Gerard Malynes, Consuetudo, vel, Lex Mercatoria; or, The Ancient Law-Merchant…London, 1686

First published in 1622, this is usually described as the first English book on commercial law. However, Professor Rogers explains that Malynes’ primary focus was monetary policy and the influence of foreign trade on England. Works like this one contributed to the long-held idea, disputed by Professor Rogers, that English commercial law came out of a separate body of customary law from the mercantile courts called the Law Merchant, or Lex Mercatoria. He demonstrates that English commercial law, particularly the law of bills of exchange, actually was developed by the English common law courts.  

Purchased in honor of James S. Rogers, who donated the 1981 reprint.

Henry Clift, A New Book of Declarations, Pleadings, Verdicts, Judgments, and Judicial Writs...London, 1719.

By examining pleadings in form books like Clift’s, Professor Rogers demonstrated that 1) common law courts always dealt with commercial law cases, despite assumptions to the contrary; and 2) it was not until well into the 17th century that the execution of a bill of exchange created a legal obligation in itself. Before that, the bill (an unconditional order for a third party to pay--think of today’s bank checks) was tangential to the exchange between the purchaser and seller of goods. 

John Bayley, A Short Treatise on the Law of Bills of Exchange, Cash Bills, and Promissory Notes. Dublin, 1789.

Professor Rogers explains that “the modern tradition of bills and notes treatises begins with the generation of legal writers who flourished just after the retirement of Lord Mansfield as Chief Justice of the King’s Bench in 1788.” Mansfield looked to mercantile practices to develop a sensible body of English commercial law. Four important writers who came in his wake were John Bayley, Stewart Kyd, John Byles, and Joseph Chitty. This work by Bayley was the first in this modern tradition.

Joseph Chitty [Jr.], A Practical Treatise on Bills of Exchange, Promissory Notes, and Bankers' Checks...London, 1834.

Publishing law books became a family business for the Chitty family, beginning with Joseph Chitty (1775-1841) and his Treatise on the Law of Bills (London, 1799). In the work featured here, his son, Joseph Chitty Jr., gathered and reprinted significant decisions involving bills and notes from the early 17th century until 1833. This source gave Professor Rogers a handy way to read relevant cases and to learn what issues involving bills were actually being heard by the common law courts.

William Forbes, A Methodical Treatise Concerning Bills of Exchange. Edinburgh, 1718.

Scotland’s hybrid legal system (incorporating both common law and civilian or Roman law) made commercial law a challenge for writers like Forbes. Professor Rogers says Forbes clearly “found the continental literature to be of little use in his effort to create a modern but systematic body of law for bills of exchange.” Continental law had developed in a completely different cultural setting. For example, on the continent, there was a strong focus on preventing usury (the lending of money at unreasonably high interest rates), which was not a major concern in Britain.

Charles Molloy, De Jure Maritimo et Navali or, A Treatise of Affairs Maritime and Commerce. London, 1690.

Rules governing disputes arising during the course of maritime trade formed an important part of early commercial law. After a battle with the Admiralty Court, which applied principles of civil law, the common law courts ultimately won jurisdiction over maritime cases, but the continental civilian tradition remained present. English common law courts often referred to Molloy’s work, as well as continental treatises on the topic. Professor Rogers’s copy contains a frontispiece with two symbolic engravings, one in peacetime and the other in a time of international turmoil.

Joseph Story, Commentaries on the Law of Bills of Exchange….Boston, 1843.

Story served on the U.S. Supreme Court from 1812 until his death in 1845. While on the court, the Marblehead native also served as Dane Professor of Law at Harvard Law School. He wrote nine “commentaries” on various legal topics, including commercial law, which he assigned as textbooks in his classes. In this work on bills, Story cited Bayley, Chitty, and Kyd, but also noted that America has “constructed her own system of Commercial Jurisprudence, and . . . added to the common stock some valuable illustrations and some solid doctrines.”

James Platt, Money. London, 1881.

“Everyman” books provided condensed information in a smaller format than lengthy treatises. Industrial printing innovations of the later nineteenth century allowed for low-cost cloth volumes with decorative details. This handy book has gilt lettering framed by black lines and small floral points on brown cloth binding.

The Clerk's Assistant, in Two Parts. Poughkeepsie, 1805. 

This “everyman” book is thought to have been written by publisher and printer Paraclete Potter. Potter owned a bookstore that was known to be a gathering place for many influential lawyers and politicians. The title page of this form book includes multiple fonts and dramatic spacing to emphasize the accessibility of contents.

John Cowell, A Law Dictionary, or, the Interpreter of Words and Terms. London, 1708.

King James I ordered the first edition of this book to be burned in 1610,  declaring Cowell’s text “derogatory to the supreme Power of this Crowne,” and “in other Cases mistaking the true State of the Parliament.” Cowell was also arrested at the urging of Parliament and Chief Justice Edward Coke, with whom Cowell had a rivalry. This later edition includes a history of the book’s suppression and the King’s original proclamation.