Document-Id: 104970, Please cite as: "http://www.trans-lex.org/104970"

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Malynes, Gerard, Consuetudo, Vel Lex Mercatoria or The Ancient Law-Merchant (1st. ed., 1622)

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TO THE COVRTEOVS READERAN INDVCTION TO LEX MERCATORIA, OR THE LAW MERCHANT, AND THE ANTIQVITIE THEREOF.CHAP. I

Content

TO THE COVRTEOVS READER

cover of malynes
Click here for a scan of Malynes' Book (1st. ed.)

That famous PhiloÅ¿opher Xenophon, extolling the PerÅ¿ian Lawes, teÅ¿tified that their Citizens from their infancie, were educated and taught not to attempt, or almoÅ¿t to imagine any thing but honeÅ¿t and iuÅ¿t. Which was the cauÅ¿e, as Gellius reporteth, that Draco a Citizen of Athens made their lawes Å¿o Å¿trict and Å¿euere, that it was Å¿aid They were written with Blood, and not with Inke: whereas on the other Å¿ide the Law made by Solon was compared to a Å¿piders web, which taketh the leÅ¿Å¿er flies and Å¿uffers the greater to eÅ¿cape and to breake the Å¿ame. So that (euerie extreame being vicious) ReaÅ¿on requireth a Law not too cruell in her Frownes, nor too partiall in her Fauors. Neither of theÅ¿e defects are incident to the Law-Merchant, becauÅ¿e the Å¿ame doth properly conÅ¿iÅ¿t of the CuÅ¿tome of Merchants in the courÅ¿e of Trafficke, and is approoued by all Nations, according to the definition of 

Cicero, Vera Lex eÅ¿t recta Ratio, Natura congruens, diffuÅ¿a in Omnes, ConÅ¿tans, Sempiterna: True Law, is a right reaÅ¿on of nature agreeing therewith in all points, diffuÅ¿ed and Å¿pread in all Nations conÅ¿iÅ¿ting perpetually, whereby Meum and Tuum is diÅ¿tinguiÅ¿hed and distributed by Number, Weight and MeaÅ¿ure, which Å¿hall bee made apparant. For the maintenance of Trifficke and Commerce is Å¿o pleaÅ¿ant, 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 (notwithÅ¿tanding their particular differences and quarrells) they doe neuertheleÅ¿Å¿e agree in this courÅ¿e of Trade, becauÅ¿e riches is the bright Starre, whoÅ¿e hight Trafficke takes to direct it Å¿elfe by, whereby Kingdomes and Commonweales doe flouriÅ¿h, Merchants being the meanes and inÅ¿truments to performe the Å¿ame, to the Glorie, Illustration, and Benefit of their Monarchies and States. QueÅ¿tionleÅ¿Å¿e, therefore, the State of a Merchant is of great dignitie and to bee cheriÅ¿hed; for by them Countreys are diÅ¿couered, Familiaritie betweene Nations is procured, and politike Experience is attained. Whereupon I have been mooued (by long obÅ¿eruation) to put the worthines of the CuÅ¿tomarie Law of Merchants, in plaine and compendious writing, by undoubted principles, familiar examples, and demonÅ¿tratiue reaÅ¿ons, without affectation of curious words, more than the grauitie of the Theame (in Å¿ome places) did require.


PDF of the entire book (3rd ed.) available here

I have intituled the Booke, according to the ancient name of Lex Mercatoria, and not Ius Mercatorum; becauÅ¿e it is a Customary Law approued by the authoritie of all Kingdomes and Commonweales, and not a Law eÅ¿tabliÅ¿hed by the Soueraigntie of any Prince, either in the first foundation or by continuance of time. And beginning with Time, Number, Weight and MeaÅ¿ure, I doe deÅ¿cend to the three EÅ¿Å¿entiall 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 deuiÅ¿ed to bee coyned. The Å¿econd, as the Soule in the Bodie, did infuÅ¿e 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 Å¿eated 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 InÅ¿trumentall CauÅ¿e of Trade; euen Å¿o is the Exchange for Moneys, the Efficient CauÅ¿e with vs in the courÅ¿e of Trafficke, and become Predominant or ouerruling the price of Commodities and Moneys, as aforeÅ¿aid. This is manifeÅ¿ted by three Paradoxes alluding to the Å¿aid three EÅ¿Å¿entiall Parts of Commerce, which (for a Corrollarie) I haue added in the latter end of this Booke, with Å¿uch other worthy obÅ¿eruations as in the firÅ¿t Chapter are declared. And euen as the roundneÅ¿Å¿e of the Globe of the World is compoÅ¿ed of the Earth and Waters: So is the Bodie of Lex Mercatoria, made and framed of the Merchants CuÅ¿tomes, and the Sea-Lawes, which are involued together as the Seas and Earth. In the deÅ¿cription whereof, I haue vÅ¿ed to make repetition of the Materiall points, according as occaÅ¿ion did miniÅ¿ter vnto me for to make application thereof, for the better vnderÅ¿tanding of the Iudicious Reader, which is the maine Scope that all Writers are to regard and care for. The meanes whereby the differences and controuerÅ¿ies happening betweene Merchants in the courÅ¿e of Trade are ended, is alÅ¿o declared, which moÅ¿t 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; Å¿hewing alÅ¿o how of the Å¿ame there might bee made an Art or Science, and what obÅ¿eruation of other Lawes are concurring with ours, both in the Å¿trictneÅ¿Å¿e of Law, and the lenitie of Equitie, most conÅ¿onant with the Law-Merchant, the knowledge whereof is of Å¿o great conÅ¿equence, 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 veÅ¿tigia, non modo nos errare non sinit, Å¿ed etiam efficit, vt aberrantes in rectam viam deducamur, as hath beene mentioned in our laÅ¿t TreatiÅ¿e of the maintenance of free trade, lately publiÅ¿hed. Concluding (gentle Reader) vpon all the premiÅ¿Å¿es handled (as I hope) Å¿ubÅ¿tantially, I commend and Å¿ubmit the Å¿ame to the louing entertainement of the profound and diÅ¿cerning iudgement of the diÅ¿creet, wiÅ¿e, and experienced; wiÅ¿hing that (like matter Å¿et downe by the Penne of Apollo) they may Å¿ound Å¿weetly in your apprehention, and giue to your conceit moÅ¿t harmonious MuÅ¿icke; PleaÅ¿ure and Delight. London the 25 of Nouember 1622.

Thine to vſe alwaies readie,

GERARD MALYNES.

[...]

AN INDVCTION TO LEX MERCATORIA, OR THE LAW MERCHANT, AND THE ANTIQVITIE THEREOF.

CHAP. I

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 amongÅ¿t men hath from the beginning continued both in labouring and manuring the naturall riches of the lands in come and paÅ¿turage, as in the immediate children of our firÅ¿t 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 alÅ¿o in alteration and managing artificially, euery poÅ¿Å¿eÅ¿Å¿or not long after the beginning of the world Å¿euerally inioyed in propertie: and hence did proceed a commerce, firÅ¿t, in reall enterchange and communication of things of the Å¿ame or other kinds, but all naturall commodities, as Å¿heepe for Å¿heepe, Å¿heepe for come, wine for oyle, &c. between man and man, or nations and nations, according to number, weight, and meaÅ¿ure, and after, to auoid confuÅ¿ion, by a commune pignus currant mutuall, which we call money, both by way of merchandizing, the moÅ¿t ancient euidence hereof is Abrahams purchaÅ¿ing for money a field for buriall. The obÅ¿eruation and cuÅ¿tomes whereof, was the beginning of the Law-Merchant, and that eÅ¿pecially when mankind was propagated into an infinite number, and the domeÅ¿tiques or neere hand commodities were not Å¿ufficient for their Å¿uÅ¿tenance in Å¿ome countries, and in other countries were ouver aboundant: Then of neceÅ¿Å¿itie followed the vÅ¿e of truÅ¿ting, exchanging, and trading; firÅ¿t, on the Land in the maine Continent, and then extenÅ¿iuely vpon the Seas, both for fiÅ¿hing 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 IoÅ¿eph was carried ther and all his family. And then it was and proued to be true, (which experience hath confirmed) that Vita civilis in Å¿ocietate poÅ¿ita eÅ¿t, Å¿ocietas 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 Å¿elfe, as which hath Å¿o continued and beene daily augmented Å¿ucceÅ¿Å¿iuely vpon new occaÅ¿ions, and was not altogether made in the firÅ¿t foundation, as the Lawes whereby the Common-weales of IÅ¿rael (whoÅ¿e Lawes were vniformely made by MoÅ¿es from God:) or thoÅ¿e of Crete, Cybaris, Sparta, & Carthage, by MinosCharondasLycurgus, and Phalcas. NeuertheleÅ¿Å¿e, 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 Å¿ay, according to the CuÅ¿tome of Merchants, who by their trauels found the diuerÅ¿itie of weights and meaÅ¿ures, and the goodneÅ¿Å¿e and vÅ¿e of commodities pleaÅ¿ing to all nations, whereby the Å¿uperfluities of them were vented amongÅ¿t them. Vt quod vÅ¿piam naÅ¿citur boni, id apud omnes affluat.

This Law of Merchants, or Lex Mercatoria, in the fundamentals of it, is nothing elÅ¿e but (as Cicero difneth true and iuÅ¿t Law) Recta Ratio, natura congruens, diffuÅ¿a in omnes, ConÅ¿tans Å¿empiterna: True Law is right ReaÅ¿on, agreeable to Nature in all points, diffuÅ¿ed and Å¿pread in all Nations, conÅ¿iÅ¿ting perpetually without abrogation: howbeit Å¿ome doe attribute this definition vnto ius gentium, or the Law of Nations, which conÅ¿iÅ¿teth of CuÅ¿tomes, Manners, and preÅ¿creptions of all Nations, being of like conditions to all people, and obÅ¿erued by them as a law: But the matter being truely examined, we Å¿hall 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 (reÅ¿pecting the law of Nations) doe permit amongÅ¿t themÅ¿elues a free trauelling by land through their Å¿euerall Kingdomes, Territories, and Dominions, vnleÅ¿Å¿e they bee open enemies: They hold likewiÅ¿e a communitie of the Å¿eas for Nauigation, as alÅ¿o a diÅ¿tinct dominion of the Å¿eas adioyning to the territories and iuriÅ¿diction of their countries, they take CuÅ¿tome, SubÅ¿idies, and all manner of impoÅ¿itions vpon the commodities imported and exported out of their Habours, Hauens, and Ports, as alÅ¿o duties for the fiÅ¿hing in their Seas, Streames, and Dominions; of all which the Merchant is to take eÅ¿peciall notice, to auoid danger in the trafficke and trade with their Å¿ubiects, for non-payment of the Å¿ame, 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 [...]

This document is cited by

Anthony Gibson against Edward Ferrers (Court decision on an Award rendered by Gerard Malynes in December 1623. Introduction by Derek Roebuck),  (1996) 62 Arbitration 12 et seq.
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