on the law of tort - Pollock and Salmond - disagreed over the fundamental question whether there was a single principle which could be found to unify the law of tort. This characterization of the two main areas of the English law of obligations might suggest that the degree of rationality and sophistication of areas of English private lawdepended on how much it was open to a learned influence. Nevertheless, we should hesitate before drawing such a conclusion. If we bear in mind the largely untheoretical nature of English juristic writing, and the fact that legal development was driven by courtroom decisions, we can see a different picture emerging. English judges, whether dealing with contract or tort, were not blind to larger questions of theory; yet they were not minded simply to import the theories developed by outsiders. It needs to be borne in mind that the development of the law was largely shaped by forensic argument.The arguments of counsel were crucial in developing the common law, for it was counsel who informed the judges. In making their arguments, lawyers drew occasionally on learned literature; but the citation of authority was not decisive. Let me give one example, randomly chosen, from the law of agency. The case is Grant v. Norway in 1852, where the question for the court of Common Pleas was whether the master of a ship, who had signed a bill of lading - a transferable shipping document - for goods which had never been placed on board, was to be considered the agent of the ship owner, in such a way as to make the ship owner liable. In this case, the bill of lading had been negotiated, and the plaintiffs had lent money on the security of the bill.Not having been paid the money they were due, the plaintiffs sued the defendants in tort, claiming that by reason of their misconduct, they had lost their money. They were in effect suing the defendants for the negligence or fraud of their agent. Counsel for the plaintiffs began their argument with a great deal of citation on the law relating to the power of general agents, taken from the treatises of Abbott, Story and Pothier, to establish that the owner must be liable.52 The texts showed that the master of a ship was to be regarded as the general agent of the owner, having the power (among other things) to sign bills of lading.These sources argued that while the m i cha e l lob ban 149 52 They cited Charles Abbott, ATreatise of the Law Relative to Merchant Ships and Seamen (8th ed. ByW. Shee, London, 1847), p. 167; J. Story, Commentaries on the Law of Agency (3rd ed, byW.W. Story, Boston ,1846, §116, p.133); Pothier,Obligations (Evans ed., vol. 1, p. 300).
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