a summe of money of the owners of a ship in consideration that he fraighteth the said ship for a voyage promising to repay the said money at the returne of the said voyage if the said Factor haue fraighted this ship for another mans account this Merchant is to haue the benefit of this money during the time and if the Factor conceale the same he is to repaire the damage thereof which is to be considered both for the interest and aduenture of the seas for the said owners beare the same and it is supposed that the Merchant would haue assured so much the lesse or by imploying that money towards the lading of the ship he should disburse to much money lesse to make the said voyage and it may be thought that in regard of that money the fraight is made the greater whereof the said owners of the ship haue had a consideration by disbursing the same Assurance If a Factor be required to make assurance for a Merchant vpon a ship or goods laden for a certaine voyage and haue moneys in his hands to pay for the Premio or the price of assurance and this Factor doth neglect the same and giueth no notice of it to the Merchant who might haue made assurance in another place and the said ship or goods do perish at the seas this Factor is to answere the damage vnlesse he can giue some sufficient reason for the non-performance of the said order or Commission Composition made without order If a Factor hauing made assurance vpon goods laden which afterwards are taken by the enemie maketh any composition with the assurers for the same without order or Commission for it he is to answere the whole assurance to the Merchant A Merchant caused a ship to be fraighted and laden with commodities for Constantinople by a Factor of London himselfe dwelling at Antuerpe and being a subiect to the king of Spaine in the late warres caused 2000 ll to be assured at London vpon the said goods the ship and goods was taken by the Gallies of Sicilia and brought to Palermo where it was proued that the goods did appertaine to the King of Spaine his subiects but that there was 2000 ll assured at London by English Merchants their enemies in those daies pretending thereupon to take the said goods for forfeited or so much of them as should amount to the summe so assured Hereupon the Assurers hauing intimation from the Factor of it desired to make some composition to auoid that danger whereby the goods also might bee sooner cleered and the possession obtained for the owner and proprietarie thereof which was the Merchant of Antuerp wherein expedition was required The Factor in regard of the said expedition did not stay to receiue an answere from the Merchant what hee should doe but maketh a composition with the assurors for 60 pound for the hundreth pound to be payed instantly The goods were afterwards all recouered whereof so much as had beene assured was formerly relinquished to the assurors for the Merchant would not condescend to make any composition with the assurors So that the Factor did beare the aduenture to lose 2000 ll for some 1200 ll which hee had receiued if the goods had not beene recouered and therefore the said Factor tooke to himselfe the benefit of this composition by the aduice of the experienced Merchants If a Factor by errour of account doe wrong vnto a Merchant Accounts hee is to amend and to make good the same not onely for the principall but also with the interest for the time So on the contrarie if a Factor for his owne wrong haue forgotten to charge the Merchants account with some parcells payed out for him or made ouer by exchange the Merchant is to answere for it with interest for the time In these precedent obseruations are comprised all other cases of differences which may happen betweene Factors and Merchants CAHP. XVII Of the beginning of Sea Lawes HAuing in the former Chapters methodically intreated as also in this hitherto of the matters therein intended neuerthelesse according to the Contents of them the matter being of seuerall natures runneth promiscuously but in the end will performe the worke For as the roundnesse of the Globe of the world is compounded of the Waters and the Earth So this worke of the Law-merchant cannot be compleat without the Sea Lawes so called Lawes because they are written and knowne for without Nauigation Commerce is of small moment so that the Land affaires shall be intermixed with Sea-faring matters accordingly Some doe attribute the first making of Sea Lawes to the Pheniciaus and Carthaginians because Plinie doth ascribe the Art of Sayling vnto them But by the most ancient Records the Beginning must be from the inhabitants of the Island of Rhodes Rhodian Law scituated within the Mediterranean Sea who were most famous for shipping and sayling as Strabo hath written and surpassing all Nations in knowledge of equitie in Maritime causes and the Mediterranean Sea was for aboue one thousand yeares onely ruled by their Law called the Rhodian Law although augmented with some additions of the Romanes At last as some haue recorded when all sorts of Lawes by the euersion and lacerating of the Romane Empire were in a manner buried the Rulers of Rome in the yeare 1075 made new Sea Lawes and Statutes and so did euery chiefe Seafaring Towne vpon the said Mediterranean Coast adding thereunto other ordinances So did they of Marseilles in the yeare 1162 Genoa in the yeare 1186 they of Peloponessus called Morea in the yeare 1200 the Venetians in the yeare 1262 Constantine 1270 Iames King of Arragon the said yeare Peter King of Arragon 1340 and they of Barselona 1434 Which Lawes are collected and extant vntill this day But on the great Ocean Seas The Law of Oleron the first Lawes were made by the inhabitants of the Island of Oleron scituate on the Sea-coast of France neere Saint Martin de Rea against the Riuer of Charante which was called Le Roll d' Oleron by which the controuersies on that Coast were determined and the said Lawes were afterwards dispersed and brought in vse in England and the Low Countries whereupon diuers Statutes both in England and Scotland haue been enacted for Sea-faring businesse and in like manner diuers ordinances in the Low Countries especially since their fishing trade began Edward the third King of England caused with the aduice of diuers men of knowledge and experience in Maritime causes diuers Articles to be set downe Admiraltie Court in France and these were enrolled and obeyed for the gouernement of the Admirall Court and the French King Iohn made his Contracts with King Edward accordingly concerning the fishing trade as by the Records extant in the Tower of London where I haue seene them may appeare Francis the French King and Henrie the third of France haue made some Statute Lawes concerning the Courts of Admiraltie but the substance of all
circumstantibus and empannell them that is To take other persons of the standers by which is done before the Iudge at the time of the Triall When the Iurie haue deliuered vp their verdict Verdict Iudgement and Execution if nothing bee alleaged in respite of judgement then judgement is had of course and alsoe execution is awarded to bee executed as the finall end of Law Neuerthelesse there are three meanes to dissolue the said judgement and execution namely By a Writ of Attaint a Writ of Error and an Audita Quaerela which Writ is grounded vpon Equitie by Law and Conscience The Writ of Attaint is not onely tedious and thargeable Writ of Attaint but also neuer or seldome tried for the same is brought by the partie grieued against the twelue men and the partie for whom the sentence is giuen And whereas before commonly vpon the first enquest they be all Yeomen or men of meane calling now vpon this Attaint must goe twentie foure Gentlemen of greater qualitie and fortie eight must be warned to appeare then there must in the Attaint no more euidence be brought in but onely that which was brought in and alleaged before the first enquest which not appearing of record is hard to bee made a plaine matter againe Gentlemen and others are loth to discredit their neighbours yet if the matter bee so apparant that they must needs find them attainted then meanes are found to deferre the judgement and it may bee the parties shall be brought to an agreement or at the least one of them that was of the attainted Iurors will dye in the meane time and then the Attaint ceaseth yet in this case if the partie be in prison which brought the Writ of Attaint he may be bailed as is in Natura Breuium The Writ of Error is more easie Writ of Error and was heretofore vsuall to prolong suits in Law before the Statute of Ieofaile was made meaning in good French I'ay failly For euerie small Error if it were but false Latine would ouerthrow a Cause but now it runneth into another extreame for if the partie grieued speaketh in arrest of judgement and sheweth some materiall Error vpon motion made the aduerse partie may haue it amended as often as Errors are opened the Record therefore ought to be first remoued and not onely by transcript be put into another Court but the partie is to plead thereunto in nullo est erratum and then the danger of opening Errors is past if there be no trickes vsed in amending of the Records vnder hand wherein lyeth a Cerciorare to satisfie the Court where the Record is brought namely from the Common Pleas to the Kings Bench Court from the Kings Bench to the Exchequer which heretofore was done in Parlement and therefore the partie grieued and in prison of the Kings Bench cannot be baileable vpon a Writ of Error after judgement and execution as hee is vpon a judgement of the Common Pleas in the Court of Kings Bench for this Court of Kings Bench in regard of the Pleas of the Crowne challengeth some prioritie herein The Writ of Audita Quaerela The Writ of Audita Quaerela is graunted out of the Kings Bench Court if the judgement doe depend there and returnable in the said Court or else out of the Chauncerie returnable in the Kings Bench whereupon the Lord Chancellor taketh foure bailes in the vacation Time before a Master of the Chauncerie and the matter doth meerely depend vpon the baile The suggestion of the Writ in matter of Law is a later contract after judgement and execution an escape in Law if the prisoner bee by the Gaoler permitted to goe abroad without the Kings Writ or if he breake prison in which case the Gaoler is to pay the debt or vpon a payment made since the execution also a wrong recouerie by an executor whom the Prerogatiue Court doth afterwards disavow Such and the like suggestions are to be tried by another Iurie vpon euidence to be produced to proue the said allegation A strict Law This Common Law is so strict that the Prouerbe is Summum ius summa iniuria for example If a man seized of lands in Fee hath issue two sonnes the eldest sonne goeth beyond the Seas and because a common voyce is that hee is dead the yonger brother is taken for heite the father dyed the yonger brother entred as heire and alienateth the land with a warrantie and died without any heire of his bodie and after the elder brother commeth againe and claimeth the land as heire to his father in this case by the Law the eldest brother shall be barred by the warrantie of the yonger brother Againe parteners cannot sue each other by the Law Parteners cannot sue each other by the Law if two men haue a wood ioyntly and the one selleth the wood and keepeth all the money wholly to himselfe in this case his fellow shall haue no remedie against him by the Common Law for as they when they tooke the wood ioyntly put each other in trust and were contented to occupie and deale together so the Law suffereth them to order the profits thereof The Law therefore is not compleat without the Courts of Chancerie or Equitie for the imperfection and rigour of it are qualified thereby called to be Aequum Bonum which may bee considered in this case Two strangers ioyntly did deliuer in trust vnto a widow woman a round summe of money with condition not to deliuer the same out of her hands but when they both should demand the same within a while after one of them commeth vnto her and doth assure her by good indices and probabilities that the other his companion is dead and thereupon doth intreat her to deliuer him the money which shee did not suspecting any fraud so the partie went away with the money Afterwards commeth the other who was said to be dead and demandeth the money of the woman and vnderstanding that she had paied the same vnto the other was much offended therewith and caused her to be adiourned before the Iudge The woman appearing did declare the matter according to the truth shewing how the other had deceiued her and she did wholly relie vpon the integritie and justice of the Iudge Example of Law and Equitie Here an Action of the case might haue beene brought against the woman by the law and cause her to seeke the partie that had deceiued her but the Iudge tempering the rigour of the law did giue sentence That the woman should pay the money vnto the partie so as he brought his companion with him to demaund the same according to the couenant they both iointly hauing reposed a trust in her Here I call to mind the question which no Iudge could determine A couetous Doctor at the Ciuile law would not instruct a young Student vnlesse he did pay him a great summe of money whereunto the Student did condescend conditionally that he should
Retaile 14 Because the same is most agreeable with the nature and disposition of the people and the qualitie of the countrey which by reason of the fertilitie affordeth verie conuenient meanes for the triall thereof by Iuries of twelue men the nature of the people being gentle 15 Because men are to reduce the state or issue of their cause vpon one peremptorie exception to bee tried by the verdict of twelue men whereby matters are determined with expedition 16 For that it commandeth not any thing but what is honest reasonable and possible in it selfe and all impossibilities are excluded thereby 17 For that thereof may bee made an Arte or Science in manner before declared seeing the same is finite in her Precepts according to the old Maximes or Principles whereunto euerie thing being reduced and explained as aforesaid all ambiguities and darke sentences would be taken away and the Iudges should easily giue a cleare vnderstanding thereof according to the order of Solon who made the Arropagits of Athens to be as Guardians of the Law 18 For that the triall thereof by a Iurie of twelue men vpon one point peremptorily or in certaintie is briefe and substantiall because the witnesses which are produced before them by whose euidence the state of the cause is made must be approued by the verdict of twelue men as aforesaid 19 For that the matter of Fact is distinguished from the matter of Law and is accordingly decided either by the Iurie vpon the matter of Fact or by the Iudges vpon Demurrer or otherwise vpon the matter of Law 20 For the indifferencie of the triall of controuersies and questions betweene the natiue subiects and aliens for they may haue their trialls Per medietatem linguae that is to say halfe the Iurie of strangers and the other halfe of English subiects to auoide partialitie 21 For that the Serieants and Councellors at the Law are to giue counsell and to helpe the poore which are not able to prosecute Law at their owne charges which they doe in forma pauperis by direction of the Lord Chancellor and the Lords chiefe Iustices of the Kings Bench and Common Pleas. 22 Finally the Common Law is excellent for hauing fewer faults and imperfections than any other Law being most sufficient to vphold the common-wealth in quietnesse Thus the Common Law of England hath like a Queene a Predominant power from whence proceedeth mutuall loue and sure amitie from the Prince to the subiects and from the subiects againe due obedience to the Prince in a most pleasant harmonie and concord deseruing the name of a Law receiued published and recorded without any reason to be rendred for the same as it were Lex cum Prologo wherewith Seneca found fault when he said Iubeat lex non suadeat And as the Law is deriued à ligare to bind so is the whole State of the Common-wealth bound to the head and may be made easier in practise For as the saâ—d Seneca saith Nil est quod pertinax opera diligens cura non expugnat Of the Lawes of the Kingdome of France THe Lawes of France are either written or customarie and according to this diuision the countrey is diuided Acquitanie and a part of Celtica next vnto it is called Pays de Droict escript because the Ciuile Law of the Romanes â—â— there in force Written Law the reason whereof is thought to be because the Romanes did continue long in those parts after the Frankes had made a thorough conquest of the other Belgica and the other part of Celtica is called Coustumier because for the most part they are gouerned by their auncient customes Ancient Customes which amongst them haue the force of Lawes howbeit neither the Ciuile Law nor the customarie are further in force than they are agreeable with the Edicts of the King Vnder the Law written are comprehended The Ciuile Law The Kings Edicts and Ordinances made by aduice either of the priuie Councell or of the three estates and The Arrests or Ordinances of the Courts of Parlement In the erections of their vniuersities of Law the King expresly declareth That they are not bound to the Ciuile Law neither receiue it for further vse than to draw instructions of good gouernement and reason from it as appeareth in the Charter at Orleans by Phillip le Bell Anno 1312 wherein hee sheweth that this Realme is gouerned by Custome and not by the Ciuile Law except in some Prouinces which the Kings haue permitted in some cases so to doe not as bound but as willing to continue the Law which their subiects of auncient time haue vsed So that the Ciuile Law generally is not in force but onely for direction and forme of pleading and proceeding in the order of the processe and where it is most in force the Courts of Parlement haue authoritie to construe and interprete it as they thinke good Of all the written Lawes in France the Ordinances and Edicts of the King are most in force insomuch as they are acknowledged for the onely Lawes and all other haue their life from them and are so farre forth auailable as they are strengthened by them The arrests of the Courts of Parlement are of great authoritie being pronounced in the name of the King and are as Lawes to be followed in all cases In like manner their Ordinances are to be followed onely during the time that the King prouideth not otherwise and in their owne circuit onely for they haue not authoritie to make Lawes generall and perpetuall The Customes which diuers Prouinces claime are of late yeares drawne into writings and published in print for the more easie vnderstanding of them and the auoiding of confusion so that now all the Lawes of France may be said to be written Lawes this was begun in the time of Charles the seuenth Anno 1453 and ordered also in the time of Henrie the third Anno 1579. Subsidies and jmpositions This manner of gouernement causeth subsidies and jmpositions to bee made as reuenues of the Crowne by the Kings authoritie which were at the first granted by the three estates vpon vrgent necessitie of the affaires of the Realme onely Clergie Nobility and Comâ—inaâ—le but now they are growne to be ordinarie Charles the seuenth was the first that made them ordinarie for the payment of souldiers Francis the first and Henrie the second did the like Personall subsidies are taken by the pole whereof Ecclesiasticall men Noblemen and Officers of the King Queene and children are exempted Reall or patrimoniall subsidies are leuied by lands in some prouinces as Languedoc and Prouence whereof no persons are exempted Mixt subsidies are leuied of the yeomandrie and some persons of meanes The greatest imposition is vpon Wines now fifteene soulz vpon euerie mewe And vpon Salt appointed by Philip de Valois Magazins of salt called Magazins or Gremers for salt forbidding Merchants to trafficke for it setting a rate of foure deniers vpon euerie pound of
CONSVETVDO VEL LEX MERCATORIA OR The Ancient Law-Merchant Diuided into three Parts ACCORDING TO THE Essentiall Parts of Trafficke NECESSARIE FOR ALL Statesmen Iudges Magistrates Temporall and Ciuile Lawyers Mint-men Merchants Marriners and all others negotiating in all places of the World By GERARD MALYNES Merchant Salus Populi suprema Lex esto LONDON Printed by ADAM ISLIP Anno Dom. 1622. DOCTRINA PARIT VIRTVTEM TO THE MOST HIGH AND MIGHTIE MONARCH IAMES BY THE GRACE OF GOD KING OF GREAT BRITTAINE FRANCE AND IRELAND DEFENDOR OF THE FAITH Most Dread and Gratious Soueraigne THe state of Monarchie must needes be the Supreamest thing vnder the cope of Heauen when Kings are not only Gods Lieutenants vpon earth and sit vpon his throne but also are called Gods by God himselfe in regard of their Transcendent Preheminences and Prerogatiues whereby they maintaine Religion and Iustice whichare the onely true supporters and fundamentall stayes of all Kingdomes and Common-weales so naturally vnited and conjoyned that where both of them are not properly there can be neither These high Attributes cause their Lawes to be sacred and consequently religiously to be obserued whereby Iustice is administred which is Distributiue and Commutatiue The Commutatiue part includeth Traffick which is the sole peaceable instrument to inrich kingdomes and common-weales by the meanes of Equalitie and Equitie performed especially by the Law-Merchant by reason of her stabilitie For albeit that the gouernment of the said kingdomes and common-weales doth differ one from another 1 In the making of lawes and ordinances for their owne gouernment 2 In the making of War Peace or Truce with forreine nations 3 In the prouiding of money within themselues for their safegard and defence 4 In the election of chiefe officers magistrates and 5 In the manner of the administration of Iustice wherein many mutations are incident yet the Law-Merchant hath alwaies beene found semper eadem that is constant and permanent without abrogation according to her most auncient customes concurring with the law of nations in all countries Great reuerence is due vnto Lawes at all times and hath beene in all ages Solon caused the Athenians to sweare to the obseruation of his Lawes during the time of one hundreth yeares Licurgus did imbrace a voluntarie perpetuall exile to haue his lawes obserued by the Lacedemonians vntill his return intending neuer to return and the Romans did suffer their old law of twelue tables though vniust in many points to decay by little little rather than to make a sudden alteration of it tending to the contempt of laws greater reuerence then is due to the Law-Merchant which hath proued alwaies firme and inuiolable VVise men haue obserued that happie are those Common-weales which are gouerned by Philosophers happier is that King who can wisely gouerne them but most happie is your Maiestie in whom true Philosophie doth raigne and prosper as vines do in eminent places by an inestimable treasure of an obseruing discerning and applying Princely judgement gouerning your kingdomes and dominions The consideration whereof accompanied with my bounden duetie hath emboldned me of late to dedicate vnto your sacred Maiestie a little treatise intitled The maintenance of free Trade wherein mention is made of this Volume which likewise is to be presented vnto your highnesse for it befalleth vnto me as it did to the Philosopher who by progression in wisedome endeauoring to attaine to the perfection of knowledge did perceiue that the neerer approaching thereunto seemed to him to be furthest off so my endeuours striuing to deserue some things at your royal hands seeme vnto me to merit least of all But being confident of your most gratious benignitie and superexceeding grace I do offer vnto your most judiciall eyes this Law-Merchant described according to the three essentiall parts of Trafficke with the means wherby the wealth of your Majesties kingdomes and dominions may be increased and preserued which being done by just and politike courses may properly be called the Preheminent studie of Princes grounded by Commutatio negotiativâ— vpon the rule of Equalitie and Equitie as aforesaid obserued by your High wisdome vpon the Predominant part of Trade which is the mysterie of Exchange for Moneys betweene vs and forreine Nations wherein your Highnesse doth surpasse all the Treatises and Conferences had by your noble auncestors and predecessors Kings with other Princes and States If your most excellent Maiestie therefore shall be pleased from the Zodiaque of your gratious aspect to cast some reflecting beames vpon the plaine superficies of this Law-Merchant euerie little sparke therein will become a flame and all Merchants and others shall bee enabled to draw by the Diameter of it Meridian lines of your royall fauour without which this Booke may be compared to a Sunne dyall which is no longer seruiceable than whilest the Sunne beames doe illuminate the same In hope of which superaboundant fauour I doe apostrophate this Epistle but doe multiplie my ardent praiers for your Maiesties most happie Raigne long to indure ouer vs to Gods glorie and our comforts Your Maiesties most loyall and obedient subiect GERARD MALINES TO THE COVRTEOVS RERDER 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 approued 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 VVeight and Measure which shall bee made apparant For the maintenance of Trafficke 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 Common-weales 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
plantation of people and new discoueries 234 47 Of the fishing trade 241 The Contents of the second part of Lex Mercatoria concerning Moneys compared to the Soule of Trafficke 1 OF the essence or existence of Mettalls 255 2 Of Mines Royall 259 3 Of mines and mineralls 268 4 Of the profitable working of mines 272 5 Of the nature of gold siluer and copper and of the moneys made thereof 274 6 Of the officers of mints 279 7 Of the assaies of bâ—llion and moneys 284 8 Of the weight and finenesse of moneys and their seuerall standards 291 9 Of the valuation of moneys and the proportion betweene gold and â—iluer 307 10 Of the lawes and prohibitions against vsurie 235 11 Of vsurie politicke and moneys deliuered at interest 329 12 Of intollerable Vsurie and Lombards 337 13 Of Mons pietatis or Bankes of charitie 341 14 Of the true calculation of moneys at interest 345 15 Of vsurious Contracts 349 16 Of lawfull Bargaines and Contracts 352 17 Of the vniuersall and perpetuall princely contract of commerce 354 18 Of moneys deliuered vpon liues annuities and pensions 358 19 Of the denomination and diuision of moneys of diuers countries 360 20 Of Merchants accounts kept by Debitor and Creditor 362 The contents of the third part of Lex Mercatoria concerning Exchanges for Moneys by Bills of Exchanges compared to the spirit or facultie of the Soule of Trafficke 1 OF the beginning of the Exchange for moneys by bills of Exchanges 378 2 Of the true calculation of moneys in exchange by bills according to par pro pari 382 3 Of the denomination of the imâ—ginarie moneys of all places whereupon Exchanges are made by bills of Exchanges 386 4 Of the times of paiment of moneys by exchange and the termes of art vsed therein 391 5 Of the nature of bills of Exchanges 393 6 Of the non-acceptation of bills of Exchanges and the customes obserued concerning the same 398 7 Of Notaries Intimations and Protests 401 8 Of reciprocall or double Exchanges 404 9 Of the feates of bankers performed by Exchanges 408 10 Of the true reformation of Exchanges 413 11 Of Attachments and Arrests 424 12 Of Sequestrations and Executions 428 13 Of denization and naturalization of Merchants 439 14 Of the determination of sea-faring causes 443 15 Of Arbitrators and their awards 447 16 Of the Merchants courts or office of Prior and Consulls 451 17 Of the Lawes of seuerall countries whereby the differences and controuersies of Merchants are determined 460 18 Three Paradoxes alluding to the three essentiall parts of trafficke 477 19 The due commendation of naturall Mother Wit 491 20 Of the ancient gouernment of the Staple 495 A conclusion to the juditious Reader 499 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 Called by the Grecians Synderisis and accordingly to receiue reward or punishment As for the other and better part of informing and guiding the thoughts and affections of men to a supernaturall 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 corne 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 corne wine for oyle c. betweene 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 Gen. 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 ouer 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 Gen 37.27 did the merchants Madianits in their iourney meete with the children of Iacob and then Ioseph was carried by their meanes into Egypt and sold to Potipher for the good of his father and all his family And then it was and proued to be true which experience hath confirmed that Vita ciculis in societate posita est The Law-merchant a most antient law societas autem in imperio commercio So that it 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 written by Moses was long after the customary Law of Merchants which hath so continued and beene daily augmented successiuely vpon new
Marriners and owners of Ships 9. The customes subsidies impositions tribute and tolles payed vpon all the commodities imported and exported within the dominions of all Princes 10. The manner of making of Assurances vpon goods ships the persons of men or any other things aduentured by sea or by land and the customes obserued therein betweene nation and nations 11. The keeping of Merchants accounts by Debitor and Creditor and the calculation of the diuersities of money whereby the said bookes of account are kept 12. The authoritie and proceedings of Merchants Courts or Priors and Consuls to decide their differences according to equitie in places where they are kept or any other lawes imperiall or common to some countries whereby Merchants controuersies are determined with the course of attachments and sequestrations or executions and finall determinations by arbitrators or iudiciall decrees in any Chauncery or Court of Equitie All these making the customarie law of Merchants haue neuer beene written by any Ciuilian or Phylosopher The customary Law of Merchants nor for ought I know of any author as is conuenient for Merchants whereupon I haue with Gods assistance resolued to handle the same compendiously and substantially in this booke vpon fiftie yeeres obseruation knowledge and experience And albeit that the sea lawes are comprehended therein whereby the proceedings might seem to be promiscuously handled neuerthelesse the method is followed as neere as the matter could affoord according to the said three Essentiall parts of trafficke or the three Simples of commodities Money and the Exchange of money by Bills of exchanges as hereafter may appeare And this Law of Merchants hitherto obserued in all countries ought in regard of commerce to be esteemed and held in reputation as the Law of twelue Tables was amongst the Romanes For herein you shall find euery thing built vpon the foundations of Reason and Iustice and knowing the foresaid twelue points you shall be able to please your owne minde and giue satisfaction of your sufficiencie to others For the saying is true Melius est Ciuitatem ab optima lege quam ab optimo viro gubernari It is better to gouerne a Citie by a good Law than by a good man And it is better for a man to be ruled by Reason than by his owne Reason to seeke to rule others Finally to giue satisfaction to the learned and judicious I haue abstracted the obseruations of the learned in the Ciuile Lawes vpon all the precedent points and added them vnto the following Chapters distinctly from the Customes of Merchants vsing the ordinary name of Ciuilians in generall without naming any particular Author to auoid ambiguitie and vncertaintie in the Contents of this Booke diuided into three parts according to the said three Essentiall parts of Trafficke CHAP. II. An obseruation concerning TIME ALL men of iudgement and vnderstanding doe know that there is nothing more necessary for the knowledge of Histories and diuers estates of the world than the obseruation of Times without which great obscuritie and errors will be found in the Actions of men aswell in matters of Religion as in ciuile gouernment where Merchants in regard of their Trafficke and Commerce haue the managing and disposing of the wealth of Kingdomes and Common-weales So that it behoueth them to obserue the yeeres moneths weekes Merchants are to obserue Time and dayes and sometimes the houres of their negotiation with the course of the Moone and the ebbing and flowing of waters the variation of windes and alterations of weathers for stormes at the seas and vnseasonable Times on land whereby the haruests doe faile and commodities become to be plentifull or scarce and the prices thereof deere or good cheape with many other considerations incident in the course of buying and selling of commodities and in receiuing and paying of moneys To make a definition of Time will in one respect be verie difficult if we consider that Time is inseperably conioyned with Eternitie But if we obserue the attribute of Time and doe distinguish things orderly we shall easily perceiue what Time is and make vse thereof The attributes of Time Time is the consumer of all things Tempus edax rerum Time is the discouerer of all things Veritas filia Temporis Time is vncertaine and wanteth bounds Tempora mutantur c. Times minutes past no treasure can restore Irrevocabile Tempus Time doth pierce the hardest flint Gutta cavat lapidem non vi sed sepe cadendo Time hath a salue for all extremities and yet begetteth vsurie Times office is to end the hate of foes Times glorie is to calme contending kings Time is a tutor both to good and bad and doth discouer the affections of the mind Time offers still each houre to do amisse Time breedeth griefe and heales when Art doth faile By Time and Wisdome passions are supprest In Time small wedges cleaue the hardest oakes Time is the Anchor both of Trueth and Right Time hath set downe the compasse of his course Times motions do equall the reeling Sunne Time measureth our actions Time is the best gouernour of all our councells Time on the weariest wretch bestoweth rest Both Life and Loue in Time must haue an end Many more attributes may be bestowed vpon Time But we shall find vpon due consideration that Time is but a distinction and measure of all things and betweene all things Concerning the reuolution of Time let vs obserue That euen as God the Author and Conseruer of all things in a comely and decent order The reuolution of Time hath appointed a succession and progresse of Time for accomplishment of the naturall course thereof So hath he appointed certaine Periods and Reuolutions of Time wherein things returne to the same or like estate wherein they were before As we see in the motions of the Heauens and consequently in the seasons of the yere all which are measured by Time The Sunne the Moone and the Starres to haue their particular and distinct reuolutions wherein they accomplish their courses and returne after a limitted and determinate space of Time to the places from which they did depart The Sunne compleating his course and Reuolution in 365 daies and almost sixe houres or a quarter of a day as shal be declared which is that space of Time which wee call the yeare termed Annus qui Annulus Annus quasi Annulus taking the similitude from a Ring which caused the Egyptions to make the figure thereof in their Hierogliphicks like vnto a serpent byting his owne taile The Moone by her Reuolution in the Sphere in 28 daies or thereabouts determinates vnto vs the moneths as the Sunne doth the daies and houres Saturnus the Planet maketh her Reuolution in 30 yeares Iupiter in 12. yeares Mars in two years and Venus and Mercurie in 360 daies or thereaboâ—ts The fixed starres haue also their peculiar Motions and Reuolutions The knowledge of all which is both pleasing and necessarie vnto judicious Merchants And because Time is
doth concurre and agree with the Lawes of Oleron whereof we shall intreat more hereafter Fredericke the second King of Denmarke at a Parliament holden at Coppenhauen in the yeare 1561 hath abridged as also set downe certaine Acts or Statutes for the ruling of Sea matters but for the most para agreeing also with the said Lawes of Oleron which you shall find in this Treatise set downe vpon euery occasion offered vnto me to make application of them in the Chapters following CHAP. XVIII Of the manner of Proceedings in Sea-faring Causes ALl controuersies and differences of Sea-faring Actions or Maritime Causes ought to be decided according to the Sea Lawes which tooke their beginning from Customes and obseruations and from them is the interpretation of the said Law to be taken and if any Case shall fall out that was not knowne before neither written downe and authorised as a Law then the same is to bee determined by the Iudge with the opinion of men of experience and knowledge in the said Sea-faring causes And herein is all conuenient expedition required that the matter may be summarily and briefly determined especially in case of shipwracke wherein delayes or protractions in Law is a crueltie to vex such afflicted persons Therefore to preuent appellations present execution and restitution of goods is vsed in causes of spoyle vpon caution first found by the spoyled to satisfie the condemnation to the Iudge if there bee iust cause found of appellation Witnesses in causes Maritime and to this end also it is permitted that witnesses of the same Ship may be examined although the aduerse partie bee not called thereunto Merchants and Marriners sayling together in one Ship may beare witnesse each to other and Marriners against the Master when they are free and out of his command The plaintife is to find suerties to pay costs and damages if he doe faile in his proofe and the defendant is to be put in caution to satisfie the sentence Iudicio cisti iudicatum solui If the defendant doe stand out or commit a comtempt by not appearing for to defend himselfe or his Ship or things challenged the Iudge of the Admiraltie may after foure defaults entred deliuer the possession of the said Ship or any other thing or part thereof to the plaintife putting in sureties for one yeare and a day and if the partie appeare not within that time then the propertie is finally adiudged to the plaintife And if he doe appeare within the time offering to pay the expences and putting in caution to obey and performe the definitiue sentence he shall be admitted But this caution or suerties are lyable absolutely for all from the beginning and cannot be discharged as a Baile may be at the common Law Difference betweene caution in the Admiraltie and baile at the Common Law of England bringing in the partie at conuenient time Summons and Citations are not needfull where the ship or goods in question are forthcomming but may be done in the same place where it lyeth or the goods are found If any man be arrested or troubled for the like matters he is presently to be discharged vpon suerties and especially Marriners because they shall not be hindered of their voyage which he may doe with so much goods or the value thereof as he hath within shipboord at the Iudges discretion for it is intended that otherwise trafficke and commerce is interrupted CAHP. XIX Of Buying and Selling of Commodities by Contracts THE buying and selling of commodities by contracts may bee distinguished three manner of wayes namely Regall Notariall and Verball The Regall contracts are made betweene Kings and Princes and Merchants which caused the Kings of Portugall to be called Royall Merchants For whereas the Venetians had the trade for Spices and other commodities of the East Indies Regall contracts called by the Ciuilians Solemne the Portugalls vpon the discouerie of those parts by Nauigation did bereaue the Venetians of that trade as by the reuolutions of time other Nations haue almost compassed that trade of Spices and taken the same from the Portugalls The Kings of Portugall had alwayes the one moitie of the Pepper by way of contract and for that they would contract againe with the Germaines or other principall Merchants of other Nations and of their owne to deliuer the same vpon a price agreed vpon the arriuall of the Carrackes at Lixborne according vnto which it was sold againe with reputation to other Merchants and dispersed into diuers countries and so was it also done for Cloues and Mace and sometimes for Indico and the payments were made by assignation in the Bankes of Madrill Lyons and Bizanson and sometimes at Florence and other places hereupon was the Contraction-house at Lixborne erected and named accordingly where the said Spices and commodities are brought and sold againe Such are the contracts which the King of Spaine doth make with Merchants for the prouision of Corne for his townes in Africa vpon the coasts of Barbarie as Ceuta Mosegam Tangere and other places the paiment whereof hath beene made againe by Pepper vpon some especiall contract and the Merchants haue thereupon also made other contracts with Merchants of the Low-countries to deliuer them that Pepper at Amsterdam and to take Corne in paiment But the case is since altered by the incorporating of the East-India trade Such were the contracts made by the French king Henrie the third with the great Merchants of Italie called Le graund partie for Salt which they by authoritie did ingrosse for the king and brought also from other countries by sole permission causing euerie household in all France to take a proportion yearely or to pay for it whether they had occasion to vse it or not which was an Italian inuention and for this they paied by contract vnto the king six hundred thousand pounds sterling being two millions of French Crownes yearely Such were the contracts which Queene Elizabeth of blessed memorie made with Merchants of London for the prouision of victuals and apparrell for the souldiours in Ireland during the late warres with the Earle Tirone which did amount to verie great summes of money insomuch that the seuerall contracts for apparrell came to ninetie sixe thousand suits of apparrell as I haue seene by the Records and Accounts extant in his maiesties Court of Exchequer All these and such like contracts are made by commissions granted for that purpose to some great officers of the kingdome who haue thereby authoritie to contract for the same with Merchants or others Notariall contracts haue partly dependance vpon the same Notariall contracts called Publicke for when those Merchants which haue contracted with Kings or Princes are to prouide sodenly those things which they haue contracted for or to dispose of the commodities which they haue bought or ingrossed into their hands Then they deale with other Merchants either to prouide them of the said commodities or to sell them such as they haue bought
also prouided by the said Statute That whosoeuer shall bee found to haue voluntarily yeelded to any arrest or his bodie to prison and so remaineth in prison for and during the time of sixe moneths thinking by that imprisonment to free his goods and to deceiue his creditors against him may the said Commission bee sued forth and executed accordingly for hee is to bee taken for a Bankerupt according to the said Statute and if the partie bee at libertie against whom the said Statute of Bankerupt is taken out the said Commissioners may if they see cause commit him to prison and giue him some allowance for his maintenance And of all their proceedings there is a Register appointed by his Maiesties Letters Patents vnder the Great Seale of England to record the same vntill the Lord Chanceller doe dissolue the said Commission by a Supersedeas Definition of the word Decoctor The Ciuilians are copious in the description of this Argument and haue attributed vnto this kind of people the name of Decoctor which is deriued from the word Decoquâ— as it were to consume the substance of things by decrease and euaporation of boyling ouer the fire otherwise called disturbers or consumers of other mens goods in the course of trafficke Neuerthelesse they doe obserue great distinctions betweene these persons as in the Treatise De Decoctoribus made by Benuenuto Straccha appeareth And the Definition of Bankerupts is three manner of waies distinguished First When a man becommeth insoluent by losing his goods and other mens by fortune mischance and casualtie which man is not taken to be infamous by the Law indeauouring to make satisfaction as he can Secondly When a man by wasting spoyling and viciously giuen consumeth his owne and other mens goods and hee by the Law is infamous Thirdly When a man is decayed partly by wasting and spoyling of his owne and other mens goods and partly by misfortune and accidents and this man is taken to be infamous if he be vicious Hereunto I may adde the fourth and most vile person who inriching himselfe with other mens goods breaketh without iust cause and onely of purpose to deceiue men according to the aforesaid example of Roan Albeit I am of opinion that the said Ciuilians haue left them out of the number to bee criminally punished as theeues to the Common-wealth by the magistrats or princes authoritie as the Banker of Florence was who breaking for many millions of ducats made a suddaine and deceitfull composition with his creditors for the one halfe and did pay them in readie money which being vnderstood by the great Duke hee caused his processe to bee made instantly and thereupon hee was executed also accordingly which was good iustice and is to be done by the Magistrates and not by the creditors Punishments of Bankrupts As of late yeares one of Genoa in Italy did vnto a debtor of his whom he knew went about to deceiue him for great summes of money whereupon hee caused a Chayre to be made and called the partie to his house and intreated him to sit therein which being made with certaine engines did suddenly so gripe and claspe in his said debtor that hee was compelled to pay him or it might haue cost him his life True it is that in Russia a man hath leaue to beat or to haue his debtor beaten vpon the hinder parts of the legs if he cannot pay and therewith is he discharged which is not so cruell as to keepe him alwayes in prison and make him to indure a lingering death wherein the vndoing of wiues and children are made partakers vniustly Concerning fraudulent dealers the Law is That by making Cession they shall not bee relieued and may bee apprehended in the Church whereas a free-man cannot bee arrested or taken in the Church but may be vnto him a place of refuge If hee bee found a fraudulent man by his bookes of account then any bargaine or sale made two or three dayes before his breaking by goods sold good cheape may bee recalled and auoyded and in like manner if he pay one man after his breaking the same may be taken to be done in fraud of all the other creditors and may be recalled for the generalitie So goods bought by him before breaking if they be found in esse may be claimed by the Seller to his particular vse and payment againe All coniectures of fraud may bee augmented and aggrauated against the fraudulent man according to the saying Semel inuentum decies factum If any man do breake in partnership the partnership is ipso facto dissolued by law but the credit of the other remaineth paying the debts of the partnership Also any commission giuen by him for the partnership is void instantly howbeit if a Factor by ignorance of his breaking haue caused his commission to be followed that which is done doth bind the Master and shall excuse the Factor Suspitious Debtors A debtor suspected by others may be touched before moneys be due and the creditor may attach some of his goods or pawns which is the cause that the writ of Latitat out of the Kings Bench court may be serued vpon them to find sureties for their apparance at the returne of the writ before the Iudges of the said court But the lawes in diuers countries do verie much differ in the proceedings and execution of these fraudulent men A question for suretiship Here ariseth a question Whether a Suretie can pretend to be discharged if the Creditors haue made or agreed with the Principal for a longer time of payment and the Principall breaketh The answer is That if he knew of the new agreement of the said partie for a longer time he is liable thereunto otherwise being bound as a Suretie for a time limited he ought to be cleered at that time or to make suit or demand to haue his satisfaction of the Principall as also of the Suretie which being neglected doth in equitie discharge the said Suretie the reason is because if the Suretie do break at or before the time of the payment the Creditor may demaund another Suretie in that mans place which is broken wherein the law is verie indifferent And this is the cause that diuers Lord Chauncellours of England for moneys taken vp at interest vpon bonds were of opinion That when the said moneys are continued or prolonged at interest the bonds should be renewed and the counter-bonds also and not to leaue the old bonds for many yeares to be vncancelled for it doth oftentimes happen vpon occasion of absence of some of the parties that a new bond is sometimes sealed and the old not taken in which breedeth contention for the new bond being made the old is void and yet may be vncancelled and also put in suit by some executor or administrator ignorant of the other new bond taken for the same and paied long before Albeit herein it seemeth there is more reason not to make new bonds howsoeuer diligent
for in the execution consisteth the life of all lawes and the perfecting of mens actions which aime at some certaine end For it hath beene well obserued by some that the actions of a wise man and a foole differ in this Differences betweene the actions of a wise man and a foole That the wise haue a regard to the end in what they vndertake and the foole without consideration permitteth the end to manifest in selfe whereof ignorant men iudge according to the euent although the enterprise were neuer so aduisedly taken in hand and as if the successe did not depend vpon the diuine power to be guided by his prouidence The determination of all causes and controuersies especially of Merchants affaires is done and executed as followeth 1 Concerning Sea-faring causes which are determined according to the sea-lawes alreadie written and in the premisses abridged Foure meaneâ— to end controuersies wee shall in this chapter briefely declare the manner of it 2 The second meane to end controuersies is by Arbitrators chosen and elected by both parties to end their differences with breuitie and expedition to auoid suits in law which vnto Merchants are inconuenient 3 The third meane is the authoritie of Prior and Consulls of Merchants for the Merchants Courts according to the priuiledges which princes haue granted vnto them for the aduancement of their trafficke and maintenance of their Customes whereof most Iudges are either ignorant or contented to determine matters accordingly 4 The fourth and last meane to determine questions and differences is by the ciuile or imperiall law or the common law of the kingdome or jurisdiction of the seuerall dominions of princes according to the fundamentall lawes of them wherein we are especially to obserue That the Law-Merchant is predominant and ouerruling for all nation do frame and direct their iudgement thereafter giuing place to the antiquitie of Merchants Customes which maketh properly their law now by me methodically described in this booke which alloweth to euerie man and nation his proper right and due and hureth no man Three precepts of all Lawes according to the three generall precepts of all lawes set downe by Caius and after him by Tribonianus namely Honeste viuere Alterum non laedere Ius suum cuique tribuere whereof the second trieth and ruleth the two other whereof more hereafter Touching the first meane to determine Sea-faring causes it shall not be needfull to speake much of the definition of an Admirall at the seas An Admirall called by the Romanes Magnus Dux Classis and Drungarius magnus or Admiratus from Amiras a word vsed by the Spaniard to See or Adelantado as going before the rest of ships also by the Italians L'amiraglio or Admiral in French because his calling is known to all But let vs obserue that for the readier obedience to the great Admiralls of the seas it is agreed by common consent of all nations that they should haue in regard of their power ouer the liues of men a soueraigne iurisdiction onely proper to themselues The Admiralls Court. in all Sea-faring causes and debates ciuile and criminall so that no other Iudge should meddle therewith and the Iudge of the court being his deputie iudicially to decide them by the Aduocats and other Assistants for the better and iust proceeding of the said court Also the Admirals clerk is veric necessarie and herein it hath been thought conuenient that all Proctors or Attorn'eys of that court should take their oath before they be heard Aduâ—â—ates and Proctors c. that they shall do nothing maliciously but as soone as they find their action to be vnrighteous in any part of the proces they are to tell it to their Clyent and if the Clyent will insist then to shew it to the Iudge The Proctors oath also that they shall not reueale their Clyents secrets to the aduersarie and lastly that they shall not propound delay nor be peremptorie against their consciences and the like oath is to be taken of other officers at their admission The causes to be determined in the Admiraltie Court do extend verie far and many are otherwise decreed or determined especially by the Merchants Courts Causes to be determined by the Admiralty and office of Assurances whereas heretofore the Iudges of the Admiraltie did minister justice vpon all complaints contracts offences pleas exchanges assurances debts accounts charterparties couenants and all other writings concerning lading and vnlading of ships fraights hires moneys lent vpon hazard of the Sea and all other seafaring businesses done on the Sea or beyond the Sea with the acknowledging of writs and appeales from other Iudges letters of reprizall or mart to arrest and put in execution to inquire within and without liberties by the oathes of twelue men vpon all offences and trespasses and namely First touching the reuealers of the King and Countrey their secrets ouer Sea especially in time of warre Against Pirats their assisters or abettors Outreaders or Receiuers Against fortefiers of the Kings enemies and harmers of friends Against the breakers of the Admirals arrests and attachments Against goods forbidden and merchandise not Customed and yet transported Against the resisters of the Admiralls Officers in executing his precepts Against Forestallers Regraters and dearthers of corne and victualls c. Finally against transporters of Traitors Rebells manifest transgressors and fugitiues from justice or casters of ballast sand or any other thing in harbours or channells extortioners by ships and boat-wrights for taking away the boigh from the anchor cutters of cables or towes false weights and measures by sea shedders of other mens blood on sea or in any port or lamed by misdemeanour Customers and Water-bailifes taking more custome or anchorage than they ought for absenting from musterings in time of warre for all transgressions committed by sea-men ferry-men water-men fishers pilots ship-wrights prest men containing the Admiralls authoritie and to amerce them for his owne benefit the goods of pirats felons capitall offendors their receiuers assisters attainted conuicted condemned and outlawed waife and stray goods wrecke on the seas and cast goods Deodando that is to say the thing whether boat or ship c. that caused the death of a man or whereby a man did perish Beacons to giue light on the seas shares lawfull prises or goods of the enemie or Lagon Floatson and Ietson before declared with the anchorages beaconages swine sturgeon and whales cast on shoare all fish of extraordinarie greatnes called Regall of all these the Admirall hath authoritie to deale correct and punish according to their deserts and the lawes prouided for the same by statutes enacted and all other lawes and meanes before declared The Clerke of the Admirall ought to be very skilfull and honest and is to haue diuers Registers for congees safe-conducts pasports sea-briefes without which no ship in time of war is to passe The Registers of the Clerke nor yet in far voyages in time of
peace another Register for the true knowledge of captaines and masters of ships and their returne a third Register for the names of Merchants passengers and owners which the master ought to deliuer vp to haue them inrolled and all pilots names although recorded in the office called the Trinitie house ought to be set downe and knowne to the Admirals clerke also all moneys deliuered vpon hazzard or bottomarie as is heretofore declared called foenus nauticum or pecunia traiectitia Now the manner of proceeding in seafaring causes The manner of proceeding is according to the lawes aforesaid or the customes written and if the debate or cause cannot be determined thereby the last refuge is according to the opinion of skilfull and vpright men in their owne trading but all this must be done as the law saieth Velo leuato so briefely and summarily without the solemnitie of other ordinarie courts and iudgements onely looking to God and the trueth and all complaints to be ended instantly especially of ship-wrecke for it were a crueltie to vexe so miserable persons with tedious proceedings whereupon in this case the Iudges may proceede to execution vpon euerie interlocutorie and make restitution presently vpon good caution to be giuen to satisfie the appellation if any be made And herein there is a further priuiledge to them for whereas by the common rules of the law where no litiscontestation is past or as we say bill and answere depending no witnesse should be receiued nisi ad eternam rei memoriam Extraordinary priuiledge ac aduersario ad id citato yet in shipwrecke as a case to bee commiserated any of the ship-broken-men may come to the Iudge of that part where the wrecke happens and by witnesse brought with him may make proofe And as this is an extraordinarie priuiledge euen so may merchants ordinarily and masters sailing together beare witnesse each one to other of their societie within the ship if they haue neither to lose or gaine therby and especially mariners for or against the master when the voiage is ended Ordinarie priuiledge and they free of his commandement For by the consent of the doctors when trueth cannot be otherwise tried then vnable persons may be heard And to the end that trade be not interrupted by vexation of quarrelsome persons it is prouided that not onely the common caution Iudicio sisti iudicatum solui be kept on the part of the defendant but also that the plaintife or pursuer shall find caution de expensis soluendis if he faile in proofe Likewise if the partie do not appeare to defend himselfe or his ship after three citations or foure at the most called quatuor defaltae hee is taken for contemptuous the Iudge may ordaine the Marshall or Officer to put the plaintife in possession by his sentence or Primum Decretum Prouided that if the partie appeare within the yeare and pay the costs and expences he shall be admitted and heard vpon the proprietie and in like manner if any attachment be made vpon the ship or goods it shall vpon caution giuen summarily be heard and determined for this law of Admiraltie intendeth nothing but expedition for the better aduancement of Trafficke and Commerce * ⎠* CHAP. XV. Of Arbitrators and their Awards THE second meane or rather ordinarie course to end the questions and controuersies arising betweene Merchants is by way of Arbitrement when both parties do◠make choise of honest men to end their causes which is voluntarie and in their owne power and therefore called Arbitrium or free will whence the name Arbitrator is deriued and these men by some called Good men giue their judgements by awards according to Equitie and Conscience obseruing the Custome of Merchants and ought to be void of all partialitie or affection more nor lesse to the one than to the other hauing onely care that right may take place according to the truth and that the difference may bee ended with breuitie and expedition insomuch that he may not be called an Arbitrator who to please his friend maketh delayes and propagateth their differences but he is rather a disturber and an enemie to Iustice and Truth and therefore the manner to elect Arbitrators The manner to choose Arbitrators is worthy the obseruation Some are contented to name foure or sixe persons on either side in writing and referre the naming or electing of foure out of them by reciprocall proceeding when one named the first person another the second and then againe the third and the other the fourth person Others putting seuerall names in a paper are contented that a meere stranger shall vpon the backside of the paper pricke their names with a pinne or that as they are numbred the dyce shall bee cast vpon them accordingly by the number Others put their names in seuerall papers and cause them to bee mingled and drawne by way of lot by an indifferent person which course may be thought allowable as we haue noted in the Chapter of the diuiding of commodities by lots Others will doe the same by nomination of them and drawing of the longest or shortest straw or by any other extraordinarie meanes of pointing numbring or describing all tending to one end to haue indifferencie and that partialitie may be auoided by all meanes Consideration must be had also whether two three or all foure shall haue authoritie to determine the cause Awards are to be giuen vnder hands and seales if they can to bee done within a limitted time wherein their award is to be deliuered vp and whether they may name an vmpire or not all which must be declared in the Bond of Compromise vnlesse the question be onely vpon one point to be determined wherein no Bond is needfull but by way of assumpsit by deliuering a peece of coyne each to other and thereby binding themselues reciprocally vpon the penaltie of a summe of money to stand to the iudgement it is ended And the said penaltie or forfeiture by assumpsit may be recouered by Law and the Merchants Courts as well as the forfeitures vpon Bonds if the partie doe not performe the sentence or award if the award be lawfully made Fiue points to be obserued in awards to which end Arbitrators are to take notice of the fiue points following which by the Law doe make void all awards 1 That the award be giuen vp in writing within the time limited by the bonds of Compromise made betweene the parties 2 That there bee limited or appointed by the award some reciprocall act to be done by each partie to other which the Law requireth to be Quid pro qu◠albeit neuer so small 3 That they make a finall end and doe determine vpon all the points or differences produced before them by specification or otherwise if they be required so to doe and authorised thereunto 4 That they doe not award any of the parties to doe or performe any vnlawfull act or thing prohibited and
against the Law 5 That they doe not award any thing whereby any matter alreadie determined by decree in Chancerie or judgement at the Common Law or any sentence judicially giuen in the cause be infringed or medled withall These points ought to be obserued for the reasons following For touching the first if the award be not deliuered vp in writing vnder the Arbitrators hands and seales if the condition of the Bond doe so limit the same then haue they no authoritie to doe the same after the time which is limited vnto them by the consent of the parties For the second point reason requireth in all humane actions a reciprocall act from one man to another by deed of performance called Quid pro quo The reason of Quid pro quo although it were a mans sallarie for his paines which in some cases causeth men to award that each partie shall pay so much to the Scriuener or Notarie for writing the said award but this is no collaterall act betweene the parties neither is it any matter compromitted to the Arbitrators It is therefore better to expresse and award that each partie shall seale and deliuer either generall acquittances each to other or with some exceptions therein as the award will lead them The third point is considerable where the differences are by both parties or either of them deliuered in Articles in writing to the arbitrators for herein it is not sufficient to say That the said arbitrators shall haue power and authoritie to determine all questions differences doubts controuersies matters of accounts reckonings or any other vsuall or generall words from the beginning of the world vntill the date of the bond but they must giue their award vpon euerie particular Article and vpon all of them The fourth point That the Arbitrators doe not award any thing which is vnlawfull is to be vnderstood of all things which are euill in themselues called Malum in se and of things called euill because they are vpon some respects and considerations prohibited and therefore termed Malum prohibitum as the wearing of hats at all times transportation of corne eating of flesh in Lent and the like wherein there is a further consideration which requireth a distinction As for example an Arbitrator or many Arbitrators doe award A notable good distinction in Law that a summe of money shall be payed vnto such a man during all the time he is vnmarried is good in Law but to bind the partie by award that he shall not marrie because he should enioy the money still is vnlawfull and void by the Law The fifth point is of verie great consequence to bind the actions of men to the obedience of the Law whereunto such reuerence is due that decrees judgements and sentences of judiciall Courts of Record are alwayes of a higher nature than Arbitrators awards Neuerthelesse in many doubtful questions the Ciuilians themselues after long and curious debates doe assigne them to be determined by Arbitrators hauing skill and knowledge of the Customes of Merchants which alwaies doe intend expedition and that is the cause wherefore an vmpire chosen vpon arbitrable matters An Vmpire hath absolute authoritie hath an absolute authoritie to himselfe giuen to end the matter alone without hearing the Arbitrators if hee will for albeit this is not without some danger and that the ending of Arbitrators is to bee preferred yet breuitie and expedition of justice in Merchants affaires is so much regarded that by all meanes the same ought to be furthered Hence it proceeded that the Merchants Courts gouerned by Prior and Consulls whereof we intreat in the next Chapter haue authoritie to reforme or confirme the sentence of Arbitrators Arbitrators award subiect to the Prior and Consulls when Merchants will appeale their arbitrement before them rather than to goe to Law and with this prouiso That the appellation of the sentence of the said Arbitrators shall not be receiued by the said Prior and Consulls before the arbitrement bee performed by the partie that doth appeale conditionally that restitution shal be made if there be cause vpon the end of the processe And the said Prior and Consulls are to note that no Merchant nor other being of their jurisdiction can transport or make ouer their interest to any person priuiledged and not subiect to the said jurisdiction be it by gift sale or exchange or by any other meanes to the end thereby to auoid their authoritie vpon paine that the same transports or possessings shall bee of no effect and the losse of their right and cause And all notaries who shall receiue any such transports shall be punished by the said Prior and Consulls in a penaltie arbitrable and further shall be condemned to pay vnto the aduerse partie all his costs and charges which hee hath sustained by meanes thereof Reference of causes to Merchants And to the end this expedition may by all meanes be furthered the said Prior and Consulls may distribute and referre causes vnto the most ancient and expert Merchants in the matters in question to make a true report of the state of the cause according to the allegations and proofe of the parties without any sallarie to bee giuen to the said Merchants howbeit in Italy some reward is giuen vpon the Ricorse of Merchants These Merchants are to take the aduice of the Aduocate Councell and Atturney of the said Prior and Consulls in matters difficult the better to discerne the right of the cause to make their report more compleat for the sooner ending of it according to reason and right by the true affirmations of the Merchants and not by fained subtile and craftie writings which oftentimes do darken the truth vnder the colour of faire phrases declared in them causing protraction and delayes Difference betweene ludges of the Law and Arbitrators Marcus Tullius Cicero hath truely set downe the difference which is betweene Iudges of the Law and Arbiâ—rators inclining to the most easie and lesse chargeable course saying The one is seruile the other is noble the one is bound to the Law and the other is not the one doth consist in fact the other in justice the one is proper to the Magistrates the other is reserued to the Law the one is written in the Law the other is without the Law the one is in the power and the other is without the power of Magistrates howbeit it is not forbidden but all Iustices of Peace may compound differences and their authoritie doth inable them better thereunto And in this regard it is said That an vmpire doth represent the Lord Chancellors authoritie because that the Commissioners report of the Masters and others of the Chancerie or of Merchants is the ground worke whereupon the Lord Chancellor doth deliuer his sentence and maketh vp his decrees And the said Commissioners haue a further authoritie and power than Arbitrators Difference betweene Commissioners and Arbitrators for they may examine witnesses vpon oth vpon