Page:Cardozo-Nature-Of-The-Judicial-Process.pdf/61

This page has been proofread, but needs to be validated.
HISTORY, TRADITION AND SOCIOLOGY

able. But the power is not lost because it is exercised with caution. “The law merchant," says an English judge, "is not fixed and stereotyped, it has not yet been arrested in its growth by being moulded into a code; it is, to use the words of Lord Chief Justice Cockburn in Goodwin v. Roberts, L. R. 10 Excl. 346, capable of being expanded and enlarged to meet the wants of trade."[1] In the absence of inconsistent statute, new classes of negotiable instruments may be created by mercantile practice.[2] The obligations of public and private corporations may retain the quality of negotiability, despite the presence of a seal, which at common law would destroy it. “There is nothing immoral or contrary to good policy in making them negotiable if the necessities of commerce require that they should be so. A mere technical dogma of the courts or the common law cannot prohibit the commercial world from inventing or issuing any species of

61
  1. Edelstein v. Schuler, 1902, 2 K. B. 144, 154; cf. Bechuanaland Exploration Co. v. London Trading Bank, 1898, 2 Q. B. 658.
  2. Cases, supra.