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THE CASE OF MIXT MONIES: CONFIRMING NOMINALISM IN THE COMMON LAW OF MONETARY OBLIGATIONS

Published online by Cambridge University Press:  15 March 2011

D. Fox
D. Fox
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Faculty of Law, University of Cambridge.
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The Cambridge Law Journal , Volume 70 , Issue 1 , March 2011 , pp. 144 - 174
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 (1605) Davis 18; an English translation of the case appears in (1605) 2 Howells State Trials 114.

2 Edmonson v. Copland [1911] 2 Ch. 301.

3 F.A. Mann, The Legal Aspect of Money, 1st ed., (London 1938), pp. 60–61 (cited as Mann (1st ed.)).

4 This is not to say that the law has no regard to valorist approaches to monetary obligations. Valorism is relevant when a debt has to be transferred or treated as security, as in a debt factoring arrangement. The exchange value of the debt is a function of the debtor's creditworthiness and the delay till the debt falls due for payment. These may cause the nominal value of the debt to be discounted.

5 Mann, (1st ed.), p. 63. For a somewhat less forceful statement of the principle in the current edition, see C. Proctor, Mann on the Legal Aspect of Money, 6th ed. (Oxford 2005), 9.03, 9.09 (cited as Mann (6th ed.)).

6 The classical expositions are W.S. Jevons, Money and the Mechanism of Exchange (London 1875), 1–4; Menger, P.K. , “On the Origins of Money” (1892) 2 Economic Journal 239CrossRefGoogle Scholar.

7 L. von Mises, The Theory of Money and Credit, translated by H.E. Batson (London 1953), pp. 69–74.

8 Mann (1st ed.), 54, citing K. Helfferich, Money, trans. L. Infield (London 1927), p. 309, describes the legal conception of money as a “medium of final compulsory liquidation or as a medium of final tender”.

9 Mann (1st ed.), pp. 68–69.

10 H.S. Pawlisch, Sir John Davies and the Conquest of Ireland (Cambridge 1985) (Pawlisch).

11 W. Taeuber, Molinaeus' Geldschuldlehre (Jena 1928); H.A. Miskimin, Cash, Credit and Crisis in Europe, 1300–1600 (London 1989), ch. 9; T.J. Sargent and F.R. Velde, The Big Problem of Small Change (Princeton 2002), ch. 6; W. Ernst, “The Glossators' Monetary Law”, ch. 9 in J.W. Cairns and P.J. du Plessis, The Creation of the Ius Commune (Edinburgh 2010).

12 (1605) Davis 18, 25. See further text at n. 89infra.

13 For the historical and numismatic context, see Simon (1810), pp. 37–43; C.E. Challis, The Tudor Coinage (Manchester 1978), 268–274 (cited as Challis); and Pawlisch, ch. 8.

14 Challis, p. 268.

15 Irish Proclamation 20, Elizabeth I (20 May 1601).

16 The supply of commodities dried up since some merchants preferred not to part with their goods in return for the new coinage. Others accepted the new coins but at a heavily discounted rate. They would then profit by exchanging them for English sterling at the official rate: see Irish Proclamation 22, Elizabeth I (24 January 1602).

17 Prices charged in the new coinage were anything from 25–100% higher than those in the old coinage. See the contemporary accounts preserved in Calendar of State Papers relating to Ireland, Henry VIII, Edward VI, Mary and Elizabeth (1601–1603): Exchange Master at Cork to Exchange Master in London (14 January 1602), 280–282; President and Council of Munster to Lord Buckhurst (10 October 1602), 501.

18 (1605) Davis 18, 19.

19 Ibid., pp. 20–21.

20 Ibid., pp. 24–25.

21 Ibid., p. 28.

22 See, e.g., English Proclamation 25, Henry VII (15 April 1491); English Proclamation 38, Henry VII (5 September 1497); English Proclamation 95, Henry VIII (24 September 1522); English Proclamation 180, Henry VIII (27 July 1538); and English Proclamation 379, Edward VI (16 August 1551) where the further penalty was added that coin accepted other than at the proclaimed legal tender rate would be forfeit to the Crown. There is reason to think that in England coinage offences might have been tried in local mayoral courts or in the Court of Exchequer: R.W. Heinze, The Proclamations of the Tudor Kings (Cambridge 1976), pp. 262–279.

23 Pawlisch.

24 As an indication of the volume of early modern monetary law, it will be seen that the index to Hughes and Larkin (Tudor), vol. 3 contains more entries for matters relating to coinage than almost any other topic regulated by proclamation. The main statutes controlling the integrity of the issued coinage and prohibiting its corruption or export were: Statute of Money, 20 Edward I, stat. 3, 4 (1291–92); Statute of False Money, 27 Edward I, stat. 3 (1299); Statute of Money, 9 Edward III, stat. 2 (1335); 17 Edward III, stat. 3 (1343); 5 Richard II, stat. 1 cap. 2 (1381); stat. 17 Richard II, cap. 1 (1393–4); stat. 2 Henry VI, cap. 6 (1423); stat. 19 Henry VII, cap. 5 (1503–4). For their use in regulating commodity exports and international bullion flows, see J.H. Monroe, “Bullionism and the Bill of Exchange” ch. 7 in Centre for Medieval and Renaissance Studies, The Dawn of Modern Banking (New Haven and London 1979).

25 See text at n. 54infra.

26 New Palgrave Dictionary of Economics Online, “Commodity Money”.

27 On the historical origins of paper money in England, see W.R. Bisschop, The Rise of the London Money Market (London 1910), 38–68; E.T. Powell, The Evolution of the Money Market 1385–1915 (London 1966), 57–68; Horsefield, J.K. , “The Beginnings of Paper Money in England” (1977) 6 Journal of Economic History 117Google Scholar; and R.D. Richards, The Early History of Banking in England (London 1958), ch. 2.

28 Challis, pp. 205–211.

29 See English Proclamations 128, James I (19 May 1613); 137, James I (21 June 1614); 155, James I (26 October 1615); 164, James I (17 March 1617). Token issues became widespread during the Commonwealth after the execution of Charles I removed the Sovereign's monopoly on coin issue: M. Dickinson, Seventeenth Century Tokens of the British Isles and their Values (London 1986), 4. The King's prohibition on private tokens was duly renewed after the Restoration: e.g., English Proclamation (16 August 1672), 24 Ch. II Rot. Pat. p. 4 n.2d., (printed copy at NA SP45/12); English Proclamation (5 December 1674) 26 Ch. II Rot. Pat. p. 9 n.4d., (printed copy at NA SP45/12).

30 See G. Davies, A History of Money from Ancient Times to the Present Day, 6th ed. (Cardiff 2002), 366–75; and A. Feavearyear, The Pound Sterling, (Oxford 1931), ch. 12 (cited as Feavearyear). The suspension of convertibility was made permanent by the Gold Standard Act 1925, s. 1(1).

31 See English Proclamation 419, Philip and Mary (26 December 1554), and for more examples, Challis, pp. 214–218.

32 Spink and Son, Coins of England and the United Kingdom, 41st ed., (London 2006), p. 98

33 For the full diversity of foreign coin circulating in England, see Challis, pp. 214–218.

34 See English Proclamation 412, Mary I (4 May 1554).

35 See English Proclamation 408, Mary I (8 March 1554). The French coins named were only a small sample of the real monies actually circulating in France. For a fuller list, see Szlechter, E. , “La monnaie in France au XVIe siècle; droit public – droit privé” (1951) 29 Revue Historique de Droit Français et Étranger (4th) 500Google Scholar, 503.

36 See Proclamations 3, James I (8 April 1603); 47, James I (16 November 1604).

37 Co. Lit., [207 b]. E.g., Wade's Case (1601) 5 Co. Rep. 114a, 114a. Other expressions to the same effect were “lawful money of England”: Hawes v. Davye (1565) noted in (1993) 109 S.S. 119; or “good and lawful money of the King of England”: Dynis v. Rerysby (1430) noted in (1993) 109 S.S. 118.

38 See, e.g., English Proclamation 419, Philip and Mary (26 December 1554) for the standard wording: “All such pieces of coins of monies of gold and silver, the King's and Queen's majesties' will and pleasure is, shall be current within this their highness' realm of England and the dominions of the same, after such value and in such manner and form as above is declared”.

39 J.M. Keynes, Treatise on Money (London 1930), vol. 1, 3–4; L. Einaudi, “The Theory of Imaginary Money from Charlemagne to the French Revolution”, ch. 14 in F.C. Lane and J.C. Riemersa (eds), Enterprise and Secular Change (London 1953).

40 J.M. Keynes, Treatise on Money (London 1930), vol. 1, 3–4.

41 Prices, accounts and monetary fines were sometimes denominated in an alternative unit of account, the mark (see, e.g., English Proclamation 114, Henry VIII (28 November 1526)). A mark was 160 pennies, equivalent to 13 s., 4 d. But use of the mark as a unit of reckoning gradually declined. Gold noble coins rated at a half-mark (or 6 s., 8d.) were still being issued in the reign of Henry VIII (see English Proclamation 112, Henry VIII (5 November 1526) for the new issue of the George Noble). Thereafter, it became more common for coins to be issued in units corresponding to convenient divisions of pounds, shillings and pence. Thus, Elizabeth I's new issue of 1558 comprised gold coins rated at 30 s., 20 s., 10 s., 5 s. and 2 s., 6 d: see the mint commission at 1 Elizabeth I Rot. Pat. m. 19d. (31 December 1558).

42 See W. Taeuber, Geld und Kredit im Mittelalter, 2nd ed., (Frankfurt 1968), pp. 249–267; and P. Spufford, Money and its Use in Medieval Europe (Cambridge 1988), pp. 33–34.

43 See text at note 35supra.

44 For illustrations, see Spink, note 32supra, pp. 232–235.

45 For the mint commission, see 5 Henry VIII Rot. Pat. m. 6(30) d. (28 October 1489).

46 English Proclamations 111, 112, Henry VIII (22 August 1526, 5 November 1526).

47 See Irish Proclamation 26, James I (11 October 1603); and Irish Proclamation 27, James I (22 January 1604).

48 See Irish Proclamation 26, James I (11 October 1603).

49 The crying down of nominal coin values was strictly an enhancement rather than a devaluation of them. After crying down, the same nominal unit of value corresponded to a higher silver content.

50 See English Proclamation 412, Mary I (4 May 1554).

51 See English Proclamation 408, Mary I (8 March 1554).

52 Wade's Case (1601) 5 Co. Rep 114a is reported example of the problems encountered when is a debtor tendered foreign coin with an English money of account value in discharge of a debt.

53 Feavearyear, p. 2.

54 See J.D. Gould, The Great Debasement (Oxford 1970), pp. 10–13; and generally A. Redish, Bimetallism: an Economic and Historical Analysis (Cambridge 2000), pp. 27–40.

55 On debasement, see generally P. Spufford, Money and its Use in Medieval Europe (Cambridge 1988), ch. 13.

56 The net profits of the English and Irish mints between 1542 and 1551 may have been as high as £1,285,000: Challis, C.E. , “The Debasement of the Coinage, 1542–1551” (1967) 20 Economic History Review (N.S.) 441CrossRefGoogle Scholar.

57 9 Edward III, stat. 2, cap. 3 (1335); 17 Richard II, cap. 1 (1393–4); and stat. 17 Edward IV, cap. 1 (1477–8).

58 Principally stat. 2 Henry VI, cap. 6 (1423) and stat. 17 Edward IV, cap. 1 (1477–8). The latter was periodically revived and extended during the Tudor era.

59 J. Price, “A discussion on the Coinage”, (1553) reproduced in C.H. Williams, English Historical Documents 1485–1558 London 1967), 1016.

60 See, e.g., Document 7, “Letter from Sir John Mason to Cecil”, 4 December 1550; Document 9, “Rise in the Price of Cloth Goods”, 10 July 1551; Document 10, “Memorandum on the Reasons Moving Queen Elizabeth to Reform the Coinage”, State Papers Domestic, Elizabeth I, vol. XI, No. 6, in Tawney, R.H. and Power, E., Tudor Economic Documents, vol. 2 (London 1924), pp. 189–195Google Scholar.

61 J. Locke, “Some Considerations of the Consequences of the Lowering of Interest and Raising the Value of Money” (1692), [4]–[5], [9], reproduced in P.H. Kelly (ed.), Locke on Money (Oxford 1991).

62 For brief accounts, R. Ruding, Annals of the Coinage of Britain and its Dependencies, vol. 1 (London 1819), pp. 3–8; S.P. Breckinridge, Legal Tender: a Study in English and American Monetary History (Chicago 1903), chs 2-4.

63 Reproduced in a compilation of essays in the library of Gaspar Antonius Thesaurus on the variation of monetary standards in De Monetarum Augmento Variatione et Diminutione Tractatus Varii (1609), 386 et seq.

64 Nussbaum, A. , “The Idea of a World Money” (1949) 4 Political Science Quarterly 420, 420–421CrossRefGoogle Scholar.

65 (1605) Davis 18, 19.

66 Aristotle, Nichomachean Ethics, trans. D. Ross (Oxford 1988), V.5.1133a7-1133a11, cited later in the Case (1605) Davis 18, 25.

67 The distinction is more clearly articulated in the modern economic definitions of money: J.M. Keynes, A Treatise on Money (London 1930), ch. 1; Eder, P.J. , “Legal Theories of Money” (1934) 20 Cornell L.Q. 52; A. Nussbaum, Money in the Law (Chicago 1939), pp. 5–8Google Scholar; and L. von Mises, The Theory of Money and Credit, translated by H.E. Batson (London 1953), chs 1–2.

68 See J.T. Noonan, The Scholastic Analysis of Usury (Cambridge Mass. 1957), pp. 51–53.

69 An idea developed by A. Nussbaum, Money in the Law (Chicago 1939), pp. 5–8.

70 A phenomenon described in Taeuber, note 42supra, p. 259.

71 (1605) Davis 18, 19.

72 Noonan, note 68supra, ch. 4.

73 See text at notes 53 ff. above.

74 Aristotle, Nicomachean Ethics, V.5.1133.b14.

75 Jean Bodin articulated the idea that the purchasing power of money varied in inverse proportion to the quantity of it in supply. He explicitly attributed the price inflation of the 16th century to the influx of silver to Europe from South America: see R. Knolle (trans.), J. Bodin, The Six Bookes of the Commonweale (London 1606), Book VI, 666–667. For doubts about the attribution, see J. Blanc, “Beyond the Quantity Theory: a Reappraisal of Jean Bodin's Monetary Ideas”, ch. 9 in A. Giacomin and M.C. Marcuzzo, Money and Markets: a Doctrinal Approach (London and New York 2007). For Bodin's and Du Moulin's explanations of money quantity and price inflation in the context of 16th century economic theory, see P. Vilar (trans. J White), A History of Gold and Money (London 1976), chs. 17-19.

76 For 16th century theory and practice in exchange rate fluctuations, see R. de Roover, Gresham on Foreign Exchange (Cambridge Mass. 1949), pp. 128–158.

77 A Redish, Bimetallism (Cambridge 2000), 27–34.

78 Taeuber, note 42supra, pp. 264–267.

79 See G.F. Knapp, The State Theory of Money, translated by H.M. Lucas and J. Bonar (London 1924), ch. 1, and A.M. Innes, “What is Money?” and “The Credit Theory of Money” in L.R. Wray (ed.), Credit and State Theories of Money (Cheltenham 2004), chs 2 and 3.

80 Knapp, op. cit, pp. 27, 33.

81 (1605) Davis 18, 18.

82 See Feavearyear, p. 8.

83 (1605) Davis 18, 23–25. Other interpretations are that the word comes from the word stoerra, a star, since some of the early coins bore a small star, or that it is a corruption of staer, a starling, since some of Edward the Confessor's pennies were stamped with the likeness of four birds: Feavearyear, p. 8.

84 (1605) Davis 18, 24.

85 (1605) Davis 18, 22, 25. This usage continues to this day but now with two layers of fiction. The currency of the United Kingdom is still called sterling although it is not convertible to coins minted from any precious metal. Even when it still was, the foundation of the sterling currency was its convertibility to gold rather than silver coin. Great Britain formally converted from a silver to a gold standard in 1774. The silver coins that still circulated were given a maximum legal tender value of 25 l. whereas gold coins were legal tender for any amount: stat. 14 George III, cap. 42, s. 2 (1774). Hence gold coins became the primary currency units. The silver coins were essentially fiduciary media convertible to gold coins.

86 (1605) Davis 18, 24, citing the usage in Pong v. Lindsay (1553) 1 Dyer 82a, 82b that “two pollards” were current in England at a rate equal to “one sterling”. A pollard was the name generally given to a foreign-issued imitation penny (T. Snelling, Miscellaneous Views of the Coins Struck by the English Princes in France, Counterfeit Sterlings etc. (London 1769), p. 23), but in this case it probably refers to one of Henry VIII's debased 1 d. coins after Edward VI devalued it to ½ d. in 1551: English Proclamation 379, Edward VI (1551).

87 Adelaide Electric Supply Company Ltd v. Prudential Assurance Company Ltd [1934] A.C. 122 is a modern example arising from the separation of the Australian monetary system from that of Great Britain during the suspension of the international gold standard.

88 Stat. 17 Edward IV, cap. 1 (1477–8); stat. 19 Henry VII, cap. 5 (1503–4); English Proclamation 197, Henry VIII (16 November 1540).

89 (1605) Davis 18, 25.

90 Irish Proclamation 28, James I (11 November 1606).

91 Stat. 6 George IV, cap. 79 (1825).

92 (1605) Davis 18, 25–26.

93 Ibid., 19.

94 Ibid., 19–20.

95 See Szlechter, E. , “La monnaie in France au XVIe siècle; droit public – droit privé” (1951) 29 Revue Historique de Droit Français; et Étranger (4th) 500Google Scholar, 502.

96 Stat. 19 Henry VII, cap. 5 (1503–4).

97 Dixon v. Willoughes (1696) 2 Salk. 446; sub nom Dixon v. Willows (1696) 3 Salk. 239. The order to the mint is held at NA MINT 1/4, fol 57.

98 See text at notes 15–16 supra.

99 (1605) Davis 18, 21. See further text at note 114infra.

100 See text at note 14supra.

101 (1605) Davis 18, 28.

102 Without the official assignation of monetary status to certain kinds of thing, the distinction between barter and sale is difficult to draw. This point troubled the Roman jurists: see D.18.1.1 (Paulus) cited in the Case (1605) Davis 18, 19, and generally Nicolet, C. , “Pline, Paul et la Théorie de la Monnaie” (1984) 62 Athenaeum (N.S.) 105. Goods might be exchanged by barter though their relative values were expressed in monetary units of account: see P. Grierson, The Origins of Money (London 1977), pp. 16–17Google Scholar.

103 See generally T.J. Sargent and F.R. Velde, The Big Problem of Small Change (Princeton 2002), ch. 6.

104 See Taeuber, note 42supra, pp. 277–280; W. Ernst, note 11supra.

105 (1605) Davis 18, 24.

106 See J.-L. Thireau, Charles Du Moulin (Geneva 1980).

107 (1605) Davis 18, 24–25, referring to Molinaeus, Tractatus, 694.

108 D.12.2.2.pr. (Paulus); D.12.2.3 (Pomponius).

109 Molineaus, Tractatus, 696. For a close analysis of his argument, see Taeuber, note 11supra, ch. 2.

110 Molinaeus, Tractatus, 969 marginal note.

111 Ibid., 694.

112 (1605) Davis 18, 24–25 citing Molinaeus, Tractatus, 694.

113 Molinaeus, Tractatus, 696 citing Ar. Eth., V.5.1133a7–1133a11, quoted in full at text at note 66supra.

114 See English Proclamations 372, 379, Edward VI (30 April, 16 August 1551).

115 (1554) 1 Dyer 82a.

116 (1554) 1 Dyer 82b.

117 English Proclamation 88, Henry VIII (25 May 1522). For identical or similar wording, see also English Proclamations 100, Henry VIII (1 October 1524); 102, Henry VIII (6 July 1525); 103, Henry VIII (8 July 1525); 321, Edward VI (24 January 1549); 326, Edward VI (11 April 1549); 382, Edward VI (30 October 1551).

118 E.g., English Proclamation 112, Henry VIII (5 November 1526): “all other such sums of money which upon any obligation, covenant, bargain, promise, bill, grant of parliament, or otherwise, was payable to the King's highness or any other person at any time between the date of the last proclamation made of coins, which was the 22nd day of August last past, and the date of this present proclamation, shall be paid, received, and taken after such rate as the moneys and coins of gold and silver by virtue of the said last proclamation were valued and current. And semblably all such other sums of money which upon like respects or otherwise shall be payable to the King's highness or to any other person from the date of this present proclamation forwards, shall be paid, received, and taken after such rate as the moneys and coins of gold and silver by this said proclamation be valued current and limited”.

119 English Proclamation 111, Henry VIII (22 August 1526) altering inter alia the money of account valuation of the French crown of the sun to 4 s., 6 d., from its former valuation of 4 s., 4 d. established by English Proclamation 103, Henry VIII (8 July 1525).

120 Irish Proclamation 20, Elizabeth I (20 May 1601).

121 English Proclamation 112, Henry VIII (5 November 1526).

122 See Taeuber, note 42supra, pp. 264–267; and D. Fox, “Legal Tender and Early Modern Monetary Management” (forthcoming).

123 E.g., English Proclamations 111, Henry VIII (22 August 1526); 112, Henry VIII (5 November 1526); 228, Henry VIII (16 May 1544); 47, James I (16 November 1604); 122, James I (23 November 1611); 13 Charles II Rot. Pat. p. 17, n.13d. (26 August 1661), printed copy at NA SP 45/11.

124 See especially W. Ernst, note 11supra.