"The same principle was, two years afterwards, recognized in an anonymous case (but believed to be Milton's Case, vide 1 Mod., 286), in the exchequer, reported in Hardres, 485 Mich., 20 Car. II (1668), where the plaintiff declared on the custom of England, and after verdict, Offley moved in arrest of judgment, because the 'plaintiff had declared that per con-suetudinem Angliae, etc., which he said was naught, because the custom of England is the law of England, and what the judges are bound to take notice of; and that therefore the consuetudo Angliae ought to have been omitted.'

"But the chief baron said: 'But for the plaintiff's inserting the custom of the realm into his declaration here, I hold that to be mere surplussage and redundancy, which does not vitiate the declaration.' And again he says: 'It were worth while to inquire what the course has been amongst merchants; or to direct an issue for trial of the custom among merchants in this case; for although we must in general take notice of the law of merchants; yet all their customs we cannot know but by information.' Afterwards, in declaring their opinions, the court said, 'that this course of accepting bills being a general custom amongst all traders both within and without the realm, and having everywhere that effect to make the acceptor subject to pay the contents, the court must take notice of that custom.'

"Notwithstanding these decisions, the question was again made about twenty years afterwards, in the case of Carter vs. Downish, 1 W. & M. anno 1688, 1 Shower, 127, in the exchequer, on a writ of error from the King's bench. The defendant had covenanted to pay all bills which should be drawn on him in favor of the plaintiff on account of 1,000 kentles of fish, and the breach assigned was the non-payment of a certain bill. The defendants pleaded that the plaintiff by indorsement on the bill, according to the custom of merchants, appointed the payment to Herbert Alwyn or his order, who indorsed it to Tassel, to whom the defendant paid it. To this plea there was a demurrer and joinder. One of the errors assigned was, that the defendant had not set forth a particular custom to warrant the indorsement. To which it was answered, 'that the law and custom of merchants warrant the indorsement of foreign bills of exchange, and for that all the book cases on foreign bills are a proof; and that such indorsement doth really transfer the property of the money, or contents in such bills to the indorsee, and that all this law of merchants is part of the law of the land, and the judges are obliged to take notice of that as well as of any other law.' And the following cases were cited: 1 Inst., 182, a; 2 Inst., 58, 204; F. N. B., 117, Reg. 135; 13 Edw. IV., 9;4 Rep., 76; Holland's Case; Fitz. Abr. Tit. Account, 127.

"Lord Chief Justice Pollexfen. 'As to that of the law of merchants, I think we are bound to take notice of it, as we do of that of survivorship and account, and this is as well known:'

"Sir Matthew Hale, in his history of the common law of England, first published in 1713, 3d Edit., pgs. 24, 25, speaking of the common law, as it is taken in its proper and usual acceptation, says: 'And besides these more common and ordinary matters to which the common law extends, it likewise includes the laws applicable to divers matters of very great moment, and though by reason of that application the said common law assumes diverse denominations, yet they are but branches and parts of it; like as the same ocean, though it many times receives a different name from the province, shire, island or country to which it is contiguous, yet these are but parts of the same ocean.

"'Thus the common law includes lex prerogatives, as it is applied with certain rules to that great business the King's prerogative; so it is called lex forestae, as it is applied under its special and proper rules to the business of forests; so it is called lex mercatoria, as it is applied under its proper rules, to the business of trade and commerce.'

'To these authorities will be added only that of Christian, in his note to 1 Bl. Com., 75. 'The lex mercatoria, or custom of merchants, like the lex et consuetudo parliamenti, describes only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts are as much the general laws of the land, as the laws relating to marriage or murder.'

"This chronological list of authorities tends to elucidate the manner in which the custom of merchants gained an establishment in the courts of law, as part of the common or general law of the land, and shows that it ought not to be considered as a system contrary to the common law, but as an essential constituent part of it, and that it always was of co-equal authority as far as subjects existed for it to act upon. The reason why it was not so recognized by the courts, and reduced to a regular system as soon as the laws relating to real estate, and the pleas of the crown, seems to be, that in ancient times the questions of a mercantile nature in the courts of justice bore no proportion to those relating to the former subjects. Before the time of James I., we have scarcely a mercantile case in the books, and yet long before that time the laws respecting real estate and the criminal code were nearly as well understood as they are at this day. Hence it cannot be a matter of great surprise, that the principles of commercial law which have been developed by the exigencies of modern times, should have been by some considered as exceptions from the general principles of the common law. The truth seems to be that the principles of the common law have not been changed, nor innovated upon by the introduction of those commercial principles, but that these principles have existed from the earliest times, even from the rudest state of commerce, and the only reason why we do not find them in the ancient books is that the circumstances had never occurred which rendered it necessary to draw them forth into judicial decision.

"Another reason perhaps why we see so much tardiness in the courts in admitting the principles of commercial law in practice has been the obstinacy of judicial forms of process, and the difficulty of adapting them to those principles which were not judicially established until after those forms had acquired a kind of sanctity from their long use. Much of the stability of the English jurisprudence is certainly to be attributed to the permanency of those forms, and although it is right that established forms should be respected, yet it must be acknowledged that they have in some measure obstructed that gradual amelioration of the jurisprudence of the country which the progressive improvement of the state of civil society demanded. It required the transcendent talents, and the confidence in those talents which were possessed by Lord Mansfield, to remove obstructions. When he ascended the bench he found justice fettered in the forms of law. It was his task to burst those fetters, and to transform the chains into instruments of substantial justice.

"From that time a new era commenced in the history of English jurisprudence. His sagacity discovered those intermediate terms, those minor propositions, which seemed wanting to connect the newly developed principles of commercial law with the ancient doctrines of the common law, and to adapt the accustomed forms to the great and important purposes of substantial justice, in mercantile transactions."

The law merchant, after having been at first administered in special courts, next passed under the jurisdiction of the admiralty courts,2 and finally became merged in the general body of the common

9 "During the time of the Tudors this court claimed a wide jurisdiction. In fact it drew to itself practically all cases in any way dependent upon the principles of the law merchant. It comprised all mercantile and snipping cases. All contracts made abroad, foreign bills of exchange, charter parties, insurance, average, freight questions arising out of negligent navigation, breaches of warranty of seaworthiness, as well as torts committed on the sea and matters of salvage, were all litigated in the Admiralty Court. It was in fact during the sixteenth century the great organ through which the principles of the law merchant were declared.

"But scarcely had the Admiralty Court attained to this position, when the common-law judges began to look with envious eyes at the wide and rich field which the development of commerce brought within the jurisdiction of the admiral. Accordingly, in the reign of Elizabeth, the common-law judges began war upon him. The most effective instrument was found to be the writ of prohibition, and this weapon was accordingly used with vital effect. Coke was raised to the bench in 1606 and took the lead in the contest. As was once said by Buller, Coke seemed to have not only a jealousy , but a positive enmity against the admiralty jurisdiction.

"Notwithstanding the fact that the procedure of the Admiralty Court was vasty better adapted to the settlement of controversies over which that court had acquired jurisdiction, political events told heavily against it in the contest. The common - law judges were in closer touch with the revolutionary forces. The result of the Civil War and the establishment of the Commonwealth insured the victory of the common-law over its rival. The jurisdiction of the Admiralty Court was thereby reduced to a low ebb. Much of the lost ground has been recovered to this court by modern legislation. The point here to be noted is that the common-law judges under the leadership of Coke wrested from the admiralty general jurisdiction over commercial causes. The extent of the victory could not at the time be fully appreciated, for English commerce was destined to expand beyond the most sanguine expectations." Street's Foundation of Legal Liability, Vol. II, p. 332-3 law, and administered in the regular common law courts of the country.