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Murphy, Bridget --- "Luke v Lyde - An Analysis" [2003] AukULawRw 2; (2003) 9(4) Auckland U L Rev 1140


Luke v Lyde ********

Bridget Murphy[∗]

I. Introduction

This article is a close analysis of the 1759 case Luke v Lyde[1] heard by Chief Justice Mansfield in the court of the King’s Bench. The case arose out of a commercial maritime dispute. Specifically the defendant shipped a cargo of fish for carriage from Newfoundland to Lisbon on the plaintiff’s vessel, Sarah. After seventeen days on the sea, and with four days left to sail, the French captured the Sarah. Three days later she was recaptured by an English privateer and brought into Bideford. The defendant then received the fish at Bideford and sold it in the market for half its value. He then paid half of this to the privateer as salvage money. This resulted in the legal question of what freight, if any, were the plaintiff's entitled to. The answer (and ratio) was that apart from an express contract, freight pro rata is always due where a voyage has been partly performed.[2]

However, this article will show that the historical importance of Luke v Lyde lies beyond its specific facts and black letter law to the case’s location in a time when principles of mercantile law were fresh and developing, when instinctive solutions were made good by reference to ancient sources, and an approach to case law reasoning which has since been largely left behind.

II. The Case in Context

1. The Growth of British Trade and the Problems of Mercantile Law

The period between the Glorious Revolution and the final defeat of Napoleon at Waterloo was marked by a vigorous growth in British economy and trade.[3] The empirical discoveries of the late fifteenth and sixteenth centuries created new geographical conditions that removed the centre of European trade from the Mediterranean cities and shifted it to the seaports that bordered the Atlantic. British foreign trade expanded throughout the sixteenth and seventeenth centuries and as Johnson observed in 1756 “there was never from the earliest ages a time in which trade so much engaged the attention of mankind, or commercial gain was sought with such general emulation.”[4] Naturally, the pressure of mercantile influence on the courts grew more incessant during this time. Between 1690 and 1750, 136 cases were reported on negotiable instruments and 48 on marine insurance.[5]

When Lord Justice Mansfield came to the King’s Bench in 1756, the place of the Law Merchant in English law was considerably unsettled. Existing commercial law principles were concerned mainly with transactions of domestic commerce.[6] While the custom of merchants could be proved in commercial litigation, very few general rules and principles had been established to which isolated decisions could be adjusted. It was patent that many additions needed to be made to the existing rules of English law if it was to be able to deal with the larger transactions of foreign trade.

A general merchant dissatisfaction with the law is evident in the literature of the later half of the seventeenth century. Sir Josiah Child complained “it is well if, after great expenses of time and money, we can make our own Counsel (being Common Lawyers) understand one half of our Case, we being amongst them as in a Foreign Country.”[7] Merchants preferred to settle their disputes outside the realm of the courts. According to Marius “The right dealing merchant doth not care how little he hath to do in the Common Law.”[8] Cary advocated the establishment of “Courts of Merchants... for the speedy deciding all differences relating to Sea Affairs, which are better ended by those who understand them, than they are in Westminster-Hall.”[9]

The academic CHS Fifoot, offers two explanations for the slow development of the relationship between law and commerce,[10] namely the notoriously unreliable state of the law reports[11] and the personality of judges at the time. Of note was John Holt (1642 – 1709) who was appointed Chief Justice of the King’s Bench in 1689 and who dominated the beginnings of the new commercial context. It appears that while Lord Holt appreciated the value of mercantile support as a politician, as a judge he was not prepared to buy it at the sacrifice of legal symmetry. He resisted guidance from commercial-men in his legal reasoning: “litigation was the raw material for the exercise of professional ingenuity, and no protagonist, however influential, could be permitted to dictate the terms upon which his dispute should be resolved.”[12]

2. The Education and Training of Lord Mansfield

Lord Mansfield, William Murray (1705 – 1793), born in Scotland of noble lineage, at the age of fourteen left Scotland for England, never to return. Murray’s intellect was prodigious. In 1723 he was placed first on the list of Kings Scholars, proceeding to Christ Church, Oxford. While Murray knew from the outset, due to studies at Oxford, that he was destined for the English Bar, no formal system of legal education existed and he was left largely to his own devices.[13] He studied Modern Ancient History, Greek and Roman. He also defeated William Pitt (the elder)[14] in a Latin poetry competition on ‘The Death of the King’. In the area of law he read the great Continental natural lawyers like Puffendorf, Grotius and Justinian. As early as 1733 he successfully argued a Scottish case before the House of Lords. In 1742 he became Solicitor-General, entered the House of Commons, and became an indispensable member of government. In 1756 he insisted upon leaving the House of Commons to become Lord Chief Justice of the King’s Bench, and was created Baron Mansfield.

According to Sir William Holdsworth,[15] Lord Mansfield’s Scottish heritage and educational background had a profound impact on his approach to legal reasoning. His Scottish influence helped him to look not for the appropriate legal writ, but the appropriate legal principle in any given case.[16] His informal and diverse legal education fitted him admirably for the work of creating and settling the law merchant. Lord Mansfield came to English law not to destroy, nor to innovate, but to fulfil:[17]

The breadth of his learning prevented him from attaining that accurate knowledge of the development of common law rules which could only come to an English lawyer who had devoted the largest part of his time to the study of its complex technicalities. He approached the common law from the viewpoint of a student of the broad principles of jurisprudence, not from the viewpoint of a student of the evolution of its rules.

Lord Mansfield wanted to make decisions in commercial matters based upon grounds that the merchant, if he could not approve, could understand. This propensity is suggested in his first reported decision, Raynard v Chase[18] in which he stated: “the general usage and practice of mankind ought to have weight in determinations of this sort affecting trade and commerce.” To create this collaboration of judge and merchant Lord Mansfield found the perfect medium, a special jury, chosen with care from among the merchants of the city. Admittedly, this was not an entirely novel idea. In 1645 the Court of King’s Bench had been moved “for a jury of merchants to try an issue between two merchants, touching merchants’ affairs.”[19] But the use of a special jury was both sporadic and without a uniform system and it was Lord Mansfield who converted this occasional institution into a regular one. He trained a corps of jurors to act as a permanent liaison between law and commerce and enquired into the practice and usages of reputable merchants. According to Lord Birkenhead,[20] Lord Mansfield invited the members of the jury to dine with him frequently and there was no greater source of pride at the time to become ‘Lord Mansfield’s jurymen’. When a case arose which involved a point of principle, or some novel practice, he was accustomed to take their verdict subject to a case for the opinion of the full court.

While in some cases Lord Mansfield made express reference to the opinion of his jury members,[21] in Luke v Lyde his Lordship was silent as to any jury-held opinion. However, given the importance of Luke v Lyde[22] to the development of a commercial law principle, one can assume that Lord Mansfield did indeed consult men of commerce in reaching the ratio in the present case.

III. Principle and Precedent

Modern lawyers have a conception of judgments laying down a rule at a certain level of generality, which subsequent judges must, according to the rules of precedent follow; judgments are binding and therefore they make law. This modern approach is an inductive method of discovering the law.[23]

It would be misconceived to suggest that for Lord Mansfield the principles underlying judgments created rationes decidendi or binding precedents in this modern sense. This is largely because English law at the outset of Lord Mansfield’s career had no system of binding precedent, due to the “poverty of the law reports”.[24] It simply would not have been practicable to have a system of binding precedent, when the evidence of what the precedents were was notoriously unreliable.

Accordingly, Lord Mansfield’s approach to the law was deductive. His method of adjudication characteristically involved applying general principles, in the spirit of the law. Although he deemed himself subject to the positive import of precedent,[25] they were for his Lordship more often impotent tools for deciding later cases. Rather, the principles were the rationale from which precedents devolved and precedents were merely concrete illustrations of these principles. This approach to case law reasoning is illustrated by the following passage from a judgment Lord Mansfield delivered in the 1774 case Jones v Randall:[26]

It is admitted by the counsel for the defendant, that the contract is against no positive law; it is admitted too, that there is no case to be found which says it is illegal; but it is argued, and rightly, that notwithstanding it is not prohibited by any positive law, nor judged illegal by any precedents, yet it may be decided on by principles; and the law of England would be a strange science indeed if it were decided on precedents only. Precedents serve to illustrate principles, and to give them a fixed certainty. But the law of England, which is exclusive of positive law enacted by statute, depends on principles; and these principles run through all the cases according as the particular circumstances of each have been found to fall within one or other of them [Emphasis added].

Luke v Lyde is demonstrative of Lord Mansfield’s approach to precedent and principle. In order to ascertain Lord Mansfield’s approach to case law reasoning it is necessary to understand the substantive legal issues of the case. His Lordship identified two points of law that required addressing.[27] The first question is whether any freight is due to the plaintiffs? If answered in the affirmative then the second question to be considered is what freight is due?

Lord Mansfield considered the first question to be a relatively uncontroversial point. He appealed to the contemporary text Molloy, which laid down the principle that “where disability of the ship is inevitable or accidental, without fault of the owner or master, freight is due.”[28] Accordingly, his Lordship held that in the present case there was nothing to prevent freight from being due. “Freight became due from and upon the freighters taking the goods into their possession: and continued due, by the defendants not totally abandoning them.”[29]

The second legal issue required more concentrated legal reasoning. Mr Hussey, counsel for the plaintiff, cited a House of Lords case heard by Lord Chancellor Talbot in 1736, Lutwidge and How v Grey et al,[30] as “a foundation”[31] for his client’s argument. The case apparently stood for the proposition that:

[T]he whole of the freight was due upon the goods sent to Bristol; because the master offered a ship to carry the goods to Glasgow, which was the port of delivery: but as the master declined carrying the other goods to Glasgow (the port of their delivery) they determined that as to them, he ought to be paid only pro rata, as much as was proportionate to his carrying them to Youghall, the place where the accident happened.

Mr Hussey further submitted that, pursuant to the Lutwidge case “the contract is not dissolved by the involuntary accident; that the master had his election to carry them to a port of delivery in another ship; and that if he did not, he shall yet be paid pro rata iternis to the place where the accident happened.”[32]

It is evident that there is nothing substantively different about the facts in Luke v Lyde and Lutwidge and How v Grey, on the points requiring consideration. Pursuant to a contemporary approach to precedent, the earlier House of Lords decision would have been determinative of the legal issues presented by counsel in Luke v Lyde. Indeed, a modern Lord Mansfield would have been bound to apply the earlier precedent on the basis of stare decisis. However the case was not presented by counsel, nor accepted by Lord Mansfield as determinative of the issue at law. Rather, the case is referred to as an example (as opposed to authority) of the ‘principles’ he instinctively ‘found’ in the common law. The problem was approached as a matter of common sense, the solution lying in a mathematical equation: “The master had come seventeen days of his voyage and was within four days of the destined port when the accident happened. Therefore he ought to be paid his freight for 17/21 parts of the full voyage for that half of the cargo that was saved.” [33]

However such ‘common sense’ could not be allowed or expected to appear spontaneously in the mind of the judges. It was important that echoes at least should be heard in the language of recorded experience.[34] Accordingly, Lord Mansfield appealed to codes of ancient and contemporary mercantile law to confirm his instinctive solution. The next part of this paper will elucidate and unravel Lord Mansfield’s references to codes of the past.

IV. Sources of Law

From very early times merchants and mariners regulated their dealings by a set of customs and rules known as the Law Merchant, Law Marine or Customs of the Sea.[35] The fundamental feature of the sea-codes was that they did not purport to represent not the law of one territory, but the custom of all of the sea. This is suggested by the opening sentence of a prominent sea-code: “Here commence the good customs of the sea. These are the good establishments and the good customs on matters of the sea, which the wise men who travelled over the world commenced to give to our predecessors, who put them into the book of the wisdom of the good customs.”[36]

In Luke v Lyde, Lord Mansfield was sensitive to the idea that maritime law was not “the law of any particular country, but the general law of nations.”[37] Accordingly, no source was too vast, too insignificant or too ancient to explore. He confirmed his instinctive mathematical solution with reference to Rhodian Laws, the Judgments of Oleron, the Consolato del Mere, the laws of Wisby and the Ordinance of Louis the Fourteenth. The remarkable feature of the codes is the unity of their evolution as a single distinct and continuous body of maritime custom. It appears thus, on closer analysis, that Lord Mansfield was correct in suggesting that all the elucidated maritime codes were “agreeable thereto”[38] his instinctive solution.

The original source of maritime custom, which Lord Mansfield aptly refers to as “the ancientest laws of the world”[39] is Rhodian Law. This sea-code grew up two or three centuries before Christ in the great maritime centre of Rhodes. It is generally accepted that no authentic text of the Rhodian Code has survived, and thus it is interesting that Lord Mansfield gives as authority for the principle that “the master shall have a rateable proportion, where he is in no fault” articles 27, 32 and 42 of the Rhodian Code.[40]

The Rhodian sea-code remained pervasive for two or three centuries, until the commercial centre of Europe shifted west to Barcelona. The Code of Barcelona, known as the Consulato del Mar, or Book of Jurisdiction of the Sea, was written in the thirteenth century and first printed in 1494. The provisions of the Consulato were more diffuse and its details more elaborate than any of the other sea-codes Lord Mansfield referred, containing two hundred and fifty short chapters. A papal official describing Barcelona at the end of the fifteenth century, said of the laws: “In almost every maritime city the controversies of mariners and of merchants are settled by them, or by laws derived from them, with the greatest authority; and as formerly men spoke of the laws of Rhodes, now everyone speaks of the laws of Barcelona.”[41]

The maritime code pervasive in Western Europe was known as the Rooles or Jugements of Oleron.[42] The origin of the code was the outgrowth of a long succession of decided cases in the local Admiralty Courts on the island of Oleron, each paragraph in the form of a ruling on a case.[43] It was the laws of Oleron that Lord Mansfield used as authority for his instinctive solution in Luke v Lyde, quoting directly from its first and fourth articles.[44] Aside from the fact the code is a written document; Lord Mansfield’s particular interest in the laws of Oleron may be explained by geographical conditions. At the time the judgment in Luke v Lyde was delivered, the island of Oleron (part of Guienne) was under the English crown, and the great wine trade from Bordeaux to England passed close by the island. [45] Indeed so closely was the law of Oleron associated with English maritime customs that its authorship used to be attributed to King Richard the Lionhearted when he returned from the Crusades.[46]

The Laws of Oleron served as a sea-code for North-Western Europe for several centuries. But the Hansa League[47] of the Baltic had come to dominate northern commerce from Hamburg to Novgorod in Russia.[48] The Hansa Headquarters were at Wisby, the capital city of the island of Gotland, which lies South-East of Sweden. In the eleventh century Wisby was the commercial trade centre of Northern Europe, holding a population of some twelve thousand merchants and its own unique currency. In about 1288 it developed an influential international maritime code. The code was compiled for the use and under the direction of prominent merchants and “was submitted to in all causes relating to sea affairs, and past for just on all the coasts of Europe, from Muscovy to the Mediterranean.”[49] It is widely accepted that the Laws of Wisby were heavily derivative of the Laws of Oleron. Thus, it appears that Lord Mansfield was correct in stating that “the thirty-seventh article of the Laws of Wisby is to the very same purport” [50] as the laws of Oleron.

By the fifteenth century, nations were being organised and the common law of the sea was breaking up. This was the period of nationalization of law all over Europe.[51] The Ordinance of Lewis the 14th established in 1618 is indicative of France’s move to national independence. As Lord Mansfield states in Luke v Lyde this code was “collected and compiled under the authority of M. Colbert”[52], an influential minister in the French government, as part of his comprehensive plan for the nationalization and codification of all French law. It appears again that Lord Mansfield was correct in stating in that in this code “same rules are laid down”[53]: the Ordinance was derived from the established customs of the sea, as handed down in the laws of Oleron.

Lord Mansfield’s appeal to foreign codes of mercantile law was not received well by some contemporary commentators. For instance, Junius bitterly stated, “in contempt or ignorance of the Common law of England, you have made it your study to introduce into the Court where you preside, maxims of jurisprudence unknown to Englishmen. The Roman Code, the law of nations, and the opinions of foreign civilians are your perpetual theme.”[54]

However this critique misrepresents the manner in which Lord Mansfield used the sources of law. At no instance in Luke v Lyde did Lord Mansfield ever attempt to substitute ancient maxims for those of the English common law. Rather, he used ancient sources of law as a wealth of principles to guide him upon issues unsettled in England.

V. Procedure

Lord Mansfield made a number of significant procedural reforms to lessen the delay and expense to litigants of his time. During the eighteenth century, a convenient method of isolating a legal issue was to state facts for the opinion of the court after the discharge of the jury. The custom of drafting this statement in chambers enabled lethargic or unscrupulous counsel to adjourn its argument sine die.[55] However, Lord Mansfield propounded that he himself would dictate the case and would require its signature by both counsel before the completion of the trial. This practice was explained in Luke v Lyde, where his Lordship stated:[56]

[H]e took particular care that this should not create delay or expense to the parties; and therefore he always dictated the case to the Court, and saw it signed by counsel, before another clause was called; and always made it a condition in the rule, “that it should be set down to be argued within the first four days of the term.

Lord Mansfield also altered the widespread practice of reserving judgments. Soon after he took his place as Chief Justice he neither permitted a second argument nor reserved judgment unless special circumstances convinced him that such a course was desirable.[57] It is thus apparent that Lord Mansfield’s decision to reserve the judgment in Luke v Lyde was exceptional. Contrary to other cases, Lord Mansfield is not explicit as to his reasons for reserving judgment.[58] However one can assume that his Lordship wished to have the time to become learned in the vast sources of the customs of the sea.

VII. The Rule in Luke v Lyde

How then, did Lord Mansfield conceive that the principle he laid down in Luke v Lyde would be used in future cases? Although Lord Mansfield saw the law as being derived from natural principles that underlie cases, it might be that some principles, or at least some expression of them, would become like rules by being established in future case law. Thus, while his Lordship did not treat precedent as conceptually binding per se, he did have a conception of the need to abide by former precedents in the interests of certainty in the law. As he said in a 1782 case, Bishop of London v Ffytche:[59]

The object of the law is certainty, especially such parts of the law as are of extensive and general influence, which affect the property of many individuals, and which inflict pecuniary penalties; which create personal disabilities; and which work forfeitures of temporal rights. It was of vast consequence stare decisis; no man could perceive of a contrary practice.

It is apparent in Luke v Lyde[60], Lord Mansfield envisaged that the ‘principle’ he laid down would become a ‘rule’ in the future, by its repetition in subsequent cases. Indeed the case was originally heard in the assizes in Devonshire,[61] but brought later to London, because his Lordship was[62]:

[D]esirous to have a case made of it, in order to settle the point more deliberately, solemnly, notoriously; as it was so extensive in nature...He always leaned, (even where he had himself no doubt), to make cases for the opinion of the Court; not only for the greater satisfaction of the parties in the particular cause, but to prevent other disputes, by making the rules of the law and the ground on which they are established certain and notorious.... (Additional emphasis)

But how can this view be reconciled with the natural lawyer’s notion that judgments or precedents were merely evidence of the law and not the law itself? When Lord Mansfield uses the word ‘precedent’ he did not mean to say a necessarily positively binding judgment. Rather, he is referring to a judgment or case that is an illustration of the law. Accordingly, a whole line of precedents may be overruled, as incorrect illustrations of the right principle or law. The willingness of Lord Mansfield to depart from established precedent under such circumstances is evident from the following passage from the case of Robinson v Bland,[63] heard just one year after Luke v Lyde, in which his Lordship stated:

The general practice of associates, in taking damages in these cases is (I am informed) to stop the commencement of an action, and to allow interest no further down. But this practice, however general, is not founded in law, but in mistake and misapprehension, and this will appear very plain, whether it is considered upon the foot of natural justice, or law.

Lord Mansfield’s contribution to the development of commercial law principles was suitably described by Buller J in his 1787 judgment Lickbarrow v Mason.[64] After pointing out that, during the last thirty years, commercial law had “taken a very different turn” he said:[65]

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...not only to rule the particular case then under consideration, but to serve as a guide for the future.

VIII. CONCLUSION

This article has attempted to show that the significance of Luke v Lyde lies not in the precise ratio of the case, but instead in the more subtle aspects, the allusions and references. Most fundamentally, the case is instructive of an approach to case law reasoning that has been neglected in recent years. Lord Mansfield was ready - more ready than any of the other great lawyers of his day – to insist that cases must be interpreted and decided in the light of principles. The principles were to be ‘found’ in a variety of sources – ancient and contemporary and applied in accordance with the substantive justice of the case. It was this approach to case law reasoning that enabled Lord Mansfield to develop English common law and bring it into harmony with the conditions of the modern world. Indeed, the fact that English law was able to adapt its principles to the needs of a new age, and yet remained a stable and precise set of principles, can be attributed to the work of Lord Mansfield. For this reason, it is no overstatement to describe Lord Mansfield as the “founder of commercial law”.[66]


[∗] BA/LLB(Hons). The author would like to thank Dr David Williams of the University of Auckland Faulty of Law for his helpful suggestions and support.

[1] [1759] EngR 18; (1759) 2 Burr 882; 97 ER 614 (Luke).

[2] See Metcalf v Britannia Ironworks Company [1976 – 77] 2 QBD 423.

[3] P Marshall, The Eighteenth Century (1988) 53. For instance, between 1697 and 1815 commodity exports increased much more rapidly than the growth of the population and faster than the growth of the national product as a whole.

[4] Quoted in CHS Fifoot Lord Mansfield (Clarendon, Oxford, 1936), 4. (Fifoot).

[5] Ibid 17.

[6] W Holdsworth, Sources and Literature of English Law (1952) 5.

[7] Josiah Child A Discourse About Trade (Printed by A Sowle 1689, Early English books On-line, Electronic Reproduction Ann Arbour, Michigan 1999)

[8] John Marius Advice Concerning Bills of Exchange (Early English books On-line, Electronic Reproduction Ann Arbour, Michigan 1999)

[9] John D Cary An Essay on the State of England in Relation to its Trade (Printed by W Bonny 1695, Early English books On-line, Electronic Reproduction Ann Arbour, Michigan 1999).

[10] Fifoot, supra note 4, 7.

[11] For a detailed discussion see Part IV of this paper.

[12] Fifoot, supra note 4, 9.

[13] AWD Simpson (ed), Biographical Dictionary of the Common Law (Butterworths, London, 1984).

[14] William, later Earl of Chatham.

[15] Holdsworth, supra note 6, 249.

[16] W Holdswoth “Lord Mansfield” (1937) 53 LQR 221.

[17] Fifoot, supra note 4, 9.

[18] [1756] EngR 122; (1756) 1 Burr 2; 97 ER 614.

[19] Lilly’s Practice, Reg. Ii 154.

[20] The Earl of Birkenhead Fourteen English Judges (Cassell, London, 1926).

[21] See for example Lord Mansfield’s statement “the special jury, among whom there were many knowing and considerable merchants, found the defendant’s rule of estimation to be right and gave their verdict for him.” Lewis v Rucker [1761] EngR 46; (1761) 2 Burr 1167; 97 ER 769.

[22] Indeed, the importance of the case is suggested by the fact that Lord Mansfield’s decision was reserved until the summer and then brought to London to be heard.

[23] Robert William Wong Lord Mansfield’s Case Law Theory (Dissertation LLB(Hons), University of Auckland, 1986).

[24] Fifoot, supra note 4, 89.

[25] See for example Bishop of London v Ffytche [1781] EngR 11; (1783) 1 East 487; 102 ER 188 (Bishop). For a more detailed discussion on this case see Carleton Kemp Allen, Law in the Making (7th Ed Claredon, Oxford, 1964).

[26] Jones v Randall (1774) 1 Cowp 37,39; [1774] EngR 24; 98 ER 954, 955.

[27] Luke, supra note 1, 616.

[28] Ibid, 619.

[29] Ibid.

[30] See supra note 1, 621.

[31] Ibid, 621.

[32] Luke, supra note 1 621.

[33] Ibid, 618.

[34] Fifoot, supra note 4, 87.

[35] Thomas Edward Scrutton The influence of Roman Law of the Law of England, IB Rothman, Littleton, 1985). (Scrutton).

[36] The Latin translation of The Consolato del Mere is “Aci commencen les bones constumes de la mar”. See John Henry Wigmore Panorama of the World’s Legal Systems (WW Gaunt, Holmes Beach, 1992) (Wigmore).

[37] Luke, supra note 1, 617.

[38] Ibid 619.

[39] Ibid.

[40] Ibid 620.

[41] Wigmore, supra note 35, 885.

[42] Ibid 890.

[43] Ibid 891.

[44] Luke, supra note 1, 619.

[45] Ibid.

[46] Wigmore, supra note 36, 893.

[47] The League was later to become one of Europe’s great powers. The League had colonies throughout Europe and according to Wigmore its rules in its field were more potent than those of a Pope or Emperor, as it could ruin a commercial town by its boycott. See Wigmore, supra note 36, 894.

[48] Ibid 892.

[49] Ibid 893.

[50] Luke, above n 1, 619.

[51] Wigmore, above n 36, 892.

[52] Luke, above n 1, 619.

[53] Ibid.

[54] Scrutton, above n 35, 180.

[55] Fifoot, supra note 4, 53.

[56] Luke, supra note 1, 618.

[57] Fifoot, supra note 4, 36.

[58] For an example see Lord Mansfield’s express statement “I wish this case to be spoken to by civilians. We can have no light from our own law. I have been looking t a French Commentary on Colbert’s Ordonnance...” Anthon v Fisher (1783) 3 Douglas 166, 167; 99 ER 594.

[59] Bishop, supra note 25.

[60] See also Corbett v Poelnitz [1785] EngR 8; (1785) 1 TR 5; 99 ER 940 where Lord Mansfield said “the great principle which the court has laid down is that where a woman has a separate estate, and acts and receives credit as a deme sole, she shall be liable as such” and Rust v Cooper [1777] EngR 47; (1777) 2 Cowp 629; 98 ER 1277 where his Lordship said ‘the general principle applicable to the present case is this: that a fraudulent contrivance with a view to defeat the bankruptcy laws, is void and annuls the act.”

[61] The written judgment begins “A special case from the last Devonshire Assizes; reserved by Ld. Mansfield, who went that circuit, last summer. Luke, supra note 1, 619.

[62] Ibid 618.

[63] Robinson v Bland (1760) 3 Douglas, 166.

[64] Lickbarrow v Mason (1787) 2 TR 63, 73; [1793] EngR 1503; 100 ER 35.

[65] Ibid, 74.

[66] Fifoot, supra note 4, 117.


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