world of Homer and Virgil and Milton and Hebrew Prophets and Psalmists. The training of his earlier life and the bent of his own nature led his footsteps often to those quiet haunts whither have resorted so many minds in the past for rest and refreshment and meditation. He was, as we all know, a herculean toiler in his profession, and I have no doubt that that toil was possible at all only because he could relax and refresh his mind every night by his contact with the free and inspired minds which have uttered their thought and feeling in great literature. He was one of the few men I have known who were deeply interested in literature for the sheer love of it, and who found in it not merely intellectual excitement but deep wisdom for life and rich emotional satisfaction.

Finally, he was deeply interested in his church, and in the maintenance of the spiritual life. Nor was this interest a merely inherited one, for the church in which he worshipped was not the one in which he was reared, but one which he adopted of his own free choice because it appealed to the simplicity of his nature and the demand of his mind for a rational as well as spiritual form of faith. No matter how busy his week days might be, he never failed, if well and in a mere bodily presence. He had a keen appreciation of any religious service in which thought and ethical feeling and simple spirituality were blended. He worked during the week as though life meant nothing but work, and his sudden death is a warning to many a professional toiler that nature has limits which must be respected, but we who saw him in the church on Sunday, and especially his minister, knew that his soul found escape from the ceaseless round of week day toil and communed with the unseen and eternal.

We shall miss him more than words can say from the small group with whom he chose to worship, but our sense of loss we put by for the moment to testify to our gratitude that he has been with us so long.

VOL. XXXIII. C.L.T.-40

LEGAL DEVELOPMENT IN ENGLAND AFTER THE RESTORATION.

Some little time ago I was talking to an eminent historian who was lamenting that the English lawyers who had interested themselves in the history and development of legal ideas and legal procedure in this country had, mostly, set a limit for their investigations at about the time of the Civil War, whereas, said he, it would be most important for historians to have the process completed up to modern times. He said that no one had taken the trouble to investigate what kind of matters chiefly came before the Courts after the Restoration, how they were dealt with, or how the legal ideas governing the decisions of the Courts developed from that date. I acknowledged the justice of the criticism, and during part of the Long Vacation I amused myself by going through the reports of Sir T. Raymond and Levinz, which are the King's Bench Reports from the Restoration to the end of the reign of William and Mary, and making an analysis of the subjects with which the various decisions dealt.1

There are about twelve hundred decisions in all, and the first thing that is noticeable about the list is the comparative dearth of actions in relation to commercial matters. It is not that such matters are ignored. On the contrary, almost every kind of commercial transaction is incidentally referred to somewhere.

The following is, roughly, the result:

64 cases dealt with criminal or quasi-criminal matters; 26 with technical questions on error; 19 with mandamus; 45 with prohibition; 5 with certiorari; 1 with habeas corpus; 1 with quo warranto; 14 with scire facias; 4 with qui tam; 1 with latitat; 1 with audita querela; 6 with duty of sheriff; 12 with escape; 3 with rescue; 1 with hue and cry; 1 with sureties; 21 with bail; 4 with forcible entry; 2 with contempt of court; 5 with outlawry; 40 with questions of pleading: 16 with questions as to trial of actions; 2 with form of writs; 2 with evidence; 1 with writ of inquiry; 3 with execution and process; 1 with attachment; 6 with abatement; 3 with damages; 2 with wager of law; 5 with questions about jurors; 5 with bankruptcy; 2 with satisfaction of judgments; 2 with costs; 2 with accord and satisfaction; 2 with estoppel; 4 with release; 7 with privilege from arrest; 1 with privilege of Parliament; 4 with assize for office; 2 with Courts of Honour; 7 with customs and by-laws of towns; 2 with charitable trusts; 11 with apprenticeship; 1 with extortion by jailor; 1 with constitutional law; 1 with revenue; 2 with royal grants and charters; 1 with poor law; 6 with ecclesiastical law: 3 with husband and wife; 1 with jointure; 10 with dower; 8 with infancy; 32 with actions on awards; 95

Woodward v. Bonithan, Sir T. R. 3, is an application for a prohibition to the Court of Admiralty, to restrain them from dealing with an action upon an agreement for the hire of a ship, on the ground that the agreement was made on land.

Graves v. Sawcer, Sir T. R. 15, is an action by one part owner of a ship against another for fraudulently selling her abroad.

Eliot v. Blake, Sir T. R. 65, is an action in which a question is raised as to the exception of "perils of the sea" in a contract for the sale and delivery of goods.

Mors v. Slue, Sir T. R. 220, is an action on the case against the master of a general ship for goods stolen when on board.

Mustard v. Harnden, Sir T. R. 390, is an action for damages for negligence causing a collision in the River Thames.

Hughs v. Cornelius, Sir T. R. 473, is an action of trover for a ship condemned as a prize. Question as to whether judgment of a foreign prize Court is final.

Sands v. Exton, Sir T. R. 488. Prohibition to the Admiralty Court in reference to the arrest of a ship sailing to the East Indies contrary to the East India Company's charter.

Sayer v. Glean, 1 Lev. 54. Action on bottomry bill.

Collins v. Sutton, 1 Lev. 149. Action on bottomry bond. Stone v. Waddington, 1 Lev. 156. Action for goods sold and delivered.

Anon., 1 Lev. 166. Assumpsit for price of goods sold and delivered.

with ejectment; 29 with replevin 2 with wrongful distress; 32 with rent; 30 with manors and copyholds: 8 with titles: 36 with trespass to land; 50 with covenants relating to land; 18 with devises of land; 4 with attornment; 20 with cases relating to estates in land: 1 with parcels; 4 with formedon: 2 with partition of lands; 2 with prescription as to lands; 3 with nuisance; 1 with ancient lights; 3 with ways; 1 with watercourses; 3 with highways; 3 with waste; 1 with common recovery; 8 with statutes of limitation; 3 with use and occupation: 62 with debt; 55 with assumpsit (except in cases otherwise specified); 2 with account; 4 with conditions in bond; 22 with cases connected with shipping (chatter-party, bottomry, etc.); 7 with actions on wagers; 6 with sale of goods; 5 with marriage brocage; 2 with breach of promise of marriage; 2 with bills of exchange: 2 with quantum meruit; 25 with trover; 66 with slander; 1 with libel; 18 with trespass to goods; 19 with trespass to person; 41 with trespass on the case (for matters other than those specified); 2 with personal negligence; 1 with deceit ; and 49 with actions by and against executors.

Hussy v. Pacy, 1 Lev. 188. Action for breach of covenant not to import certain goods.

Jurado v. Gregory, 1 Lev. 267. Prohibition to the Admiralty with reference to a contract at Malaga to load goods there.

Brown v. London, 1 Lev. 298. Assumpsit on the custom of merchants by drawer against acceptor of a bill of exchange.

Martin v. Delboe, 1 Lev. 298. Statutes of limitation not pleadable on accounts stated between merchants.

Watton v. Weddington, 2 Lev. 7. Action on boomry bond.

Ridly v. Egglesfield, 2 Lev. 25. Case for suing in the Admiralty in respect of ship taken by pirates.

Bolton v. Lee, 2 Lev. 56.

party.

Covenant upon a charter

Cooker v. Child, 2 Lev. 74. Debt upon an indenture of charter party.

Debt upon a charter party.

Rea v. Barnes, 2 Lev. 117.
Burdet v. Thrule, 2 Lev. 126.

merchant against factor.

Action for account by

Fowk v. Pinsacke, 2 Lev. 153. Assumpsit for premium on policy of marine insurance.

Hall v. Huffam, 2 Lev. 188, 228. Assumpsit for price of goods sold.

Cole v. Shallet, 3 Lev. 41. Coke v. Cretchet, 3 Lev. 60. Admiralty for mariner's wages.

Boson v.

Covenant on charter party.
Prohibition to stay suit in

Sandford, 3 Lev. 258. Case against the proprietors of a general ship for damage to cargo.

Kempe v. Andrews, 3 Lev. 291. Trover for ship affreightment.

Horton v. Coggs, 3 Lev. 296. Case on the custom of London, to pay note payable to bearer.

Keech v. Knight, 3 Lev. 315. Assumpsit on sale of a vessel.

Jeffery v. Legender, 3 Lev. 320. Assumpsit on a policy of marine insurance.

These thirty cases are the only cases in all this period in which commercial matters are dealt with at all-in many of them only incidentally. They serve to shew, however, that the commercial community was alive, was chartering and insuring ships, selling goods at home and abroad, deal

ing in bills of exchange and the like, much as their successors have done. There must have been thousands of such transactions. How comes it that they occupied the attention of the King's Court so little? It is often said that there was practically no commercial law before the time of Lord Mansfield, and that it was his ordering and exposition of that law which induced suitors to come into the Courts.2

I doubt very much if this is the true explanation. Contracts very similar to the modern contracts of affreightment, insurance, negotiable instruments, etc., and the wellknown mercantile rules applying to them, had been known and must have been constantly acted upon amongst merchants for a thousand years. When we do get a glimpse of such transactions, during the period in question, they do not assume any questionable shape, but are spoken of by the Law Reporters as if everyone understood them. After all, Lord Mansfield's work was mainly equivalent to a codification of mercantile rules which had been understood and acted upon for centuries. Litigants do not, as a rule, care whether they are establishing a precedent or not. A mercantile jury is by no means a bad tribunal for deciding a mercantile case, and one would have thought that the more the law was systemised and reduced to rules quotable as precedents, the less litigation there would be. Otherwise codification of the law is of very doubtful utility.

I cannot help fancying that the true reason for the lack of commercial cases in the Supreme Court must have been that the merchants found that they could get their disputes settled elsewhere much more expeditiously and cheaply, and without the risk of defeat upon technicalities or the necessity of submitting to antediluvian forms of trial, which

In his well known judgment in Lickbarrow v. Mason, 2 T. R. 63 (1786) Buller, J., says:

"We find in Snee v. Prescott that Lord Hardwicke himself was proceeding with great caution, not establishing any general principle, but decreeing on all the circumstances of the case put together. Before that period we find that in courts of law all the evidence in mercantile cases was thrown together; they were left generally to a jury, and they produced no established principle. From that time, we all know the great study has been to find some certain general principles, which shall be known to all mankind, not only to rule the particular case 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. And I should be very sorry to find myself under a necessity of differing from any case on this subject which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country."