction); and Alexander Wedderburn, Report on Administration of Justice in Canada (1772), R2903-0-4-E, National Archives of Canada (recommending summary jurisdictions to curtail litigiousness).

182. Priest, Claire and duRivage, Justin, “The Stamp Act and the Political Origins of American Legal and Economic Institutions,” Southern California Law Review 88 (2015): 875–911Google Scholar; see also William Knox, The Controversy Between Great-Britain and Her Colonies Reviewed (London: J. Almon, 1769), 43 (praising the Stamp Act's tendency to curtail litigation).

183. Krikler, Jeremy, “The Zong and the Lord Chief Justice,” History Workshop Journal 64 (2007): 29–47Google Scholar (quoting Rex v. Inhabitants of Harberton [1785] [Mansfield, C.J.]); compare Melissa Ann Macauley, Social Power and Legal Culture: Litigation Masters in Late Imperial China (Stanford: Stanford University Press, 1998), 336 (noting that movements to encourage alternative dispute resolution have often emerged from a concern with social unrest).

184. Oldham, “Complexity Exception,” 1033–34.

185. See Lemmings, Professors of the Law, 85.

186. “Return from Courts of Requests Within Bills of Mortality of Amount of Suitors’ Cash in Court,” in House of Commons Sessional Papers 45.115 (1835); Brooks, Lawyers, Litigation, and English Society, 40–41; and Hutton, Courts of Requests, 374–75.

187. Park, A System of the Law of Marine Insurances, xxxviii.

188. See J.A. Hamilton and Jonathan Harris, “Park, Sir James Alan (1763–1838),” Oxford Dictionary of National Biography (2004), http://www.oxforddnb.com/view/article/21274 (May 17, 2016).

189. For example, Thomas Parker, The Laws of Shipping and Insurance, with a Digest of Adjudged Cases (London: printed by W. Strahan and M. Woodfall for T. Cadell, T. Evans, and Brotherton and Sewell, 1775), v; see also Park, A System of the Law of Marine Insurances, xl–xliv (noting that foreign litigants, “sensible of the superior advantages” of English jurisprudence, “fly to this country … [to] have the benefit of its laws”).

190. See Brewer, “Wilkites and the Law,” 138.

191. Holdsworth, History of English Law, 14.197.

192. Blackstone, Commentaries, 3.16 (emphasis added).

193. Sumner v. Lyman, 1 Kirby 241, 245 (Conn. Super. Ct. 1787); see also Mulder v. Cravat, 2 S.C.L. 370, 372 (S.C. Const. App. 1802).

194. Thomas Paine, Thomas Paine to the Citizens of Pennsylvania, on the Proposal for Calling a Convention (Philadelphia: William Duane, 1805), reprinted in Moncure Daniel Conway, ed., The Writings of Thomas Paine (New York: G.P. Putnam's Sons, 1894), 4.457 (emphasis added).

195. See Miller, Darrell A.H., “Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second,” Yale Law Journal 122 (2013): 938Google Scholar n.110.

196. Kessler, Amalia D., “Deciding against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication,” Theoretical Inquiries in Law 10 (2009): 423Google Scholar; and Lemercier, Un modèle français de jugement des pairs, 346–47.

197. See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan and Co., 1920), xxxvi.

198. See Chantal Stebbings, Legal Foundations of Tribunals in Nineteenth Century England (Cambridge: Cambridge University Press, 2007), 314; Arthurs, H.W., “Rethinking Administrative Law: A Slightly Dicey Business,” Osgoode Hall Law Journal 17 (1979): 12Google Scholar; see also Ernst, Daniel R., “Dicey's Disciple on the D.C. Circuit: Judge Harold Stephens and Administrative Law Reform, 1933–1940,” Georgetown Law Journal 90 (2002): 787Google Scholar.

199. Arthurs, “Rethinking Administrative Law,” 11–12.

200. Hamburger, Is Administrative Law Unlawful?, 143; and Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (New Haven: Yale University Press, 2012), 308 (“[O]ne could imagine subsequent American developments that might have created a separate set of administrative courts … as the embodiment of rule-of-law principles … . But that is a path long not taken, and one that our common law heritage probably foreclosed. Access to the ordinary courts to pursue common law remedies was, as Dicey recognized, a core part of our understanding of the rule of law … .”).

201. Hamburger, Is Administrative Law Unlawful?, 206–8.

202. Renée Lettow Lerner, “The Uncivil Jury, Part 1: Americans’ Misplaced Sentiment about the Civil Jury,” Volokh Conspiracy, May 26, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/26/the-uncivil-jury-part-1-americans-misplaced-sentiment-about-the-civil-jury/ (December 30, 2015); Renée Lettow Lerner, “The Uncivil Jury, Part 3: The Perils of Jury Trial, Efforts to Control Juries, and the Deceptive Allure of Nullification,” Volokh Conspiracy, May 27, 2015, 3, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/27/the-uncivil-jury-part-3-the-perils-of-jury-trial-efforts-to-control-juries-and-the-deceptive-allure-of-nullification/ (December 30, 2015).

203. Later, Anti-Federalists also emphasized the role of civil juries in private disputes, largely because they were sympathetic to debtors. Over time, that sympathy “came to be seen as a liability.” Lerner, Renée Lettow, “The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial,” William & Mary Bill of Rights Journal 22 (2014): 826–29Google Scholar. Earlier radicals’ insistence on civil juries was not based on their friendliness to debtors; many radicals were merchants who were likely to be creditors, at least in some cases.