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57. Goss v Withers, ibid, at 690.

58. Lee was the brother of William Lee CJ and a noted authority on ecclesiastical and admiralty matters: WP Courtney [M Kilburn (rev)]‘Lee, Sir George’ in Oxford Dictionary of National Biography.

59. Goss v Withers, above n 56, at 694. For a further reference to Grotius, see Jones v Randall (1774) Lofft, 383.

60. Goss v Withers, ibid, at 692. His De Domino Maris was published in 1702.

61. Ibid, at 693. The relevant passage in a modern edition is found in Voet, J [P Gane (ed)] The Selective Voet Being the Commentary on the Pandects (Durban: Butterworth, 1957 Google Scholar) bk 49, title 15.

62. Goss v Withers, above n 56, at 693.

63. (1765) 3 Burr 1663 at 1670. The relevant passage is found in Pufendorf, above n 37, bk 3, ch 5.

64. Williamson v Losh (unreported) 1774, noted in Chitty, J A Practical Treatise on Bills of Exchange (London: Butterworth, 5th edn, 1818) pp 93–94 Google Scholar is the exception.

65. In both the Exchequer Chamber and House of Lords in Rann v Hughes (1776) LI MS Misc 130 f 134.

66. For an example of in the context of insurance, see Mayne v Walter (1782) 3 Doug 79.

67. Park, J System of the Law of Marine Insurance (London, 2nd edn, 1790) p xliv Google Scholar. For similar remarks, see Millar, J Elements of the Law of Insurance (Edinburgh: 1787) pp v–vi Google Scholar. If Park and Millar had a point they were still guilty of exaggerating the absence of earlier authorities; see Holdsworth, WS The early history of the contract of insurance’ (1917) 17 Columbia Law Review 85 CrossRefGoogle Scholar; Ibbetson, D ‘Law and custom: insurance in sixteenth-century England’ (2003) 29 Journal of Legal History 291 CrossRefGoogle Scholar.

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69. Ballow, above n 45, p 1.

70. Jones, above n 22, p 202.

71. (London, 1790).

72. Ibid, p vi.

73. Ibid, p vii.

74. Ibid, vol 1, p 9.

75. Eg, Simpson, above n 4, at 253, Ibbetson, above n 4, p 220.

76. Out of 507 cases, only 63 post-date 1750 and 192 were from the seventeenth century or before. For these figures, see Baloch, above n 68, at 416.

77. The Declaration of Rights of 1689 contained a clause on juries; see Hoppit, J A Land of Liberty? England 1689–1727 (Oxford: Oxford University Press, 2000) p 24 Google Scholar.

78. Anon A Compendious Library of the Law (London, 1740) p 122.

79. For an account of the operation of the Court of Conscience, see W Hutton Courts of Requests. Their Nature, Utility and Powers Described (Birmingham, 1787).

80. There was a good deal of complaining about the calibre of jurors; see Oldham, J The origins of the special jury’ (1983) 50 University of Chicago Law Review 137 CrossRefGoogle Scholar at 141–144. Some of this criticism was quite specific, eg Anon The Advantages of Settling Disputes by Arbitration (Carlisle, 1795) p 9 ‘the want of local knowledge in jurors, is an evil of no small magnitude’.

81. By a series of reforms in the nineteenth century: (1833) 3 & 4 Will IV c 42 s 26.

82. For the origins of the distinction in theory, see Shapiro, B A Culture of Fact England, 1550–1720 (Ithaca: Cornell University Press, 2003) pp 34–62 Google Scholar.

83. (London, 1680) p 11.

84. Anon ‘of the function of the judge as distinguished from those of the jury’ (1845) 2 Law Review 27.

85. For the traditional role of the jury, see Arnold, MS Law and fact in the medieval jury trial: out of sight, out of mind’ (1974) 18 American Journal of Legal History 267 CrossRefGoogle Scholar.

86. John Baker made the suggestion that issues which appear in the nineteenth century as doctrine were traditionally hidden under the general issue and brought to the surface by procedural reform in a review of Atiyah's Rise and Fall of Freedom of Contract but the implications were not fully developed: JH Baker (1980) 43 Modern Law Review 467.

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88. (1778).The case is overlooked by the nominate reporters. As a decision at Guildhall rather than in banc this is not surprising. Lord Mansfield's note survives: J Oldham The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century vol 1 (Chapel Hill: University of North Carolina Press, 1992) pp 332–333. The case was reported in the newspapers: London Chronicle 30 May 1778; Morning Post 1 June 1778.

89. Morning Post, ibid.

90. (1696) Holt 701 at 702.

91. Baker, above n 4, pp 81–85.

92. Mitnick, J ‘From Neighbor-Witness to Judge of Proofs: the Transformation of the English Civil Juror’ (1988) 32 American Journal Legal History 201 CrossRefGoogle Scholar ; Wood v Gunston (1655) Style 462. For a flavour of the content of court records: Baker, JH ‘Records, reports and the origins of case-law in England’ in Baker, JH (ed) Judicial Records, Law Reports, and the Growth of Case Law (Berlin: Duncker and Humblot, 1989) pp 34–36 Google Scholar.

93. BJ Sellon The Practice of the Courts of King's Bench and Common Pleas vol 1 (London, 1792) p 502: ‘the writ of attaint is now a sound in every case it does not pretend to be a remedy’. Though not used it was not formally abolished until 1825: (1825) 6 Geo IV c 50 s 60.

94. Sellon, ibid, vol 1, p 504; J Archbold The Practice of the Court of King's Bench vol 2 (London: J Butterworth, 1819) p 227. In Atkins v Drake (1824) M'Cle & Young 213 at 229, Chief Baron Alexander described the process of reading the notes of the trial judge in the case of a motion for new trial.

95. For a complete list of situations where the motion could be used, see J Morgan Essays Upon the Law of Evidence, New Trials, Special Verdicts, Trials at Bar and Repleaders vol 2 (London, 1789) p 1, sets out the various grounds: (1) misbehaviour of a party towards the jury; (2) a verdict obtained by fraud, stratagem or inequitable means; (3) gross misbehaviour of the jury; (4) a verdict contrary to the evidence, or a hard action; (5) a verdict against record, or against law; (6) for excessive damages; (7) for insufficient damages; (8) for refusing evidence by, or misdirection or non-direction of the judge; (9) and other causes as irregularity. For an early example, see Bowen v Proctor (1715) in Hamilton Bryson, W (ed) Sir John Randolph's King's Bench Reports 1715–1716 (Buffalo: Hein, 1996 Google Scholar) para 74.

96. The court in banc consisted of the full court in the jurisdiction in which the claim was brought. Typically in contract actions this was the King's Bench.

97. For a summary of the operation of the special verdict, see W Tidd The Practice of the Court of King's Bench in Personal Actions vol 1 (London, 1790–1794) pp 595–596; Sellon, above n 93, vol 2, pp 50–60.

98. Prichard, MJ Non-suit: a premature obituary’ (1960) 18 Cambridge Law Journal 88 CrossRefGoogle Scholar ; Baskerville v Brown (1761) 2 Burr 1229; Dally v Smith (1771) 4 Burr 2148; Clay v Willan (1789) 1 H Bla 298.

99. This method was a favourite of Lord Mansfield; see Oldham, J The seventh amendment right to jury trial: late eighteenth century practice reconsidered’ in O'Donovan, K and Rubin, G (eds) Human Rights and Legal History Essays in Honour of Brian Simpson (Oxford: Oxford University Press, 2000) p 235 Google Scholar. Tidd was also an admirer: Tidd, above n 97, vol 1, pp 597–598. It worked by giving a general verdict, usually for the plaintiff, subject to an opinion of the court in banc on a question drawn up by counsel on both sides on a point of law.

100. Judges remained reluctant to intervene in relation to matters of fact: Smith v Frampton (1695) 1 Ld Raym 62.

101. Grant v Vaughan (1764) 3 Burr 1516 at 1526.

102. Appleton v Sweetapple (1782) 3 Doug 137 at 140. For similar remarks elsewhere, see Tindal v Brown (1786) 1 TR 167 at 169; Sproat v Matthews (1786) 1 TR 182 at 187.

103. Anon ‘of the distinction between law and fact’ (1844) 1 Law Review 37.

104. Berman, HJ and Reid, CJ The transformation of English legal science from Hale to Blackstone’ (1996) 45 Emory Law Journal 437 Google Scholar at 444–451. The doctrine of precedent in the modern sense did not emerge until the nineteenth century; see Duxbury, N The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008) p 18 CrossRefGoogle Scholar.

105. (1321) in Cam, H Year Books of Edward II (London: Selden Society, 1969) p 286 Google Scholar.

106. (1550) Plo 1 at 17. Ibbetson, above n 4, p 146, cf Gordley, above n 4, p 136: ‘One could scarcely imagine more wretched authority for the proposition that a contract at common law is a mutual agreement’.

107. Plucknett and Barton, above n 9, p 228.

108. For a more radical take on this thesis, see Hamburger, P The development of the nineteenth-century consensus theory of contract’ (1989) 7 Law and History Review 241 CrossRefGoogle Scholar.

109. For a discussion of mistake in Equity: see MacMillan, C Mistakes in Contract Law (Oxford: Hart, 2010) pp 38–68 Google Scholar. Mistake in contracting was also being raised in the Court of Conscience, see Hutton, above n 79, pp 164–67.

110. MacMillan, ibid, pp 39–40.

111. Strete's Case (1528) British Library MS Hargrave 252 f 19 v, cited by Ibbetson, above n 4, p 131. For further examples of expectation damages, see DJ Ibbetson The Development of the Action of Assumpsit PhD Thesis (Cambridge University, 1980) pp 363–366.

112. Morgan, above n 95, vol 2, p 1; Sayer, J The Law of Damages (London, 1770) p 201 Google Scholar; (1819) 1 Bligh 582 (note).

113. Sayer, ibid, p 211: ‘one reason for the granting of a new trial…was, that the jury had not in finding the verdict paid a proper attention to the direction of the judge’. For examples, see Barton, J ‘Contractual damages and the rise of industry’ (1987) 7 Oxford Journal Legal Studies 40 CrossRefGoogle Scholar at 46–47.

114. Sayer, above n 112, pp 49–52.

115. (London, 1806).

116. Ibid, p 1. The passage is taken from Blackstone, above n 19, vol 2, p 442.

117. (London: J Butterworth, 1807).

118. (London, 1818).

119. (Paris, 1761). For a short biography of Pothier, see Wilton, G, ‘Pothier (1699–1772)’ (1947) 59 Juridical Review 208 Google Scholar.

120. Jones, above n 22, p 29.

121. The editor of Ballow's treatise was an early champion of Pothier: Fonblanque, J (ed) A Treatise of Equity (London, 1793 Google Scholar) vol 1, pp 3, 28, 115, 121, 341 and 380; vol 2, p 420. For another early reference to Pothier, see Chitty, J A Treatise on the Law of Bills of Exchange (London, 1799) p 10 Google Scholar. The author was the father of Joseph Chitty of contract fame.

122. Beale v Thompson (1803) 3 B & P 405 at 413 and 414; Cooth v Jackson (1801) 6 Ves Jun 12 at 23.

123. Above nn 54 and 56.

124. J Aikin General Biography: or Lives, Critical and Historical of the Most Eminent Persons of all Ages Countries, Conditions, and Professions vol 8 (London: J Stockdale, 1813) p 318.

125. Evans, W A Treatise on the Law of Obligations or Contracts by M. Pothier (London: J Butterworth, 1806 Google Scholar) at 1.1.1§ 1.

126. One important consequence of this was that a discussion of the limits on what could be legitimately willed was also dropped: J Gordley ‘Contract, property, and will – the civil law and common law tradition’ in Scheiber, above n 23, p 82.

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128. Gordley, above n 126, p 80.

129. (1807) 3 Law Journal 297 at 301.

130. There was an even earlier English translation published in America in 1802 by Francois-Xavier Martin as A Treatise on Obligations Considered in a Moral and Legal View (Newbern: Martin & Ogden, 1802).

131. (London: S Sweet, 1826).

132. Comyn, above n 117, p 2; Chitty, ibid, p 3.

133. Comyn, ibid,, p 2.

134. Chitty, above n 131, p 3.

135. See above n 106. Comyn, above n 117, p 2; Chitty, ibid, p 3.

136. Wain v Warlters (1804) 5 East 10 at 16.

137. Chitty, J A Practical Treatise on the Law of Contracts not under Seal (London: S Sweet, 1834 Google Scholar), for example at p 10 where Chitty sets out Pothier's definition of contract. The second edition is 792 pages in length. The first edition was only 397 pages long.

138. Charles Addison's A Treatise on the Law of Contract and Liabilities ex-Contractu (London: W Benning, 1847), which was largely arranged according to the subject matter of the contract, was one exception.

139. (Oxford: Clarendon Press, 1879) p v. For the role of principle in nineteenth century contract law, see Waddams, S What were the principles of nineteenth-century contract law?’ in Lewis, A, Brand, P and Mitchell, P (eds) Law in the City Proceedings of the Seventeenth British Legal History Conference, London, 2005 (Dublin: Four Courts Press, 2007) p 305 Google Scholar.

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141. Chitty, above n 137, p iii.

142. This was not just a matter of the usage of civil juries, which did decline significantly from the 1880s, but a question of where the balance of power between juries and judges lay. On the issue of usage, see Lobban, M ‘The strange life of the English civil jury, 1837–1914’ in Cairns, J and McLeod, G The Dearest Birth Right of the People of England (Oxford: Hart, 2002) p 173 Google Scholar; Hanly, C ‘The decline of civil jury trial in nineteenth-century England’ (2005) 26 Journal of Legal History 253 CrossRefGoogle Scholar.

143. These reforms were known as the Hilary Rules Reg Gen HT 4 Will IV. They are reproduced in (1834) LJ Repts KB 5. When Henry Brougham, in his famous speech on law reform, came to criticise the wide general issue he used assumpsit as one of his examples: (1828) 18 HC Deb 127 at 201. The expert on pleading in assumpsit, Edward Lawes, writing a few years earlier, pointed out that ‘almost every sort of defence might be given in evidence’ under the general issue in assumpsit: Lawes, E A Practical Treatise on Pleading in Assumpsit (London: W Reed, 1810) p 520 Google Scholar.

144. As part of the reforms, fraud had to be pleaded specially, which meant that it had to be specifically identified. In his evidence to the commission which preceded these reforms, Chitty explained that fraud was currently pleaded under the general issue: Second Report into the Practice and Proceedings of the Superior Courts of Common Law (1830) [123] PP Vol XI 11 App B No 4 § 56.

145. As The Civil Law in its Natural Order (London, 1722). A section of Domat's treatise had appeared in a translation by Wood some years earlier: A Treatise of the First Principles of Laws in General (London, 1705). For a discussion of Wood's and Strahan's translations, see Coquillette, D The Civilian Writers of Doctors' Commons, London (Berlin: Duncker and Humblot, 1988) pp 200 Google Scholar and 203–209.

146. Strahan specifically drew attention to Domat's treatment of contract and commercial issues: ibid, pp iii–iv.

147. He was cited by Lee CJ in Ryall v Rowles (1750) Ves Sen 348 at 370. Examples in argument include Harvy v Aston (1740) 2 Comyns 726 at 757; Holdfast v Dowsen (1747) 1 Wm Bla 8 at 11; Robinson v Bland (1760) 1 Wm Bla 234 at 235 and 258; Eyre v Lovell (1782) 3 Doug 66 at 68. References to Domat in judgments are even rarer: Miller v Race (1758) 2 Kenyon 189 at 199; Doe on the Demise Lancashire v Lancashire (1792) 5 TR 49 at 64.

148. Rudden, B Pothier et la common law’ in Monéger, J (ed) Robert-Joseph Pothier, d'hier à aujourd'hui (Paris: Economica, 2001) p 97 Google Scholar.

149. Warren, S A Popular and Practical Introduction to Law Studies (London: Maxwell, 1845) p 757 Google Scholar.

150. Anon (1846) 5 Law Magazine 258: ‘To us there is no law book so pleasing as that of Mons. Pothier, by reason of the extremely clear manner in which the various rules applicable to the law of contracts are expounded’.

151. Evans, above n 125, at 1.1.1§§1-2.

152. G Lubbe ‘Formation of contract’ in K Reid and R Zimmermann (eds) A History of Private Law in Scotland vol 2 (Oxford: Oxford University Press, 2000) p 44.

153. Salmon, T A Critical Essay Concerning Marriage (London, 1794) pp 180–213 Google Scholar. On the similarities, see Ibbetson, above n 4, p 222.

154. Powell refers to several such authorities in the context of the Statute of Frauds: Powell, above n 71, vol 1, pp 286–299. Examples include Moor v Hart (1683) 1 Vern 201; Wanchford v Fatherley (1694) 2 Freem 201; Seagood v Meale (1721) Pre Ch 560; Ayliffe v Tracey (1722) 2 P Wms 65. See also Lobban, above n 4, p 330.

155. (1818) 1 B & Ald 681.

156. Kennedy v Lee (1817) 3 Mer 441.

157. (1818) 1 B & Ald 681 at 683.

158. For the operation of the postal service at this time, see Gardner, S ‘Trashing with trollop: a deconstruction of the postal rules in contract’ (1992) 12 Oxford Journal of Legal Studies 170 CrossRefGoogle Scholar.

159. Pothier, RJ [LS Cushing (ed)] Treatise on the Contract of Sale (Boston: Little & Brown, 1839 Google Scholar) at 1.2.3.1; Chitty, above n 137, p 12; Addison, above n 138, p 38. For a discussion of this issue, see Perillo, J Robert J. Pothier's influence on the common law of contract’ (20042005) 11 Texas Wesleyan Law Review 267 Google Scholar at 278–280.

160. Chitty, ibid, p 11; Addison, ibid, pp 37–38; Leake, SM The Elements of the Law of Contracts (London: Stevens, 1867 Google Scholar) pp 13 and 20–21; Pollock, above n 140, p 8; Anson, above n 139, p 18.

161. (1790) 3 TR 653.

162. (1789) 3 TR 148.

163. Comyn, in the second edition of his work on contract, noted this at the time: Comyn, S A Treatise on the Law Relating to Contracts and Agreements not under Seal (London: Butterworth, 1824 Google Scholar) pp 79–80 and 108.

164. Evans, above n 125, at 1.1.3.1 § 17.

165. Colebrooke, above n 118, p 46.

166. Outlines of the Law of Contracts as Administered in the Courts of British India (London, 1860) pp 2–5. For more detail on Macpherson, see Ibbetson, above n 4, p 227; MacMillan, above n 109, pp 108–112.

167. The Report of the Indian Law Commissioners on the Subject of Contracts (1867–1868) PP HC vol xlix.

168. Macpherson, above n 166, p xi.

169. Leake, above n 160, pp 168–181.

170. (1854) 17 & 18 Vict c 125 ss 83–86; MacMillan, above n 109, pp 82–86.

171. Pollock, above n 140, pp 355–429; Anson, above n 139, pp 116–128.

172. MacMillan, above n 109, pp 136–180.

173. (1852) 8 Exch 40.

174. (1857) 2 H & N 564.

175. (1864) 2 H & C 906.

176. For examples see Pollock, above n 140, pp 389 and 398; Anson, above n 139, pp 121–122.

177. Cox v Troy (1822) 5 B & Ald 474 at 480.

178. Hadley v Baxendale (1854) 9 Ex 341.

179. For a detailed discussion, see Ibbetson, above n 4, pp 229–232, Danzig, R ‘Hadley v Baxendale: a study in the industrialisation of the law’ (1975) 4 Journal of Legal Studies 249 CrossRefGoogle Scholar , Barton, above n 113, Faust, F ‘Hadley v Baxendale: an understandable miscarriage of justice’ (1994) 15 Journal Legal History 41 CrossRefGoogle Scholar.

180. If not totally absent: Lobban, above n 4, pp 542–543.

181. Leake was unusual in this respect. He devoted a whole chapter to damages; see Leake, above n 160, ch 5. Damages did not appear in Pollock's treatise until 1946: Pollock, F [P Winfield (ed)] Pollock's Principles of Contract (London: Stevens & Sons, 12th edn, 1946) pp 528–539 Google Scholar.

182. The way in which intention was used to justify rules of contractual interpretation is perhaps the most blatant example of this. Writing in the 1840s, Colin Blackburn hinted as much, ‘the intention must be collected from the whole agreement, and the Courts have within the last fifty years adopted for this purpose some rules of construction which are perhaps some of them a little artificial’: Blackburn, C A Treatise on the Effect of the Contract of Sale (London: W Benning, 1845) p 151 Google Scholar.

183. Mitchell, P The development of quality obligations in sale of goods’ (2001) 117 Law Quarterly Review 645 Google Scholar at 647–650.

184. Evans, above n 125, vol 2, appendix 2.

185. For Pollock's views on the subject, see Duxbury, above n 140, pp 202–207.

186. Swain, W The changing nature of the doctrine of consideration, 1750–1850’ (2005) 26 Journal of Legal History 47 CrossRefGoogle Scholar at 57–59.

187. Ibid, at 59–61. As part of this process the nature of consideration was stretched so that it no longer reflected the need for exchange which had formed the core of the doctrine.

188. On the law of slow development of the tort of negligence in the nineteenth century, see Ibbetson, D The tort of negligence in the common law in the nineteenth and twentieth centuries’ in Schrage, E (ed) Negligence: The Comparative Legal History of the Law of Torts (Berlin: Dunker and Humblot, 2001) p 47 Google Scholar.

189. Ibbetson, D Unjust enrichment in English law’ in Schrage, E (ed) Unjust Enrichment and the Law of Contract (The Hague: Kluwer Law International, 2001) p 33 Google Scholar.