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solemnly settled, no particular usage shall be ad-
mitted to weigh against it," said Lord Mansfield in
1761, declining to make any question, upon evidence
of this or that merchant's opinion, of the negotiable
quality of a bill payable to order and indorsed over
without express restriction. "People talk of the
custom of merchants," added Sir Michael Foster.
" This word Custom is apt to mislead our ideas.
The Custom of Merchants, so far as the law regards
it, is the Custom of England ... we should not
confound general customs with special local cus-
toms." ^ It is interesting to notice that this decision
was reported by none other than Blackstone himself
Not quite a generation later (1787), Justice
Bailer said in a renowned mercantile case : ^

Before that period [i.e. about 1750] we find that in
courts of law all the evidence in mercantile cases was thrown
together ; they were left generally to a jury [i.e. the rules
were treated as matter of usage to be proved by evidence,
without distinction of law and fact], and they produced no
established principle. From that time we all know the
great study has been to find some certain general principles

1 Edie V. East India Co. 1 W. Bl. 295.
- Lickbarrow v. Mason, 1 Sni. L.C. 11th ed. at p. 704.


which shall be known to all mankind, not only to rule the
particular case then under consideration, but to serve as a
guide for the future. Most of us have heard these principles
stated, reasoned upon, enlarged, and explained, till we have
been lost in admiration at the strength and stretch of the
human understanding.

More than a century has passed since these
words were spoken, and the development of the
law merchant as part of the Common Law of
the English-speaking world has continued without
ceasing. Being thus embodied in our system of
legal precedents, it has inevitably lost something
of its closeness of touch with actual mercantile
practice. It is as much " scientific " as any other
branch of English case-law, and the reasoning of
trained lawyers on the settled rules of the law
merchant does not always bring out results which
appear to men of business to satisfy the require-
ments of commerce. Yet the ancient character of
the law merchant has not wholly disappeared, for
evidence of living general usage is still admissible
to add new incidents to its contents provided that
they do not contradict any rule already received.^
Thus the whole law of bankers' cheques (which only

1 Cur. per Cockbiirn, C.J.,in Ex. Ch. Goodwin v. Roharts{\?>7b)
L.R. 10 Ex. 337, 346, 352-3 (the decision was affirmed by the
House of Lords, 1 App, Ca. 476, but this point M-as not expressly
dealt with).


of late years liave become common outside English-
speaking countries) is founded on comparatively
recent usage,^ and negotiable debentures are now
recognised by our courts." In this department the
rule of antiquity has no place.

In yet another class of cases we meet with the Usage of

the country

word " custom." This is where a general and well- or of trade

. read into

understood usage in a particular district, or among contracts
persons carrying on a particular kind of business, or
dealing in a particular market, has been allowed,
not indeed to impose a positively binding law, but
to affect, and sometimes to affect very materially,
the interpretation of contracts made by parties who
are presumed to have done their business with tacit
reference to such usages. Proof of a "custom of
the country " or " custom of trade " is admissible
not merely to determine the meaning of expressions .
used in a special sense, but to add whole new terms
to contracts.^ This perhaps goes near, in some
applications of the principle, to evading tlie con-
ditions required for the establishment of customs in

' L.R. 10, Ex. 351. Even among English-speaking men of
liusiness there are divergences in modern practice. Thus the use
of crossed cheques is unknown in tlie United States.

^ BechvMnaland Exj)loration Co. v. London Trading Bank
[1898] 2 Q.B. 658 ; Edelstein v. Schuler d- Co. [1902] 2 K.B. 144.

^ See authorities referred to in Anson, Latv of Contracts, 12tli
ed. 293.



the strict sense ; although it seems to have been at
one time supposed that those conditions must be
satisfied.^ But the principle, as now understood, is
simply to give effect to the intention of the parties,
and any indication of a contrary intention will
exclude the so-called customary construction of the
terms, or customary additional terms, as the case
may be. The present writer has suggested elsewhere
that it might be better not to use in this connection
the word " custom " or at least to speak by pre-
ference of " usage." " We have here to do with
a canon of interpretation, not with a distinct source
of law.

1 In the leading case of Wifjrjlcsioorth v. Dallison, Doug. 201,
1 Sm. L.C. 11th ed. 545, the usage relied on and upheld by the
Court was pleaded as an ancient custom.

^ Principles of Contract, 8th ed. p. 266. Sir W. Anson {loc. cit.)
appears purposely to avoid the word "custom."



[Cp. " The Reiiortcrs arranged and cliaracterised witli incidental
remarks." By John "William Wallace. 3rd ed. Philadelphia, 1855,
4th ed. by F. F. Heard, London, 1882, cited as Wallace on the
ReiJorters ; Kent's Commentaries, Lect. xxi. ; and Dr. H. Brunner's
essay on the Sources of English Law in Select Essays in Anglo-
American Legal History, Boston, Mass. 1908, vol. ii. Accounts
"of the better-known reporters may be found under their names in
the Dictionary of National Biography, and also, as to those who
were or afterwards became judges, such as Sir Edward Coke, in
Foss's Biographia Juridica, London, 1870.]

Coke, in the Preface to the Sixth Part of his what are


Reports, suggests that Moses was the first reporter.
The case of the daughters of Zelophehad, narrated
at the beginning of the 27th chapter of the Book
of Numbers, is not cited by him in this connection,
though he cites it elsewhere ^ to show that " in this
point, as ahnost in all others, the Common Law
was grounded on the law of God." That casa is

' Ratcliff's Ca. 3 Rep. 40rt, h : " This case seemed of great
difficulty to Mo.scs, and therefore, for the deciding of that question,
Moses consulted with God."



stated with great clearness, and expressly as a
binding precedent, and moreover it was actually
vouched within quite recent years by the Jews of
Aden when they petitioned the Government of
India to be excluded from the Indian Succession
Act.^ Law reports, however, cannot exist in any
proper sense unless and until the habit of relying
on decided cases for guidance, and bringing them
before the courts in argument, has become well
settled. The Eoman lawyers, as we have said,
relied (with strictly limited exceptions) not on
decisions but on opinions. Accordingly the litera-
ture of Roman law contains nothing answering to
our reports ; while a few volumes of collected
arguments and opinions like those of Fearne and
Hargrave are the nearest analogy we can show to
one important class of the materials out of which
the Corpus Juris was framed. Reports, again,
nmst be distinguished from the official records of
the court itself. These are kept for the purpose of
establishing the rights of parties in each particular
case, or justifying whatever acts may have to be
done in execution of the judgment. They are not
intended, in the first line, for the general use or

' Sir Coxirtenay Ilbcrt, 'The Government of India, p. 333, 2nd
ed. 1907.


instruction of lawyers, and they may or may not
indicate on their face the reasons of any decision
or the points of law that were in issue. The
Botuli Curiae Regis published by the Kecord Com-
mission in 1835, and the supplemental publication
of Rolls of liichard I.'s time, edited by F. W.
Maitland,^ carry us as far back in the records as
1194. These are the earliest consecutive judicial
records known to exist anywhere. Narratives of
legal proceedings, on the other hand, occur in
chronicles as incidents in the general history.
Thus the chronicler of a religious house naturally
made mention of lawsuits in which the interests of
the house, or of the order, were involved. Notices
of this kind may be of considerable value : Mr. M.
M. Bigelow has collected a goodly number of them
in his Placita Anglo- Norm annica?' Still they are
not reports as the term has been used by English-
speaking lawyers for three centuries or more. Re-
porting begins when cases are collected of set
purpose for professional use and study, and may be
said to be full-grown when learned persons make it
their business to attend the courts and take notes,

1 Publications oltlie Pipe Roll Society for 1891.

^ Flacita Anylo-Normannica: laiv cases from William I. to
Richard I. preserved in historical records. By Melville Madison
Bigelow, London, 1879.


for that purpose, of sucli cases as appear to them
likely to be useful.
Origins in The book iiow known as Bracton's Note Book,

England :

Bracton's and edited by F. W. Maitland,^ may perhaps fairly

Note Book.

be reckoned a book oi reports. Lt so, we may
claim for Henry of Bratton, under whose direction
and for whose use it was almost certainly compiled,
I the honour of having been the first of our reporters
as well as the first methodical English text-writer.
The contents of this book " may be briefly described
as transcripts of entries on the judicial rolls of the
first twenty - four years of Henry III.," - that is,
from A.D. 1218 onwards. Entries of this early
period give us, for reasons which are part of the
substantive history of the law, much fuller informa-
tion as to what really happened in court than
the more elaborate and formal pleadings of the
later common-law system. The only thing which
need make us hesitate to call the Note Book a
book of reports is the absence of any indication

^ Bracton's Note Book: A collection of cases decided in the
King's Courts during the reign of Henry III., annotated by a
lawyer of that time, seemingly by Henry of Bratton. Edited
by F. W. Maitland. London, 1887. 3 vols. The current form ,
" Bracton " is now known to have originated in one of the \
commonest of medieval clerical errors ; it would perhaps be the \
best way to go on citing the book as "Bracton," but to give the \
man his real surname, "Bratton."

2 Maitland, op. at. i. 63.


that it was meant to be communicated to the
profession in general, or used by Bratton himself
otherwise than as material for his treatise on the
laws of England. It is really half way between
reporting and the " commonplacing " of later times.
Much later, and in a roundabout fashion, part of
the matter contained in the Note Book passed
into English legal literature. Maitland has shown
that the cases of Henry Ill.'s reign noted in Fitz-
herbert's A hridyment, the main repertory of case-law
for sixteenth-century lawyers, were derived from the
Note Book.^

There is no proof that reports of cases were Tiie Year

" . . Books.

taken down at the time, for ordinary professional
use, before the late years of the thirteenth century.
Sir John Davis, in the Preface Dedicatory to his
Reports (1628), accepted as literal history what
Chaucer says of the Serjeant-at-law in the Prologue
to the Canterbury Tales :

In termes had he case and domes all,

That from the time of king Will, were i-fall.

But we must take this as a poetic and humorous
exaggeration ; for if Chaucer's contemporaries had
really possessed anything like a set of reports going
back to the twelfth century, it is not very likely

^ Bracton's A^ofe Book, i. )i. 117.


that they would have all perished, and most unlikely
that we should not have heard of their existence
from any other writer.^ From the year 1292 we

I have a series of rei3orts of cases decided, partly
by Edward I.'s judges on their circuits " in eyre,"

I partly before the Courts at Westminster. By good
fortune these reports of Edward I.'s reign remained
unprinted until within recent times. They were
edited by the late Mr. Horvyood with excellent
care and skill, and furnished with an English
translation. Here, and in Mr. Nichols's edition of
the contemporary text-book known as Britton — a
model of such work — a student may best make
himself familiar with the Anglo-French '^ which was
the official language of the Courts down to the
fourteenth century, and in which reports were
written as late as the close of the seventeenth. The
language of Britton and the earlier Year Books is far
from being corrupt French or a mere jargon.^ For
fN quite three centuries after the Norman Conquest
/ French was the current speech of gentlefolk in
England. Being transplanted into England from

1 Cp. Horwood, Preface to Year Book, 30 & 31 Ed. I., p. xvi.

2 It had ceased to be Norman before the tliirteenth century.
See Pollock and Maitland, IT. EL. i. 65, 66.

3 "The language of Britton resembled very nearly that of
Joinville" : Nichols, Introd. p. xlvi.


Normandy, and continuing to live as a true French
dialect, it developed genuine peculiarities of its own,
as Sir James Murray lias shown in his Introduction
to the Oxford English Dictionary, and Prof. Skeat in
the second volume of his work on English Philology.
F. W. Maitland more lately carried the search
farther.^ When Chaucer's Prioress spoke French

After tlie scole of Stratford atte Bowe

she was not aiming at Continental French ; she was
naturally using the Anglo-French in which she had
been brought up. But the following line :

For French of Paris was to her unknowe,

seems to show that the transfer of the English con-
nection with France from Normandy to Aquitaine,
and the development of her Continental power and
policy under the Plantagenets, were in Chaucer's
time fast assimilating the French of England to
the* standard of France. Tt was old-fashioned and

p erhaps even slightly ludicrous to speak Ant-^ld-
French in good society, a nd the dialect, condemned
to linger in an obscure and artificial life, became
ungrammatical and poverty-stricken, and expired

' See the section "Of the Anglo-French language in the early
Year Books" in liis Introduciion to the Year Books of 1 & 2 Ed.
II. Selden Society, 1903.


in the latest reports of the Restoration period as
an ignominious jumble of corrupt French eked out
with Latin and English. Before proceeding to any
further account of the Year Books, it may be useful
to give a specimen of the language in its several

Anglo- Living Anglo-French, Thirteenth Century, Y.B. 20


and its de- Ed. I. (a.d. 1292), pp. 192-3.


Howard [arguing]. Sire, par ceu fet ne put yl vocher ;
par la resone ke al oure qant ce fet fut fet, sy fut le Roy
Henri, ke dunke fut, en prison : e desiconi le governour e
le chef de leis fut en prisone, sy fut la ley en prisons, issi ke
a eel oure qant le fet &c. ne aveit yl nule ley : par quey le
fet et le feffement est nul en sei.

Sir, lie cannot vouch by this deed ; for the reason that
at the time when this deed was made, King Henry [HI.],
who then was, was in prison : and inasmuch, as the governor
and the head of Law \leis = leges, sc. leges Angliae] was in
prison, the law itself was in prison ; so that at that time
when the deed [was made] there was no law : therefore the
deed and the feoffment is void in itself (Horwood's Transl.).

This, it will be seen, is pure and grammatical
French. The language of tlie treatise Ze Court
de Baron, probably of the early fourteenth century,
published by the Selden Society, is very similar.



Decaying Anglo-French, Sixteenth Century, Y.B. 12
Hen. VIII. (A.D. 1520), p. 3. (The question
was whether it was a trespass to take " ununi
canem vocatuni a blood-hound.")

Newport and Newdigate [arguing]. Semble que toutes
fois ou on a ascun tort ou damage, la ley done a luy un
remedy, et ceo per voye daccion ; donq icy, il y ad fait a moy
damage per cet prisel, car cement que cet cbien soit chose
de plaisir, uncore il est profitable pur buntmg, ou pur ma j-^o*^^"^*^
recreacion. Car si j'ay un popingay on thr_usli, que chante ^ '2^
et refraische nies esprits, ceo est grand confort a moy, et
donq si ascun prend ceo de moy, il fait a moy grand tort.

It seems that whenever a man has wrong or damage,
the law gives him a remedy, and that by way of action :
here then is damage done to me by this taking, for although
the dog be an object of [mere] pleasure, yet he. is profitable
for hunting, or for my amusement. For if I have a popin-
jay or thrush which doth sing and refresh my spirits, this is
great comfort to me, and so if any one take it from me, he
doth me great wrong.

Here the French is an artificial version of what
was really said in English in Court. The grammar
and inflections are degraded (the contracted termina-
tions often prevent one from seeing exactly how far
the degradation had gone), and now and then the
reporter puts in an English word rather than be
at the pains of finding the French equivalent, but
still it may be called French of a sort. The French


of Plowden's Reports (a.d. 1578) is, if anything,
better than that of the latest Year Books ; Plowden,
however, was an exceptionally learned writer. The
same may be said of Sir John Davis, in whose
reports of Irish cases, dating from the early part
of the seventeenth century, the language is not
sensibly better or worse. By this time it was a
purely conventional written language, and probably
no attempt was made to observe any true French
pronunciation when there was occasion to read
passages from the Year Books or early Statutes in
Court, or when arguments were conducted in law-
French in the Inns of Court, as they still sometimes
were as late as the Kestoration.^

Deye7ierate Ayiglo - Freiicli or "law -French." Seven-
teenth century. Eolle's Reports, i. p. 189.

Coke : Ceo u'est d'estre fait nisi request soit fait, come si
jeo sole oblige a paler un somme al jour certein sur request
ceo n'est ascun dutie devant request (R. \i.e. reporter].
Quajro ceo car Haughton semble a disallower ceo, car il
shake son capit \sic\ al ceo).

Dyer's Reports, 188&, in the notes added in ed.
Pas. 37 Eliz. Carnes drew his sword sur le stairs de Court

' Dugd. Ori(j. Jarid. \\ 209.


de Requests que est hors de view de ascuu des Courts, & la
si son indictment ad estre bien drawn il duist aver le
punishment come icy.

Richardson, ch. Just, de C. Banc al Assises at Salisbury
in Summer 1631. fuit assault per prisoner la condemne
pur felony que puis son condemnation ject un Brickbat a le
dit Justice que narrowly mist, & pur ceo immediately fuit
Indictment drawn per Noy envers le prisoner, & son dexter
manus ampule & fix al Gibbet sur que luy mesme immediate-
ment hange in presence de Court.

This, it is needless to point out, is the last
stage of corruption. All pretence of conformity
to French grammatical forms or of preserving a
substantially Frencli vocabulary has disappeared.
" Patres conscripti took a boat and went to
Philippi " is as much Latin as this stuff is French.
Such a jargon had nothing left for it but to perish.

The Year Books which were printed earlier than The folio
those of Edward I. have fared much worse. They Books,
were published at various dates from 1561 onwards,
but the collected folio edition of 1678-9 has super-
seded the earlier ones for all purposes except those
of the curious bibliographer. It is, however, any-
thing but conformable to the modern standard of
editing or satisfactory in use.^ The size is cumbrous,
and the Gothic type, which was retained in law-

^ For a specimen of this edition contrasted with a critical text
see 17 Ed. III. ed. Pike, Introd. p. xxvi.


books, for no sensible reason, long after Eoman
type was generally adopted, is unpleasant to the
eye. Words that were abbreviated in the MSS.
are printed in the same fashion, and moreover it is
now certain that the MSS. were read and reproduced
with inadequate care, to use the mildest possible
term, in the matter of abbreviations and otherwise.
A new critical edition would be a great help to
the historical study of the Common Law, and
might quite possibly throw light on principles
which have not ceased to be of practical importance,
but there does not seem to be any near prospect
of it. Meanwhile the reports of several years of
Edward III., most of them not included in the old
editions, have been edited by the late Mr. Pike in
the Eecord Office Series, in continuation of Mr.
Horwood's work.^ Then Maitlaud took in hand
for the Selden Society the Year Books of Edward II.,
the worst printed of all in the old edition. The
labours of these scholars now make it possible for a
student to acquaint himself with the language and
style of the Year Books much more readily than he
could have done a generation ago. These books are
not elementary reading, and are not very often

^ Tlie latest volume was published in 1911. See Prof. Geldart's
article in E.H.R. for April 1911 (xxvi. 239), and Dr. Holdsworth
in L.Q.R. for July 1911.


referred to in court nowadays, though oftener than
they were fifty or sixty years ago. Many lawyers in
good business have never read a word of them, and
would barely know how to refer to them. Yet some
knowledge of them is needful for every one who
wishes to know the law as a scholar and not merely
as a practitioner ; and those who pay special atten-
tion to the law of real property not unfrequently
find such knowledge useful in practice. Kent's
opinion, expressed in the second quarter of the
nineteenth century,^ that the Year Books " are
not worth the labour and expense either of a new
edition or a translation," has been refuted, instead
of being confirmed, by subsequent experience on
both sides of the Atlantic.

The reports in the Year Books have every
appearance of being notes taken in court and
written out without much revision ; there is no
trace of the judges or officers of the courts having
been consulted, or the records inspected,- or the
spelling of proper names verified. What is more,
there is no trace of any copies having been officially
preserved, or of the existence of any one authorised

' His Preface to the first volume of Commentaries on American
Law is dated 23rd November 1826.

^ See Bro. Ab. Executor, pi. 22, for an example of the actual
judgment in a case being misreported.


text, or of any payment having been made to any
one on the king's account in respect of any such
work.^ In the face of these facts we cannot accept
the tradition derived from a report on hearsay by
Plowden (if indeed Plowden was speaking of our
Year Books at all, which I gravely doubt),^ and
magnified by Bacon's and Coke's acceptance, that
the Year Books were the work of official and paid
reporters appointed by the Crown. Bacon en-
deavoured, and with apparent success for a time,
to obtain the institution of official reporters, which he
represented as a revival ; but next to nothing came
of it.^ We are not told why the system or custom of
the Year Books, such as it was, had come to an end.

^ Maitland, Iiitrod. to Year Books of Ed. II. p. xii. ; see, too, Pike,
Harv. Law Rev. vii. 266, and Introd. to Year Book 16 Ed. III. pt. 1,
in Rolls Series, 1896. There is really no corroboration of the story
long acceiited. Bacon was interested in adojiting it as an argu-
ment for his scheme of official reporting ; a nd Coke 's historical
i udguien t i^ wnrthlp^w Blackstone improved the legend by
.saying that the Year Books were so called because they were
"published annually"! Gomm. i. 72. Mr. Pike in 1911 pro-
pounded in his introduction to 20 Ed. III., part 2, a sort of middle
theoiy that the Year Books were written by the clerks of the
Court, though not officially. But why should they have done
the work for nothing? or who paid them ?

'^ See Holdswortli, H.E.L. ii. 452, and in xxvii. 278,
XXX. 390, and article on Law Reporting in Ennjcl. Laws of England,
2nd ed. 1907, by the present writer.

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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 17 of 22)