Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/333

 3, HOLDSWORTH: THE LAW MERCHANT 319 It is quite clear that the court of Admiralty had on its side not only historical truth, but also substantial convenience. Prynne, Zouch, and Jenkins prove clearly both these facta. It is clear that the opposition of Coke and the common lawyers was unscrupulous. But it is clear that the common law had, after the Great Rebellion, gained the upper hand. And, from the point of view of the common law, the attack had been skilfully directed upon a position which it was worth much to secure; for the prize was nothing less than jurisdiction in all the commercial causes of a country the commerce of which was then rapidly expanding. Its com- merce was in the future destined to expand beyond the most sanguine dreams of the 17th century. Coke could not foresee this. But he worshipped the common law; and he rendered it by no means the least of his many valuable services when he directed, and perhaps even misdirected, his stores of tech- nical learning to secure for it this new field. To the litigant his action meant much inconvenience. To the commercial law of this country it meant a slower development.^ But to the common law it meant a capacity for expansion, and a con- tinued supremacy over the law of the future, which con- solidated the victories won in the political contests of the 17th century. If Lord Mansfield is to be credited with the honourable title of the founder of the commercial law of this country, it must be allowed that Coke gave to the founder of that law his opportunity.^ ' Select Pleas of the Admiralty (S. S.) ii Ixxx, " Many points of maritime law that were afterwards painfully elaborated by the common lawyers had for at least a century been familiar to the civilians," e. g. the liability of a carrier for loss by thieves was discussed at West- minster in 1671. It had been settled in the Admiralty as early as 1640. We can say the same as to many questions relating to Bills of Ex- change. Bills of Lading, General Average, and Insurance. The common law followed the Admiralty "with tardy steps, perhaps unconsciously, certainly without acknowledgement." law and the Admiralty manifested itself in the United States. The Massachusetts House of Representatives, just before the Revolution, resolved that, "the extension of the powers of the court of Admiralty within this province is a most violent infraction of the right of trial by juries," Williams and Bruce 5 n. k. Cp. Ramsay v. Allegre (1827) 12 Wheaton 611. As Roger North says "it is the foible of all judicatures to value their own justice and pretend that there is none so exquisite as theirs; while, at the bottom, it is the profits accruing that sanctify any court's authority."
 * It is curious to note that a similar jealousy between the common