Reviews

Publication Date01 Nov 1976
DOIhttp://doi.org/10.1111/j.1468-2230.1976.tb01483.x
REVIEWS
LEGAL HISTORY STUDIES
1972. Edited by
DAFYDD
JENKINS.
[Cardiff:
University of Wales Press. 1975.
155
pp. (with bibliography)
€3.00
(paperback).]
A
HISTORY
OF
CONTRA^
AT
COMMON
LAW.
By
S.
J. STOLJAR.
[Australian National University Press. 1975.
221
pp. (with
index) $A9.95.]
A
HISTORY
OF
THE
COMMON
LAW
OF
CONTRACT. By
A.
W.
B.
SIMPSON.
[Oxford University Press. 1975.
646
pp. (with index)
$1275.1
ONE
day an enterprising cliometrician will be attracted to the enormous mass
of data, much of it still unexplored, relating to the development of the com-
mon law.
A
good deal has gone west in both senses,
so
the legal historian
must be an imaginative globe-trotter in addition to possessing the more usual
antiquarian skills,
J.
H.
Baker’s contribution to the
1972
Cardiff Legal History
Confercnce, now published, with other essays, under the cditorship of the
conference organiser, DafFyd Jenkins, excudes
a
kind of enthusiastic pessimism.
Perhaps, like Fogel and Engleman, in their study of American slavery, the
cliometrician will stir up idcological controversy, but one doubts it. The new
perspectives must come first, and none of the other essays reveals one of these,
learned
as
they all are.
Professor Simpson, in
his
scholarly. and at times almost entertaining, book,
has
no
illusions as to the nature of doctrinal legal history.
It
is
‘I..
.
primarily
concerncd with the way in which people thought rather than with the way in
which they acted..
.
.”
As
Milsom and others have pointed out, the problem
with concentrating upon the operation of the Royal Courts is that the sudden
emergence there of a new conceptually precocious remedy may mean nothing
more than that some institutional shift has brought into the bcam of our
rescarchlight an old response to an old “felt need” long since worked out
in the obscurity of thc local courts.
If
Sipson’s thoughtlact dichotomy is
valid, we may simply be witnessing a, perhaps unpredicted, result of an act.
“Tunnel history” has profound drawbacks. The questions we ask in legal
history now are similar in many rcspects to those asked by Ames and Mait-
land, and their framing probably owes a great deal to Langdell: How useful
was Debt?; in what ways was it superseded by Assumpsit?; was considera-
tion a modified civilianism, a domestic descendent of the
quid
pro
quo,
or
a
mixture from the common law courts and chancery, catalysed by the use?
All
jurisdictions need to limit the actionability of the promise, but why was con-
sidcration in its Tudor form developcd once the speciality wcnt out of the
window with covcnant? Simpson answers these questions at length and with
stimulating erudition. He points to the promise-bascd liability with which
Assumpsit oustcd its competitors, and compares it with
liability..
.
based
upon
a
gcneral rule of law,” an earlier wcakling whose growth, it
is
trite to
observe, we are witnessing today. Having survived a dose of the Sir George
Jesscls, we are now learning to recognise a systcm of remedies in which, as
Pollock and Maitland observed, “contract must be taught to know its place.”
There are other questions it
is
surely pertinent to ask.
As
Simpson
and
others have suggested-though Beckerman, in Jenkins’ book, doubts it-the
Statute of Gloucester and inflation combined
to
increase the jurisdiction of
the Royal Courts. Here equitable relief against penalties in conditioned bonds
may have diminished the popularity of those, and consequently that of Debt,
though in
so
far
as
the “penalty” represented a genuine pre-estimate of
damage, such
a
bond might still be useful. Sipson says that the writ
audito
74
1

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