« VorigeDoorgaan »
have seen that W. Welwod, professor of the civil law in the University of St. Andrews, published in 1613 a useful collection of sea laws,1 large parts of which were incorporated by Malynes in his chapters on maritime law. Marius, a public notary, wrote in 1651, a tract designed to give practical advice on the subject of bills of exchange. It was not until 1676 that a man who had some claims to be called an English lawyer wrote upon these topics. Charles Molloy, who was both a civilian and a member of Lincoln's Inn and Gray's Inn, in the second book of his very successful treatise, De Jure Maritimo et Navali,3 gives us some account of these branches of the law, based partly upon the works of Marius on Bills of Exchange, but principally upon the work of Malynes.
Gerard Malynes, a merchant, was the first Englishman to treat of the Law Merchant as a whole. He was the first to write a treatise on this subject which could be compared with the similar treatises which, throughout the sixteenth century, were appearing in the chief countries of Europe. His book was therefore a pioneer treatise, which introduced English merchants and lawyers and statesmen to the legal doctrines and economic speculations of the Continent; and the fact that it was written by a merchant, and not by a lawyer, tells us something of the manner in which this branch of the law was growing up. It summed up its growth during this period; and therefore it is to Malynes and his book that we must turn if we would understand the nature of this growth.
Malynes was of Lancashire descent-the son of a mint master, who had emigrated to Antwerp in 1552; and it was at Antwerp that he was born. His father probably came to England with his family in 1561. We first hear of Malynes in 1586, when he was appointed one of the commissioners of trade in the Low Countries for settling the value of money. From that time onwards he was frequently consulted by the government on
1 Above II.
2 The fourth edition, enlarged and corrected by the author, is printed in the 1686 edition of Malynes, Lex Mercatoria; the author tells us in his preface that the book is" the crop of four and twenty years experience in my imployment in the Art of a Notary publick, which I am, and do yet practise at the Royal Exchange in London both for Inland and Outland Instruments."
3 The book deals partly with international, partly with commercial and maritime law; the first book is wholly occupied with the former subject, the second with the latter, and the third to some extent with both; it went through many editions, the last being published in 1778-more than a hundred years after its first publication. 4 The full title of the book is, "Consuetudo, vel, Lex Mercatoria: or the Ancient Law-Merchant. In three parts according to the essentials of traffic. Necessary for Statesmen, Judges, Magistrates Temporal and Civil Lawyers, Mintmen, Merchants, Mariners, and all others negotiating in any Parts of the World."
5 See Mr. Hewins' article in the Dict. Nat. Biog.; and cf. Hewins, English Trade and Finance in the Seventeenth Century xx-xxv.
matters relating to trade and the coinage. He became one of the assay masters of the mint, and was engaged on several schemes to work English mines. He was employed to carry out a project which he had advocated for the coinage of brass farthings; but the project ended disastrously. In 1619 he was imprisoned for debt, because, as he told the king in a petition which he presented to him, his employers had insisted on paying him in his own farthings. In 1622 he gave evidence as to the state of the coinage to the standing committee on trade; and he lived long enough to address a petition to the House of Commons in 1641.
All through his life he had thought and written much on economic subjects; and his writings are the more valuable because he had had practical experience as a merchant. With the facts about which he speculated, and the rules of law about which he wrote, he had come into personal contact. Some of his theories-notably his favourite theory as to the effect of the operations of the exchangers of money upon trade-were false.1 But, because of the close touch which he maintained with the realities of commercial life, all his works are valuable to the historian of the commerce and the commerial law of this period.
It was perhaps this combination of a speculative mind and a studious temperament, with the practical career of a business man interested in the politics which bore upon business, which induced him to write his famous book upon commerce and commercial law. From the first it was a success. It was first published in 1622, and a second edition was called for in 1629. It was republished in 1636, and again in 1686. In the latter edition it was bound up with other tracts dealing both with mercantile and other subjects.3
The book is divided into three parts. The first part contains forty-seven chapters, and deals mainly with the principal topics
1 Hewins, English Trade and Finance in the Seventeenth Century xxii, xxix ; the fallacy was pointed out by Misselden, ibid.
2 Mr. Hewins, op. cit. says, "We find him turning over the Tower records for information about trade, and reading with interest a scarce manuscript at Lambeth"; and again, at p. xxii, "Malynes' practical experience as a merchant was great, and brought him into contact with men of all kinds. His books abound with little touches which show that he was familiar with and had been engaged in business transactions at most of the great centres of European commerce. We find him buying from Sir Francis Drake pearls which he had brought back after his successful raid on Cartagena in 1587, discussing mining with Sir Walter Raleigh, and experimenting on the properties of diamonds."
3 It is to this edition that my references are made. It contains also the following tracts:-The Collection of Sea Laws by Welwod; Advice concerning Bills of Exchange by Marius; the Merchants' Mirror by R. Dafforme, late Accountant; An Introduction to Merchants' Accounts by Collins; the Accountants' Closet by A. Liset; the Jurisdiction of the Admiralty of England Asserted by Zouche; the Ancient Sea Laws of Oleron, Wisby, and the Hanse towns translated by Miege; the Sovereignty of the British Seas by Buroughs.
of commercial and maritime law; the second part deals with money; the third part with bills of exchange, process to compel appearance and the execution of judgments, and the various courts in which the Law Merchant was administered at home and abroad. The book is often discursive. We have a fantastical disquisition on the mysteries of numbers,1 and a useful discourse on weights and measures used in different parts of the world.2 There is an attempt to give a geometrical description of the world,3 and an account of some of the new plantations and discoveries.* While discussing usury, he turns aside to advocate a favourite scheme for the establishment of a Mons Pietatis under government supervision. His last chapter but one entitled "The Due Commendation of Natural Mother Wit," is a curious mixture of vain speculation and a few anecdotes."
But these aberrations form but a small part of the book. The greater part contains much that is valuable to the economist and the lawyer. Mr. Hewins tells us that he was "the first English writer in whose works we find that conception of Natural Law which was later on to play such an important part in the development of economic science." 7 No doubt his legal lore had helped him to this conception. It is not, however, so much on the speculative problems of economic science, as on the practical side of business life, that the book is strongest. It contains many plain and straightforward disquisitions upon all matters which a merchant should know. There is information upon geography political and physical, statistics, customs duties, accounting, as well as upon the commercial law and practice of the time. can cite ancient literature and the modern ordinances of continental states. He is familiar with the civil law and the works of the commentators; and the whole book is enlivened by the manner in which he uses his experience of commercial and of public life to illustrate the topics which he is discussing. It is the book of a man who has lived in the contemporary world of commerce, and has taken some part in making the commercial laws about which he is discoursing. He delights in concrete
facts-the mechanism of banking, the machinery of the custom house, the encouragement of manufacturers, the standards of money, the working of mines, and the business of the mint. It is for this reason that he was so eminently fitted to explain to Englishmen the principles which underlay the laws which regulated the commerce of his age. He could explain them by reference to fact and experience without using the technical terms
1 Pt. I. c. 3.
4 Ibid c. 46.
2 Ibid c. 4.
5 Pt. II. c. 13.
3 Ibid c. 6.
6 Pt. III. c. 19.
7 English Trade and Finance in the Seventeenth Century xxi.
of the civil law. He therefore conveyed them to England in a form in which they could be readily acclimatized and received either by the common lawyers or the civilians.1
Malynes thus crystallized and put into permanent form the mercantile usages and practice which, throughout the century, had been transforming mercantile law. But he recognized that to understand these usages and this practice, some account of the doctrines of the civilians was essential. He notes their opinions on the law as to agency, as to insurance, as to partnership, and as to contracts made verbally." What he has to say as to pecunia trajecticia and usura maritima could be found in any of the continental treatises of the period. He cites Bartolus as to the extent of territorial waters, and Straccha and other civilians as to points in the law of bankruptcy. In dealing with procedure before the courts of merchants he cites another tract of Straccha-Quo modo procedendum sit in causis mercatorum-"Wherein are many universal things propounded." 10
That the Law Merchant was chiefly based upon the works of the civilians, who had adapted the civil law to modern commercial needs, is obvious from the works of other authors, and from the practice of the Council. Welwod, in his Abridgment of the sea laws, cites the Consolato del Mare, the Rhodian Law, Straccha, Ferretus, Shardius, Peckius," Bartolus, Baldus, and many other commentators on relevant passages of the Digest; and the Council often associated civilians with the merchants in the very numerous cases which they sent to arbitration.12 As Sir Thomas Ridley pointed out, this law was far better suited to the needs of the merchants than the English common law, partly because it contained, while the common law did not contain, the rules of law which were made to deal with their cases, partly because these rules were better known to the foreign merchants suing in this country.13 But, though Malynes would have admitted that the
1 Pepys rightly regarded the book as a suitable present to a boy who was just going to the East Indies, Diary (Ed. Wheatley) vii 240.
Lex Merc. p. 5, "To give satisfaction to the learned and judicious, I have extracted the observations of the learned in the civil laws, upon all the precedent points, and added them unto the following chapters distinctly from the customs of merchants; using the ordinary name of Civilians in general, without naming any particular author, to avoid ambiguity and uncertainty in the contents of this book." Ibid 115-119. 5 Ibid 120, 150. 8 Ibid 133. 11 Pp. 4-6 (ed. 1613).
3 Op. cit. 79-81.
6 Ibid 93.
9 Ibid 158, 160, 161.
7 Ibid 122, 123.
12 See e.g. Dasent iv 92 (1532); ix 168 (1575); xiv 214 (1586); xx 202 (15901591); xxiv 70 (1592)-doctors of civil law were to represent the parties before the court of Requests.
13 Ridley, a view of the Civil and Ecclesiastical Law 175-177, "What equity can it be to take away the triall of such business as belongeth to one court, and to pull it to another court; specially, when as the court from whence it is drawn, is more fit for it, both in respect of the fulness of knowledge that that court hath to deal in such
civil law was the basis of much of the Law Merchant which he was expounding, he would certainly have given it a position of secondary importance as a source of that law. He agreed with his continental brethren 1 in deprecating the excessive technicality of the civilians, and the unpractical character of some of their discussions. Though the knowledge of the civil law was useful, and indeed on some points essential, the main thing was a knowledge of mercantile usages and practice. This he held, was the real foundation of the everyday law which all merchants should know. (ii) Agencies.
What then were the agencies by which this law merchant, based on the usages and practice of the merchants, and moulded by the civilians into a legal system, was incorporated into English law? The answer is that the legislature, the executive, and the courts of Star Chamber, of Admiralty, of Equity, and of common law all took a hand in the work. Therefore of the share which
these different bodies took I must say a few words.
The share taken by the legislature in introducing into English law the changes and additions rendered necessary by the changed economic position of the country was not very large. A statute of 1540 made some additions to the jurisdiction of the court of Admiralty, and some new regulations as to rates of freight and as to the duties of shipowners. A statute of 1601 established a tribunal to hear cases of insurance; and other statutes introduced the beginnings of the usury laws, and the laws as to bankruptcy business, and also of the competency of skill, that is in the judges and professors of those courts. . . . For albeit they (the common lawyers) are very wise and sufficient men in the understanding of their own profession, yet have they small skill or knowledge in matters pertaining to the civil profession: for that there is nothing written in their books of these matters. . . . Whereas contrarily the civil law hath sundry titles... concerning these kinds of causes, whereupon the interpreters of the law have largely commented, and others have made several tractates thereon. . . . Besides this business concerns. .. also strangers . . who do live in countries ordered by the civil law. . . . And therefore it were no indifferency to call them from a trial of that law, which they in some part know, and is the law of their country (as it is almost to all Christendom besides) to the trial of a law which they know in no part; " cf. Zouche, op. cit. 129, 130; vol. i 554-555.
1 Above 81-84; 93-96.
2 Op. cit. 3-4" Bartolus, Baldus, Justinian, Ulpian, Paul Papinian, Benvenuto Straccha, Petrus Santern, Joannes Inder, Baldwinus de Ubald, Rodericus Suarez, Jason, Angel, Andrias Tiraquell, Alciatus, Budeus, Alexander Perusius, Pomponius, Incolaus Boertius, Azo, Celsus, Rufinus, Mansilius, Sillimanus, Accursius, Franciscus Aretinus, Grisogonus, Lotharius, Julianus, and divers other doctors and learned of the civil law have made many long discourses. . . of the questionable matters fallen out among merchants. by the reading whereof merchants are like to metamorphise their profession and become lawyers, than truly to attain to the particular knowledge of the said customs or law merchant: for they have armed questions and disputations full of quillets and distinctions over curious and precise, and many of them to small purpose, full of Apices Juris, which themselves have noted to be subtelties."