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Malynes, Gerard, Consuetudo, Vel Lex Mercatoria or The Ancient Law-Merchant (1st. ed., 1622)
Table of Contents
TO THE COVRTEOVS READER
That famous Philoſopher Xenophon, extolling the Perſian Lawes, teſtified that their Citizens from their infancie, were educated and taught not to attempt, or almoſt to imagine any thing but honeſt and iuſt. Which was the cauſe, as Gellius reporteth, that Draco a Citizen of Athens made their lawes ſo ſtrict and ſeuere, that it was ſaid They were written with Blood, and not with Inke: whereas on the other ſide the Law made by Solon was compared to a ſpiders web, which taketh the leſſer flies and ſuffers the greater to eſcape and to breake the ſame. So that (euerie extreame being vicious) Reaſon requireth a Law not too cruell in her Frownes, nor too partiall in her Fauors. Neither of theſe defects are incident to the Law-Merchant, becauſe the ſame doth properly conſiſt of the Cuſtome of Merchants in the courſe of Trafficke, and is approoued by all Nations, according to the definition of
Cicero, Vera Lex eſt recta Ratio, Natura congruens, diffuſa in Omnes, Conſtans, Sempiterna: True Law, is a right reaſon of nature agreeing therewith in all points, diffuſed and ſpread in all Nations conſiſting perpetually, whereby Meum and Tuum is diſtinguiſhed and distributed by Number, Weight and Meaſure, which ſhall bee made apparant. For the maintenance of Trifficke and Commerce is ſo pleaſant, amiable and acceptable vnto all Princes and Potentates, that Kings haue beene and at this day are, of the Societie of Merchants: And many times (notwithſtanding their particular differences and quarrells) they doe neuertheleſſe agree in this courſe of Trade, becauſe riches is the bright Starre, whoſe hight Trafficke takes to direct it ſelfe by, whereby Kingdomes and Commonweales doe flouriſh, Merchants being the meanes and inſtruments to performe the ſame, to the Glorie, Illustration, and Benefit of their Monarchies and States. Queſtionleſſe, therefore, the State of a Merchant is of great dignitie and to bee cheriſhed; for by them Countreys are diſcouered, Familiaritie betweene Nations is procured, and politike Experience is attained. Whereupon I have been mooued (by long obſeruation) to put the worthines of the Cuſtomarie Law of Merchants, in plaine and compendious writing, by undoubted principles, familiar examples, and demonſtratiue reaſons, without affectation of curious words, more than the grauitie of the Theame (in ſome places) did require.
I have intituled the Booke, according to the ancient name of Lex Mercatoria, and not Ius Mercatorum; becauſe it is a Customary Law approued by the authoritie of all Kingdomes and Commonweales, and not a Law eſtabliſhed by the Soueraigntie of any Prince, either in the first foundation or by continuance of time. And beginning with Time, Number, Weight and Meaſure, I doe deſcend to the three Eſſentiall Parts of Trafficke, diuided into three parts accordingly, by comparing them to the Bodie, Soule, and Spirit of Commerce, namely, Commodities, Money, and Exchange for money by Billes of Exchanges. The first, as the Bodie, vpheld the World by Commutation and Bartring of Commodities, vntill money was deuiſed to bee coyned. The ſecond, as the Soule in the Bodie, did infuſe life to Traffike, by the meanes of Equalitie and Equitie preuenting aduantage betweene Buyers and Sellers. The third, as the Spirit and Facultie of the Soule, (being ſeated euerie where) corroborateth the Vitall Spirit of Trafficke, directing and controlling (by iust proportions) the prices and values of Commodities and Moneys. For euen as Merchants are the Inſtrumentall Cauſe of Trade; euen ſo is the Exchange for Moneys, the Efficient Cauſe with vs in the courſe of Trafficke, and become Predominant or ouerruling the price of Commodities and Moneys, as aforeſaid. This is manifeſted by three Paradoxes alluding to the ſaid three Eſſentiall Parts of Commerce, which (for a Corrollarie) I haue added in the latter end of this Booke, with ſuch other worthy obſeruations as in the firſt Chapter are declared. And euen as the roundneſſe of the Globe of the World is compoſed of the Earth and Waters: So is the Bodie of Lex Mercatoria, made and framed of the Merchants Cuſtomes, and the Sea-Lawes, which are involued together as the Seas and Earth. In the deſcription whereof, I haue vſed to make repetition of the Materiall points, according as occaſion did miniſter vnto me for to make application thereof, for the better vnderſtanding of the Iudicious Reader, which is the maine Scope that all Writers are to regard and care for. The meanes whereby the differences and controuerſies happening betweene Merchants in the courſe of Trade are ended, is alſo declared, which moſt of all require Breuitie and Expedition, and had need of a peremptorie proceeding, as was inuented for the Common Law of the Realme of England, the due commendation whereof is added beereunto; ſhewing alſo how of the ſame there might bee made an Art or Science, and what obſeruation of other Lawes are concurring with ours, both in the ſtrictneſſe of Law, and the lenitie of Equitie, most conſonant with the Law-Merchant, the knowledge whereof is of ſo great conſequence, that without it all Temporall Lawes are not compleat, but imperfect. The Scope of all therefore is, That the Rule of Equalitie and Equitie may take place betweene Vs and other Nations, which Velut Ariadnæ cæca regens filo veſtigia, non modo nos errare non sinit, ſed etiam efficit, vt aberrantes in rectam viam deducamur, as hath beene mentioned in our laſt Treatiſe of the maintenance of free trade, lately publiſhed. Concluding (gentle Reader) vpon all the premiſſes handled (as I hope) ſubſtantially, I commend and ſubmit the ſame to the louing entertainement of the profound and diſcerning iudgement of the diſcreet, wiſe, and experienced; wiſhing that (like matter ſet downe by the Penne of Apollo) they may ſound ſweetly in your apprehention, and giue to your conceit moſt harmonious Muſicke; Pleaſure and Delight. London the 25 of Nouember 1622.
Thine to vſe alwaies readie,
AN INDVCTION TO LEX MERCATORIA, OR THE LAW MERCHANT, AND THE ANTIQVITIE THEREOF.
When Almightie God had created man, good and a ſociable creature, who could not ſo well liue alone, as other creatures ſufficiently prouided (by nature) for their ſuſtenance, and had reaſon aſſigned and giuen vnto him, aboue all the ſaid creatures: yet all the meanes and faculties of his bodie and ſoule, were not ſufficient to make him happie whileſt he was alone. But neceſſitie did require a concourſe of men helping one another to ſupplie (with a common ſtrength) the ſaid weakeneſſe; for the burden of the ſaid neceſſitie was ſo weightie and great, that one man alone was not able to manage the ſame. Then it came to paſſe, that by mutuall contribution of offices, euerie man did afford means according to his abilitie for the common good, ſo that thoſe which were of a ſtrong bodie did emploie their labour to get liuing and maintenance for themſelues and others: And thoſe which were endued with the beſt part of the ſoule, as Vnderſtanding and Reaſon, did vndertake the moſt important matters, teaching men how to liue well, and informing them of their felicitie (which they iudged chiefely to conſiſt in vertuous actions) endeauouring to make impreſſion in the ſoule of man, of certaine good lawes for the obſeruation thereof, with a reference of them to the firſt law engraffed in the ſoule of man, as a part of that diuine light, which was infuſed in him to know (in ſome meaſure of perfection) the good and euill, and accordingly to receiue reward of puniſhment.
As for the other and better part of informing and guiding the thoughts and affections of men to a ſupermaturall end, that, as ſurpaſſing the compaſſe of that lower ſpheare wherein I now moue, muſt be left vntouched by me, who here take for my obiect not the ſpirituall but the ciuill life of man and the meanes thereto conducing.
Touching therefore the externall part. The mutuall contribution of offices amongſt men hath from the beginning continued both in labouring and manuring the naturall riches of the lands in come and paſturage, as in the immediate children of our firſt father Adam, and in planting Vines, and making an extract of the iuyce of the fruit of them, as Noah. Which riches in matter and foundation naturall, and partly alſo in alteration and managing artificially, euery poſſeſſor not long after the beginning of the world ſeuerally inioyed in propertie: and hence did proceed a commerce, firſt, in reall enterchange and communication of things of the ſame or other kinds, but all naturall commodities, as ſheepe for ſheepe, ſheepe for come, wine for oyle, &c. between man and man, or nations and nations, according to number, weight, and meaſure, and after, to auoid confuſion, by a commune pignus currant mutuall, which we call money, both by way of merchandizing, the moſt ancient euidence hereof is Abrahams purchaſing for money a field for buriall. The obſeruation and cuſtomes whereof, was the beginning of the Law-Merchant, and that eſpecially when mankind was propagated into an infinite number, and the domeſtiques or neere hand commodities were not ſufficient for their ſuſtenance in ſome countries, and in other countries were ouver aboundant: Then of neceſſitie followed the vſe of truſting, exchanging, and trading; firſt, on the Land in the maine Continent, and then extenſiuely vpon the Seas, both for fiſhing and negotiation. Then did merchants trauell from countrey to countrey: So in the dayes of the Patriarke Iacob, did the merchants Medianits in their iourney meete with the children of Iacob, and then Ioſeph was carried ther and all his family. And then it was and proued to be true, (which experience hath confirmed) that Vita civilis in ſocietate poſita eſt, ſocietas autem in imperio & commercio: So that in plainely appeareth, that the Law Merchant, may well be as ancient as any humane Law, and more ancient than any written Law. The very morall Law it ſelfe, as which hath ſo continued and beene daily augmented ſucceſſiuely vpon new occaſions, and was not altogether made in the firſt foundation, as the Lawes whereby the Common-weales of Iſrael (whoſe Lawes were vniformely made by Moſes from God:) or thoſe of Crete, Cybaris, Sparta, & Carthage, by Minos, Charondas, Lycurgus, and Phalcas. Neuertheleſſe, many Emperours and Kings haue alwaies referred the ending of differences, which happen betweene Merchants, to be done & decided according to the Law-Merchant, That is to ſay, according to the Cuſtome of Merchants, who by their trauels found the diuerſitie of weights and meaſures, and the goodneſſe and vſe of commodities pleaſing to all nations, whereby the ſuperfluities of them were vented amongſt them. Vt quod vſpiam naſcitur boni, id apud omnes affluat.
This Law of Merchants, or Lex Mercatoria, in the fundamentals of it, is nothing elſe but (as Cicero difneth true and iuſt Law) Recta Ratio, natura congruens, diffuſa in omnes, Conſtans ſempiterna: True Law is right Reaſon, agreeable to Nature in all points, diffuſed and ſpread in all Nations, conſiſting perpetually without abrogation: howbeit ſome doe attribute this definition vnto ius gentium, or the Law of Nations, which conſiſteth of Cuſtomes, Manners, and preſcreptions of all Nations, being of like conditions to all people, and obſerued by them as a law: But the matter being truely examined, we ſhall find it more naturally and properly belongeth to the Law-merchant.
Euery man knwoeth, that for Manners and Preſcriptions, there is great diuerſitie amongſt all Nations: but for the Cuſtomes obſerued in the courſe of trafficke and commerce, there is that ſympathy, concordance, and agreement, which may bee ſaid to bee of like condition to all people, diffuſed and ſpread by right reaſon, and inſtinct of nature conſiſting perpetually. And theſe Cuſtomes are properly thoſe obſeruations which Merchants maintaine betweene themſelues, and if theſe bee ſeparated from the Law of Nations, the remainder of the ſaid Law will conſiſt but of few points.
Princes and Potentates by their prerogatiues (reſpecting the law of Nations) doe permit amongſt themſelues a free trauelling by land through their ſeuerall Kingdomes, Territories, and Dominions, vnleſſe they bee open enemies: They hold likewiſe a communitie of the ſeas for Nauigation, as alſo a diſtinct dominion of the ſeas adioyning to the territories and iuriſdiction of their countries, they take Cuſtome, Subſidies, and all manner of impoſitions vpon the commodities imported and exported out of their Habours, Hauens, and Ports, as alſo duties for the fiſhing in their Seas, Streames, and Dominions; of all which the Merchant is to take eſpeciall notice, to auoid danger in the trafficke and trade with their ſubiects, for non-payment of the ſame, which they claime iure gentium.
Are not the Sea Lawes eſtabliſhed to decide the controuerſies and differences happening betweene Merchants and Marriners? And is it not conuenient for Merchants to know them? Conſidering that Merchants maintaine the Fiſher-men, and (by way of Trade) cauſe the Sea and Land Commodities to bee diſperſed euerie where? So that the ſaid prerogatives doe alſo appertaine to the Law-merchant as properly inherent vnto commerce, and the obſeruation of Merchants being of like condition to all people and nations.
Concerning manners and preſcriptions, wherein the differences is to be noted from the Law-Merchant; the ſame conſiſt in the erecting of Offices, creating of Officers, and making of Lawes, which of themſelues make a ſeperation betweene Cuſtomes: Alſo the giuing or beſtowing of honours and dignities, the granting of priuiledges, and the doing of any thing which concerneth the Honor, Body, and goods [...]
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