354 HISTORY OF COMMON LAW 



(apart from two or three scattered essays) has yet to be done, that 

 is, for the story before the 1700's. The whole scene shifts across the 

 channel. Even there the curtain is but half raised. Brunner has 

 illuminated part of the history of commercial paper. Goldschmidt's 

 great history, cut short by his untimely death, did not get much 

 beyond the Mediterranean history down to the 1400's. The Hansa 

 and Flemish development seems not to be yet fully explored. The 

 three centuries in England before Lord Holt (1400-1690), when all 

 the Continental mercantile methods were being learned by English 

 traders, form undoubtedly the most fascinating and obscure part of 

 the untold story. To illustrate its possibilities: In 1609 a statute 

 of James I forbade the use of merchants' account-books in evidence, 

 except as between themselves, after one year and for items of over 

 forty shillings. This statute does not explain itself. Perhaps it looks 

 like a blow at the Dutch and Hansa merchants, who were intruding 

 alien customs in London. Yet Italian history shows numerous 

 identical statutes during the generation just preceding and following. 

 Was this part of a general movement? Was there a borrowing? The 

 largest sort of a survey is needed for the historian in this field, and 

 his search must range from Venice to Wisby and Oleron, as well as 

 from the court of Pie Powder to Lord Holt's dealings with promissory 

 notes. 



(B) The internal history of the law (so far as it has not been noticed 

 in what was above said) may be likened in its present state to an 

 unfinished house, whose foundations have been completely laid and 

 whose frame and beams are erected. The roof is yet lacking and all 

 the filling in of the walls and plaster and flooring. Its plan and shape 

 and divisions can be plainly understood; but it cannot yet be in- 

 habited, and many kinds of workmen must yet labor upon it. These 

 foundations are those of Professor Maitland and Sir Frederick Pollock 

 in their history. This frame and these cross-beams are chiefly the 

 essays of Professor Ames. It may be said that down to the 1300's 

 practically the whole history of our law is established; and that from 

 the 1300's to the 1800's the history of the main doctrines of private 

 law which have remained obscure or misunderstood (excepting com- 

 mercial law) have been supplied. But the painstaking completion of 

 scores of important details during these five hundred years remains 

 to be done. It would be impossible here to enumerate the precise 

 parts. Merely as examples of some of those that have been supplied 

 may be named Mr. Scrutton's history of copyright; Professor Beale's 

 history of a bailee's liability; Mr. Veeder's history of libel and slander; 

 and Professor Gray's and Mr. Digby's work in real property. As 

 examples of those that have not been supplied may be taken the 

 history of mortgage law, x the history of personal suretyship, the history 

 1 This gap is now being filled by Mr. Hazeltine's essays. 



