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
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
principles which are taken from the Law of God and Nature or Reason are many more than those which are of man and giuen by the absolute discretion of the Iudge And concerning the prudence of the Law which holdeth this Maxime That it is better to suffer a mischiefe A Maxime in Law than an inconuenience attributing the word mischiefe vnto one or some few men and the word inconuenience to all persons or the common-wealth in generall And here let vs obserue That Of the Common Law of England there may bee made an Art or Science Consider we that Ars est causarum consideratio Definition of Art ex finibus assumptis Art is the consideration of causes from certaine ends propounded according to which definition an orderly consideration must be taken of the causes which cannot be without Art For Art maketh nothing but of things alreadie made putting a dictinct determination which is done with a reformed reason properly called Logicke which as it is the instrument of all Sciences so is it also the instrument of the Law and although the Law be now infinite in Practise yet is the same finite in Precepts So that as In infinitis omnia concurrunt The Law being finite in her principles may easily be compiled or incorporated and experience teacheth that it is easier to vnderstand many principles well put together than to put many principles well together whereby a man may vnderstand the Law hearing the same deliuered by a Lawyer yet this may be done by wisemen For we haue our finite originalls or elements acts persons things and their adiuncts and concerning them finite reasons of which we doe compound cases infinite yet are all those cases decided according to the finite reasons of the finite elements So hath the Phisitian finite simples though hee doe make infinite compounds yet are they all proued good or bad to that whereunto they are prepared by reasons drawne from the finite simples Now by the elements of the Law Elements of the Law we must vnderstand matter and forme not as in things naturall and compound but Modo forma as they speake so in all cases there is matter of Law matter of Fact or both and the twelue men or jurors are onely ordained to trie the matter of Fact for they are ignorant in the Law so that if the question be of the Law that is if both parties doe agree vpon the Fact and each doe claime that by Law he ought to haue it and will still in that sort maintaine their right then it is called a Demurrer in Law Demurrer in Law which is determined by the Iudges So that if all cases were reduced vnder these few titles namely Pleas of the Crowne of Right or Title of Land of Debt of Trespasse of Account of Trouer and of the Case Then might the matter of Fact bee brought nakedly before the jurie distinguished from the matter of the Law For all Cases are either criminall or ciuile Cases criminall reall and personall or criminall reall and personall for life honour and goods or lands and it is an easie matter to describe the nature of these and the like actions the Law being singular in her distinctions which would diminish the practises thereupon whereas by the Ciuile Law the Fact is first examined by witnesses Originalls by the Ciuile law indices torments and the like probations to find the truth thereof and that done the aduocats doe dispute of the Law to make of it what they can saying Ex facto ius oritur which is long and tedious The pleading of generall Issues with addition of the words Modo forma maketh the matter difficult many times when the jurie conceiueth that this meaneth some matter of Law when it is onely matter of Fact the jurors therefore are principally to looke whether the Issue and Euidence doe concurre which they ought to follow True it is there is sometimes matter of Law which altereth the Case when there must be proued a lawfull consideration of Quid pro quo Nudum pactum what it is otherwise it is Nudum Pactum ex quo non oritur Actio wherefore I haue seene some Pleas plainely distinguishing the matter so that the jurie might perceiue the naked Issue of the Fact before them in question with all the circumstances which is sometimes done by way of Replication There is a Maxime or ground of the Law of England That if the defendant or tenant in any action plead a plea that amounteth not to the generall Issue that hee shall bee compelled to take the generall Issue The pleading of generall Issues and if he will not he shall be condemned for lacke of answere The generall Issue in Assize is That hee that is named the disseisor hath done no wrong nor no disseisin and in a Writ of Entrie in the nature of Assize the generall Issue is That he disseised him not and in an action of Trespasse That he is not guiltie and so euerie action hath his generall Issue assigned by the Law and the partie must of necessitie either take the generall Issue or plead some plea in the abatement of the Writ and the cause why this is done is because the matter of Law should not bee put to the triall of the jurie of twelue men M r. Fortescue saith That the triall of twelue men is more indifferent than the triall before a Iudge because it is an easie matter to find out two men among a number of men that may be of the parties acquaintance so void of charitie and conscience which for dread loue or profit will be readie to gainsay all truth and to this purpose he alleageth the example of the two witnesses against Susanna according to which president the witnesses are to bee examined asunder and not in the hearing of one another as is now accustomed And if their oath touching the matter of Fact were recorded briefly the Euidences would be more certaine for witnesses would be more carefull vpon which the oath of the Iurie dependeth If the action bee locall of lands or houses Proceedingâ— of Iurors the Iurie is impannelled of men from as neere as may be to that Countie where the thing in controuersie lyeth neuerthelesse the defendant may take exception against some of the Iurors albeit for little or no cause and then others are taken in place for there are twentie fore men warned but twelue is sufficient vnlesse it be vpon an Action Reall where twentie foure must be empannelled And the oath giuen to Iurors is That they shall deale iustly and truely betweene partie and partie but the witnesses are to speake the truth the whole truth and nothing but the truth and so they take their oath And to the end the proceedings in Law should not be hindred therefore if the Iurors fall out not to be full in number Decem Tales dâ— circumstantibus then the Sherifes may take Decem Tales de
haue the first cause he tooke in hand to go on his side whereupon it fell out that the cause betweene him and the said Doctor was the first cause and so there could be no proceeding therein the Student pleading the condition in barre The court of Chauncerie is properly called a court of Conscience because it reasoneth on the part of the complainant by argument taken from the Law of Nature before mentioned Quod tibi fieri non vis alteri ne feceris for in the Chancerie euerie man is able by light of nature to foresee the end of his cause and to giue himselfe a reason thereof and is therefore termed a Cause whereas at the common-common-law the clyents matter is termed a Case Difference betweene Cause and Case according to the word Casus which is accedentall for the partie doth hardly know a reason why it is by law adiudged with or against him The Chauncerie therefore vpon Bill and Answere betweene the complainant and defendaunt graunteth an Iniunction to stay the proceeding in the courts of common-law vntill the equitie of the cause be examined and if there be no matter of equitie found Iniunction of the Chancerie then the cause is dismissed to the law againe with costs to the partie Merchants causes are properly to be determined by the Chauncerie and ought to be done with great expedition but it falleth out otherwise because they are by commissions commonly referred to Merchants to make report of the state thereof vnto the Lord Chauncellor â—or the customes of Merchants are preserued chiefely by the said court and aboue all things Merchants affaires in controuersie ought with all breuitie to bee determined to auoid interruption of trafficke which is the cause Staple Lawes 27. E. 3. that the Maior of the Staple is authorised by seuerall Acts of Parleament to end the same and detaine the same before him without any dismission at the common-law which sheweth the necessarinesse of the Office of Prior and Consulls before mentioned The rather for that the triall of an Action of Account at the common-law is tedious There are fiue manner of persons accountable by the law namely a Steward or Bailife a Factor or Seruant or a Receiuer Vpon an Action of Accompt the generall issue to be pleaded thereunto is Ne vncques Receiuer pour account rendre The triall of an Action of Account by law this is first tried by a Iurie and if the partie be conuicted and found accountable then the law doth appoint Auditors to take the account by a commission directed out of the court to Merchants and others according to the nature of the cause whereunto two Atturneys of the court are ioined And when they haue taken the account and find wherein the differences do consist then they are to certifie all their proceedings into the court and the accountant must make issuable answeres to be pleaded whereupon eight ten twelue or more issues shall bee made and then a second Iurie is called to trie all these seuerall issues vpon peremptorie points and so vpon euerie issue there is giuen a particular verdict and sometimes an especiall verdict which is to be determined by the court againe All these long proceedings make long records subiect to many errors and because all these seuerall issues are tried by one Iurie and vpon one record together with the former proceedings whereby the other Iurie found the partie accountable if in any or in the whole materiall error be found then all is ouerthrowne and the parties are to begin againe de nouo And it may fall out that then they will ioine other issues and so run into a Labirinth so that matters of account are properly to be determined of the Chauncerie and it were to be wished that therein more expedition were vsed according to the lawes of Arragon which concur with the course of the said court as we are now to declare leauing all other cases triable by the common-law according to their proper natures as the triall of an Action Reall which is done with solemnitie and the like to abreuiate things Of the Lawes of the Kingdome of Arragon THe Lawes of Arragon being peculiar to that kingdome haue especiall daies or times limited to euerie particular proceedings of the processe whereby the same is diuided into tenne as it were termes which haue euerie one their proper obseruations which the complainant must obserue and prosecute accordingly with expedition as followeth 1 When the partie complainant calleth the defendant 2 When they do appeare before the Iudge 3 The defendant may alledge certaine exceptions 4 Due answere is made to the complainants bill 5 The examinations of the parties and their proceedings 6 Witnesses are produced examined and publication had of their depositions 7 The parties doe reason of the depositions and the matter is brought to hearing 8 When the Iudge giueth sentence or iudgement 9 When execution is had vpon the sentence or the partie appealeth 10 When the cause departeth out of that Iudges power before a higher authoritie And all this is commonly done in foure moneths Obseruations of the proceedings of the law of Arragon with the obseruations by the law required namely the considerations incident which are worthie to be noted to preuent vniust dealings 1 Touching the first time the Iudge taketh not any notice therof for the proces is granted of course vnles it appeare that the complainant hath beene the slaue of the defendant or the sonne doe commence a suit against the father or the seruant against his master wherin vpon good consideration licence must be had of the Iudge 2 The second That they must appeare before the Iudge at three seuerall times of tenne daies or thirtie daies at any one time which is peremptorie after which there lyeth a contempt against the partie not appearing during which time the Iudge doth proceed according to the nature of the action and the Maximes of the Law which are compiled together to iudge by and serue him for his direction but in extraordinarie causes his conscience leadeth him 3 The third time touching exceptions is not only betweene partie and partie but also against the Iudge for insufficiencie of authoritie giuen him if the cause so require 4 The fourth time three things are to be obserued vpon the defendants answere 1 Whether he denyed all or did confesse part or all 2 Whether it be requisit that the Iudge iudicially heare the cause or else according to the defendants answer and confession iudge him to pay or satisfie the matter within nine daies 3 That after the contestation of the suit there be no matter of any dilatorie exceptions alledged to hinder the proceedings but rather peremptorie exceptions to bring the matter to a definatiue sentence 5 The fifth time foure things are to be obserued namely 1 The complainant must sweare that he is perswaded that he demandeth a iust and right demand and the defendant likewise that he defendeth his right 2 That
they shall speake truth to that which shall be demanded of them 3 That they shall not require without iust cause any time of prolongation 4 That they haue not nor wil attempt to corrupt witnesses 6 The sixth time vpon the contestation and interlocutorie sentence you must obserue nine things 1 That the witnesses be presented in presence of the partie against whom they are produced 2 That they bee freemen and honest and not hired nor corrupted 3 That they bee sworne and the producent payeth his charges 4 You may inquire of the partie that doth produce the witnesses as also of the witnesses by certaine articles what may appertaine to the cause in regard of their admittance for to bee sworne because their deposition is the ground of the matter 5 That the plaintife hauing had three seuerall times to produce his witnesses shall not haue any other time to examine any more vnlesse he do sweare that he knoweth not what the former witnesses haue deposed and the Iudge do assent thereunto 6 If the witnesses haue declared any thing obscurely they may declare the same more plainely if the Iudge do desire the same at the intreatie of the partie according as he shall direct 7 After publication of the witnesses depositions there may not any other witnesses be deposed vpon the said interrogatories or any matter touching the same 8 That the witnesses be examined of the time of the place and of the case it selfe whether they haue seene or heard the same what they beleeue or know thereof or of the report they haue heard 9 That to auoid charges there be not too many examined A Maximo of the Law of Arragon The seuenth time is when all must bee alledged which may any manner of waies make for the state of the cause and if it fall out that two witnesses tell one tale as it were verbatim their euidence is voide and the eight time the Iudge proceedeth to a definitiue sentence and the ninth time which must be done within tenne daies the partie may appeale and therupon for the tenth time the pleyto or suite with all the records goeth out of that Iudges court to a higher court where it may not depend aboue a limited time The obseruations doe minister an occasion that many controuersies are ended without law for the parties are not sure to obserue these times and the defendants which seeke delaies are not contented with so short a time of pleading the complainant also may know whether it be safe for him to take his oath as aforesaid that hee is in conscience persuaded of his right To abridge the multiplicities of suits and moreuer paying a fine for wrong molestation abridged with them heretofore the multiplicities of suits Omitting now to speake of other courts of equitie and calling law and Equitie to bee the Common Law so much commended aboue the Ciuile Law by the said M r. Fortescue sometimes Lord chiefe Iustice of the Kings Bench in the time of King Henrie the sixth who hath obserued fiue points wherein the same consisteth let vs obserue many more to extoll the excellencie of the said Common Law as followeth summarily 1 First because of the antiquitie thereof Excellencie of the Common Law of England for that in all the times that the Realme was inhabited by fiue seuerall nations the same was still ruled by the said Customes that it is now gouerned withall which if they had not beene good some of the Kings of these seuerall nations mooued either with justice or with reason and affection would haue changed or abolished the same especially the Romanes who iudged all the world 2 Secondly for that the Kings of England at their Coronation doe take a solemne oath to cause all the Customes of the Realme to be faithfully obserued according to the former institution 3 For that the said ancient Customs or Maximes therof are inexpugnable and doe stand of their owne authoritie as Principles which need no reason to confirme their authoritie as the Lawes of Solon Draco Carondas Licurgus Numa Pompilius and the Law of twelue Tables c. 4 Because all differences and controuersies which happen betweene the King and his subiects are tried and determined by the Law and if it be done in Parlement or by the Iudges it is still according to the Law 5 Because the King personally giueth not any iudgement especially when himselfe is a partie seeing it is against the Law of Nature to be both judge and partie 6 For that notwithstanding the decease of the Kings of England from time to time the Iudges of the Courts of Record that is to say of the Chancerie of the Kings Bench of the Common Pleas which doe sit as Iudges by the Kings Letters Pattents doe remaine authorised and their power ended not immediately with the King howbeit the succeeding Kings doe confirme them in their offices whereby all seditions are preuented during the inter Regnum 7 For that with indifferencie without regard of persons it commandeth as well the Nobilitie and other persons of dignitie by way of vtlagare or outlaw as the meanest subiects 8 For exercising a power ouer the Iudges which are not to judge of the Law but by the Law and therefore is the word Iudicium properly attributed to their determinations euen as the word Decretum is vnderstood of the ordinances or sentences of the Magistrates following equitie as it were without Law For there is the like proportion betweene the Law and the execution thereof called Legis Actio as there is betweene Equitie and the dutie of a Magistrate called Iudicis Officium 9 For that the officers thereof are authorised according to the qualitie and due execution of it by a proportionable distribution namely The Iudges for terme of life and officers subalterne changing from yeare to yeare to the end the administration of justice may bee more indifferent 10 For the diuersitie of the triall thereof in seuerall Courts according to Law and Equitie is the cause of an agreeing and most necessarie discord as it were Concordi Discordia whereby the bodie of justice is supported by striuing as the stones vpholding a vault as Cato saith 11 For that the Iudges in criminall causes doe change from time to time their circuits and inferiour Iudges of the Court doe execute the place as well as superiour Iudges whereby partialitie is preuented 12 For that the Law tendeth most carefully for the good and preseruation of life and goods of euerie good and honest man seeing that euen in criminall causes it hath prouided as much as may stand with justice a helpe and fauour permitting the Iudges to order the pleading of offendors and to instruct them to auoid mispleading and giuing them leaue to except against the Iurors which they dislike 13 For that it doth forbid the sale of offices thereby intending due administration of justice for where offices are sold as it were by the Great there justice is commonly solde by
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
buying and selling of commodities either for readie money or payable at some daies of payment wherein the mediation of a Broker is most necessarie For as it would be troublesome to vse Scriueners in euerie bargaine so is it commodious to vse the meanes of Brokers the commodities are not onely bought and sold with more credit and reputation but all controuersies which doe arise by misaduenture or otherwise are sooner determined and a sworne Broker is taken as a double witnesse if he doe produce his booke with a Memorandum of the bargaine as the same was agreed betweene both parties whereby many variences are reconciled and differences like to fall out are preuented The most beneficiall contract I had almost forgotten the most memorable contracts that euer were whereby the Philosophers Elixar or stone is found turning Leade Paper and Inke into Gold and Siluer which is the contract of Popes for their Crusadoes or Bulls whereof there are certaine contractors who for a certaine summe of money yearely to be paied doe receiue authoritie to disperse the said Pardons or Bulls into the West-Indies Perou Noua Espagnia and all those quarters of the world and euerie resonable soule must haue one of them yearely and that this is the most beneficiall contract I proue thus In the yeare 1591 Pope Sixtus Quintus caused two ships to be laden out of Spaine for the West-Indies as aforesaid with some 100 Buts of Sackes 1400 little Chests containing each of them three ordinarie small Barrells of Quicke-siluer weighing 50 ll the peece to refine the Siluer withall in the said Indies and moreouer with a great number of Packes of the Printed Bulls and Pardons graunted at that time to make prouision against the Heretickes Forasmuch that the great Armada of the yeare 1588 had so much exhausted the treasure of Spaine These two ships were met withall at sea by Captaine White who was laden and bound for Barbarie and brought into England by him where the commodities were sold but the Popes merchandise being out of request remained a long time in Ware-houses at the disposing of Qâ—eene Elizabeth vntill at last at the earnest request of her Physitian called Docter Lopes she gaue all the said great quantitie of Bulls vnto him amounting to many thousands in number This courtly Merchant falling in communication with an Italian knight who had been a Merchant did conclude with the said knight to make a partable voyage betweene them and to send those Bulls into the West-Indies and accordingly a ship was fraighted and laden with the said Bulls and some other commodities and did perform the said voyage to the Indies but no sooner arriued the Popes Contractor for that commoditie did seise vpon all the said Bulls and caused an information to be giuen against them that they were infected hauing beene taken by Heretickes it was alleaged that they were miraculously saued but lost they were and confiscated and so couetousnesse was well rewarded But returning to prooue this beneficiall Contract The Pope his Merchandize I was at the time of the taking of the said Bulls willed by authoritie to make and estimate what the lading of these two ships might cost and what they might haue beene worth in the West Indies according to the rate of euery Bull taxed at two Royalls of plate and some foure and some eight Royalls according to their limitation euery one being but one sheet of paper and by computation the lading did not cost fiftie thousand pounds and would haue yeelded aboue six hundreth thousand pounds for these contracts are feruent and full of deuotion containing also a commandement that their beds should bee sold rather than any one should bee without a Bull for the safetie of the soule was to bee preferred before the health and ease of the bodie Now before we intreat of extrauagant Contracts in the buying and selling of commodities in some places it will not be impertinent to note the obseruations and opinions of Ciuilians concerning Merchants Contracts which they haue distinguished to be Solemne Publike or Priuate as in the Marginall notes is before declared to the end all controuersies may bee auoided in the said Merchants Contracts The Ciuilians writing De Contractibus Mercatorum Merchants Contracts are to be plaine or of Merchants Contracts make many distinctions but the conditions agreed vpon betweene them are chiefly considerable and to bee well declared to auoid ambiguitie and constructions and reciprocall things to bee performed on both sides which bindeth them better so that if a Contract be broken whereby the one partie is damnified for the want of his money or goods not deliuered whereby he can make no benefit and is hindered in his trade by Lucrum Cessans or not getting the other partie may iustly demand recompence for the same especially if hee bee a merchant otherwise some Ciuilians make the same questionable as Fisher-men Fowlers and Hunters which say they cannot demand any losse for want of their owne because by their professions they are vncertaine whether they shall catch or take any thing by their Art Neuerthelesse the Merchants Court hath an especiall care to performe well with Fisher-men Fisher-men are to be respected vpon Contracts and that with all expedition of iustice they may bee dispatched to follow their trade without any intermission of time This damage sustained by Merchants or others The first damage vpon Contrâ—cts to be regarded for the non performance of Contracts cannot bee demanded by a continuance of time running Ad infinitum during the matter in question but must bee demanded according to the first damage receiued as the partie can duely proue the same either by witnesses or vpon his oath as the cause may require Therefore when Merchants are contending in any Courts of Equitie or Law where they are delayed for many yeares in continuall suit at their great charges Then it tendeth to the interrupof trade and commerce in generall and the ouerthrow of the parties in particular whereof the Law of Merchants hath a singular care to prouide for and therefore doth many times though not without danger admit the proofe to bee made vpon the parties oath if witnesses be absent Penaltiâ—â— vpon contracts The penalties or forfeitures vpon any Contract limited and expressed be it Nomine Poene or otherwise are therefore much to bee considered of in equitie to make them stand and to bee effectuall for the mainetenance of Faith and Credit betweene Merchants and they are consequently much approoued by all Ciuilians and by their Law allowed In all Contracts made for a copartnership in prouiding of a ioynt Stocke is to bee obserued that the one or some of them doe not defraud the other Also it is approued that they may sell their aduenture to others and the buyer is to take the account according to the Contract Obseruations in partable contracts for the account giuen to other partners in Societies doth alwaies bind the buyer
is condemned and forbidden by the holy Scripture the Imperiall Lawes Ciuile and Canon Lawes ancient Fathers Decretals learned Philosophers eloquent Orators Historiographers and Law-giuers The consideration whereof caused me some yeares since to write a small * Saint George for England Treatise of the Operation of Vsurie in Kingdomes States and Common-weales shewing although allegorically the effects of it with the six members of euerie Common-wealth which are Clergie-men Magistrates Noblemen Merchants Artificers and Husband-men by ouerthrowing the harmonicall gouernement of them by too much inriching some and by oppressing and impouerishing some others bringing the instrument out of tune when as euerie member of the same should liue contented in his vocation and execute his charge according to his profession whereby all things should be gouerned in the best and most assured manner that can be deuised and as it were seeking a kind of certaintie in vncertainties which is termed Policie For all worldly and transitorie things being mutable maketh the world properly to consist of discord and dissention a verie vncertaine ground to build vpon and yet a certaine equalitie and concord is required in euerie well gouerned Common-wealth the Prince and gouernour hauing the disposing both of the one and the other Equalitie concerning trafficke and commerce betwixt his dominions and other countreys and Concord amongst the members of a Common-wealth when euerie member thereof doth liue contentedly and proportionably in his vocation Both these are confounded by intollerable Vsurie which is described vnder the inuented historie of Saint George The Historie of S. George whereby our Sauiour Christ was prefigured deliuering the Virgin which did signifie the sinfull soules of Christians from the Dragon or Deuils power So by the person of Saint George is vnderstood the Kings authoritie armed with the right armour of Christians who with the sword of the Spirit of Gods most holy Word explained and corroborated with seuerall other Lawes signified by the Pybald horse whereon hee was mounted did destroy the Dragon Vsurie hauing two wings to aduance himselfe being Vsura palliata and Vsura explicata and his inconstant taile Cambium the Virgin or Kings daughter being treasure and moneys to be deuoured by his meanes and forraine nations The allegorie whereof requireth a due consideration and would in plaine termes be distastfull to diuers This Dragon bringeth inequalitie in a Common-wealth by the meanes of his tayle wherein lieth his greatest strength making the expences thereof to surmount the reuenues In the curing of which disease those would be thought to be verie foolish Physicians that by their medicine should cast the Bodie Politike of a Common-wealth into a more dangerous sickenesse Wherefore as the wounds of this Dragon Vsurie are inueterated so must hee bee dealt withall by degrees and lenitie admitting him for the time as most States and Gouerments doe as a necessarie euill in regard of trafficke and trade A necessarie euill albeit that many Vsurers are like vnto Iewes who thinke it lawfull for them to take any forfeiture bee it neuer so vnequall and vniust any morgage any pawne nothing is amisse for them they are not afraid of that wenne which wee call Anatokismos that is Vsurie vpon Vsurie no they dread not to take tenne vpon the hundreth if it were for a weeke The pretence of the Iewes is because we are strangers as if wee were all Canaanites or some of the seuen Nations which were as well to bee opprest by Vsurie as to bee rooted out by Iosuah but these men cannot alleage any thing in their defence but greedie lucre * dtridot CHAP. XI Of Vsurie Politike and Moneys deliuered at Interest IN the precedent Chapter you may perceiue what Lawes and prohibitions are made against Vsurie and neuerthelesse the practise of it is most vsuall in many Kingdomes and Common-weales and the Lawes are also made accordingly for this sinne is rather in the conscience than in the act and therefore there is no penaltie imposed vpon it by Gods Law True it is that the Statute Law of England doth tollerate tenne vpon the hundreth and so doe some other Lawes twelue and more But the intent and not the rigour thereof is to bee weighed for the cleering of iustice and the preamble of the said Statute Law in the narratiue part saith That whereas Vsurie is against all Diuine and Humane Lawes yet tenne vpon the hundreth is tollerated to be taken for the yeare which by way of forfeiture in the nature of a punishment may be sued for by the Law but if there bee neuer so little taken aboue the said rate of tenne vpon the hundreth for the yeare the principle is lost and treble damages The word Vsurie was not so odious in times past as it is now taken by the abuse of Vsurie Politike Threefold Vsurie no more than it is in Vsurie Naturall and Vsurie Spirituall and my meaning is not to maintaine Vsurie Politike in all respects contrarie to the opinion of Diuines that haue the Word of God for their warrant but the ouer-precisenes therin may breed a great inconuenience to the Common-wealth The Law of God did not punish theft by death but onely by restitution and as Cato saith Cato de Rustica When a theefe was punished to pay the double of that he had taken the Vsurer was alwayes condemned to pay foure times the value The Lawes therefore are made according to the alterations of times nature condition and disposition of the people and simply to say that any thing taken aboue the principall is Vsurie is wonderfull strict vnlesse you take the word Vsurie to bee Biting because the same is neuer hurtfull but where it biteth and the matter of conscience consisteth in the not getting of your debtor and not in the taking of much or little interest The Vsurie is greater therefore to take but two or three vpon the hundreth of one that maketh no benefit of the money than to take tenne or twelue vpon the hundreth of a Merchant who maketh a greater gaine thereby according to the holy Scripture Pecunia non potest parere alienas negociari miserias fratrem non mor debis non munera super innocentem which was the cause that by the Lawes of the Romanes he that took Vsurie of the poore was more punished than he that tooke nay than he that did steale from the rich for no man is bound by law or otherwise admonished to lend money vnto those that haue no need of it and there is on the other side a conscience to be vsed if a man haue gotten well by another mans money and doth pay the same againe without any interest or profit Also in case of interest taken it is considerable That if I doe lend money to him that hath neede and can afterwards prooue that for want of that money I haue sustained great losse or if my debtor doe breake day with me when I looke to haue it at the time appointed and
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
occasions and was not altogether made in the first foundation as the Lawes whereby the Common-weales of Israel whose Lawes were vniformely made by Moses from God or those of Crete Cybaris Sparta Carthage by Minos Charondas Lycurgus and Phalcas Neuerthelesse many Emperours and Kings haue alwaies referred the ending of differences which happen betweene Merchants to be done decided according to the Law-Merchant That is to say according to the Custome of Merchants who by their trauels found the diuersitie of weights and measures and the goodnesse and vse of commodities pleasing to all nations whereby the superfluities of them were vented amongst them Vt quod vspiam nascitur boni id apud omnes affluat This Law of Merchants or Lex Mercatoria in the fundamentals of it Definition of the Law-merchant Deâ—epub is nothing else but as Cicero defineth true and iust Law Recta Ratio naturae congruens diffusa in omnes Constans sempiterna True Law is right Reason agreeable to Nature in all points diffused and spread in all Nations consisting perpetually without abrogation Ius gentium howbeit some doe attribute this definition vnto ius gentium or the Law of Nations which consisteth of Customes Manners and prescriptions of all Nations being of like conditions to all people and obserued by them as a law But the matter being truely examined we shall find it more naturally and properly belongeth to the Law-merchant Euery man knoweth 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 Prerogatiues of Princes by the Law of Nations Princes and Potentates by their prerogatiues respecting the law of Nations doe permit amongst themselues a free trauelling by land through their seuerall Kingdomes Territories and Dominions vnlesse they bee open enemies They hold likewise a communitie of the seas for Nauigation as also a distinct dominion of the seas adioyning to the territories and iurisdiction of their countries they take Custome Subsidies and all manner of impositions vpon the commodities imported and exported out of their Harbours Hauens and Ports as also duties for the fishing in their Seas Streames and Dominions of all which the Merchant is to take especiall notice to auoid danger in the trafficke and trade with their subiects for non-payment of the same which they claime iure gentium Are not the Sea Lawes establisted 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 prerogaties 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 Manners and prescriptions of the law of Nations 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 separation 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 of any man whereunto all things touching man haue a reference and doe meerely belong to the preheminence of Princes in their places of Soueraigntie And herein let vs obserue the difference betweene Lawes and Customes according to the description of the said worthy author Cicero Differeâ—ce betweene Lawes and Customes A Custome saith hee taketh hir strength by little and little in progresse of Time by a generall Consent or of the most part But the Law commeth forth in a moment and taketh her strength from him that hath power to command Customes doe take place gently but the Law commandeth with a power suddenly True it is that the Law may abolish Customes but Customes cannot derogate from the Law because Magistrates will see them executed at all times Customes haue their strength by sufferance but the Law commandeth by absolute authoritie of a Prince And yet Customes are of no lesse power than a Law and the difference consisteth most in the manner Lex est cui omnes homines decet obedire propter multa varia maxime quia omnis lex est inuentio quaedam donum Dei. All men ought to obey the Lawes which are many and diuers and chiefly because all Lawes are as is it were an inuention and a gift of God So much yea more may bee said of the Custome of Merchants because of their continuance and Antiquitie as aforesaid And for that the said customarie Law of Merchants hath a peculiar prerogatiue aboue all other Customes The Prerogatiue of Merchants Customes aboue all other Customes for that the same is obserued in all places whereas the Customes of one place doe not extend in other places and sometimes they are obserued and sometimes they are neglected But the Customes of Merchants concerning trafficke and commerce are permanent and constant and when they are not truely obserued in some places by some errour or misprision Non est consuetudo sed vsurpatio For such Customes loose their names and are called Vsurpation which is the cause that many times Customes are established for Lawes by him or them that haue power to make Lawes And Customes are the best Interpreters of the Lawes Customes are the best interpreters of Lawes either for suppressing of vice or establishiug of Vertue So that whosoeuer alleadgeth a Custome in his defence is to prooue and maintaine the same if it bee honest Now wee must not vnderstand this of any euill Custome because they make no presidents and are to bee supressed by Lawes Likewise a Custome well obserued is to bee preferred before a Law not obserued A Gradation concerning Lawes and Customes And this Gradation ought to be maintained and seâ—iously obserued concerning Lawes and Customes That euen as the Wills Contracts or Testaments of particular men cannot derogate or vndoe the Ordinances of the Magistrates and as the order of the Magistrates cannot abolish ancient good Customes nor Customes cannot abridge the generall Lawes of an absolute Prince no more can the Law of Princes alter or change the Law of God and Nature Bartolus Baldus Iustinian Vlpian Paule the Iurisconsulse Papinian Benvenuto Straccha Petrus Santerne Ioannes Inder Balduinus de Vbald Rodericus Suarez Iason Angell Andrias Tiraquell Alciatus Budeus Alexander Perusius Pomponius Incolaus Boertius Azo Celsus Rusinus Mansilius
them It is almost 40 yeares since I did maintaine diuers milnes and cutters of Diamonds whereby experience made proofe vnto me of these things which are verie considerable For the water of Diamonds is also chiefly seene in the cutting and polishing of Diamonds some being a yellow water other greenish other brownish but the difference is almost all alike if they be of one rocke that is to say they are like in the parcels as they sell them The best waters are whitish inclining to the blew which maketh the best illustration and play as some call it which sometimes will be found to be admirable in a thinne stone or feables as the Portugalls call them but the fassets must be industriously wrought which in great stones of 10 or 12 Carrats maketh them to be Paragons Paragon Diamonds that is to say in all perfection and being Piedras de muestra or stones of shew will be sold by estimation as the loue and fancie of a man will carrie the same In times past all Diamonds aboue 4 Carrats rough or vnwrought were the kings in the places where they were found which is the cause that concerning the values of Diamonds of aboue 4 Carrats cut no proportion in price is made certaine betweene Iewellers but is left to estimation according to the abouesaid properties Small Diamonds haue some proportionable price rising and falling accordingly which were set downe at Paris in France during the raigne of the French king Henrie the fourth by the Iewellers there as followeth Crownes of 6 ss euerie Carrat Of 10 stones a Car. 5. Of 9 to a Carrat 5 ½ Of 8 ½ to a Carrat 6 Of 7 ½ to a Carrat 7 Of 7 to a Carrat 7 ½ Of 6 ½ to a Car. 8 Of 6 to a Car. 8 ¼ Of 5 ½ to a Car. 8 ½ Of 5 to a Car. 8 ¾ Of 4 ½ to a Car. 9 Of 4 to a Car. 9 ¼ Of 3 ½ to a Car. 9 ¾ Of 3 to a Car. 10 ¼ Of 2 ½ to a Car. 11 Of 2 to a Car. 12 Of 2 ¼ gr the peece 12 ½ Of 2 ½ gr the peece 13 Of 2 ¾ gr the peece 14 ½ crowns the Car. Rough Diamonds called Bruits Of 3 Graines 16 ½ the Carrat Of 3 ¼ Graines 17 Of 3 ¾ Graines 18 ½ Of 1 Car. the peece 19 Of 4 ¼ Graines 19 ½ Of 4 ½ Graines 20 Of 4 ¾ Graines 21 Of 5 Graines 22 Of 6 Graines 24 Of 7 Graines 26 Of 8 Graines 30 Of 9 Graines 34 Of 10 Graines 40 Of 11 Graines 45 Of 12 Graines 50 Of 16 or 4 Carrats 60 By this estimat it appeareth that a Diamond of 4 Carrats brute or vncut is set downe 60 French crownes which is 18 ll sterling for it is vncertaine what may be diminished of the weight by the workemanship of it Diamonds cut and polished So that in the Stones cut and polished there is more certaintie whereof the price was likewise proportionably set down as followeth Of ½ a Graine 20 shillings ster Of ¾ of a Graines 25 Of one Graine 40 Of 1 ¼ Graine 50 Of 1 ½ Graine 60 Of 1 ¾ Graine 80 Of 2 Graines 100 Of 2 ¼ Graines 120 Of 2 ½ Graines 150 Of 2 ¾ Graines 9 ll 0 0 Of 3 Graines 12 0 0 Of 3 ¼ Graines 16 0 0 Of 3 ½ Graines 20 0 0 Of 3 ¾ Graines 24 0 0 Of 4 Gr. or one Carrat 30 0 0 Of one Carrat ¼ 33 0 0 Of 1 ½ Carrats 36 0 0 Of 1 ¾ Carrat 40 0 0 Of 2 Carrats 60 0 0 Of 3 Carrats 100 0 0 Of 4 Carrats 200 0 0 All which prices may alter from time to time according to the vse of precious Stones vpon accidentall causes of the mariages of Princes and great personages to be done proportionably As if the Diamond of a Carrat should rise 20 in the hundreth then all the other sorts accordingly and so also in the falling of the price by greater quantities Diamonds of yellow water which giue lustre extraordinarily by candle-light are more in request in Germanie and some places in Italie where the browne Diamonds are also desired But in England France they are worth ⅓ part lesse which is according to the aboue said prices that Diamonds are now worth with vs also The Diamond of a full Carrat being a perfect Table and yellow is worth 20 ll sterling The pointed Diamonds which in regard of their natural proportion hauing lesse wast in the cutting heretofore sold better cheape than the Table Diamonds are now deerer and more esteemed About this time of the abouesaid estimation these Diamonds of the Sortes following Brute Diamonds at Lixborne were bought rough or brute at Lixborne   ll s. d. Of 10 peeces to a Carrat 1000 reis or 0 12 6 the Carrat Of 9 to a Carrat 1200 reis 0 15 0 Of 8 to a Carrat 1400 reis 0 17 6 Of 7 to a Carrat 1600 reis 1 0 0 Of 6 to a Carrat 1800 reis 1 2 6 Of 5 to a Carrat 2000 reis 1 5 0 Of 4 to a Carrat 2400 reis 1 10 0 Of 3 to a Carrat 3200 reis 2 0 0 Of 2 to a Carrat 4000 reis 2 10 0 Of one Carrat nayfe 6000 reis 3 15 0 Of one Carrat flat stones 5000 reis 3 2 6 The cutting of them was 10 and 12 ss for euerie Carrat in those daies There is a rule for cut Diamonds aboue 5 Carrat A Diamond of 10 Carrats is 10 times 10 which is 100 so at 25 pound a Carrat is worth 2500 pounds To multiplie the weight of them within it selfe and then by the price of one Carrat to value the same as in the margent appeareth by the said rule after 25 ll the Carrat Rubies are found for the most part in a riuer called Pegu being of the best kind and finest and are called Nuncuplo of a high colour without any spots and cleane Rubies also the hardest and coldest vpon the tongue as the Indians say They are sold by the Corcia or score of 20 peeces by a weight called Fanan The Rubie of one Fanan for 10 Pardaos or Ducatts is 50 ss ster If they be not perfect the price must be considered as in the Island of Zeilan where great quantities are found of a fleshie colour esteemed but ⅓ in value called by the Indians Manecas which being mundified by the fire are made Carbuncles Carbuncles There is also found in Pegu another kind called Spinella with vs Spinella and by them Caropus esteemed at half the value of Rubies And in the like estimation were another kind found in Balassia and so called Balassia much like vnto the colour of a rose Saphires in the Island of Zeilan the hardest are best Saphiers and of azure colour Topasies in the same Island of colour like beaten gold Topasies the hardest are best and were sold for their weight
Principall and if he do not pay then the Suretie is to pay it without any course of law vnlesse he be ordered by the Court of Merchants to performe the same because that thereby he may also the sooner recouer the same of the Principall for whom he did giue his promise It is also a custome amongst Merchants that if a Merchant be indebted vnto another and thereupon intreateth another merchant to desire the creditor to respit him some time for the paiment of it if then the said merchant the debtor do not pay accordingly at the time he shall be taken pro confesso and sentence shall be giuen by the Merchants Court for the paiment thereof onely vpon proofe made that he did will another to craue the said respite of time for the paiment The like is done by the Common law of England by triall of Iuries of 12 men vpon proofe made by euidence produced before them that the debtor did craue day of paiment so that they will thereupon deliuer their verdict and iudgement and execution may be of course had for the same But if the promise be not conditionall then is he an absolute Suretie and is to pay the same accordingly as merchants of credit alwaies haue done To become a suretie vnawares A merchant may also be come in the nature of a Suretie vnawares or vnknown vnto him as befell vnto a friend of mine not may yeres since at Frankford in Germanie who during the Mart or Faire went into a merchants Ware-house to conferre of some businesse with him where hee found another merchant of his acquaintance to cheapen some parcel of silke wares with the said other merchant to whom this man as it seemed was vnknowne whereupon the seller of the said silk wares tooke occasion to aske my friend whether he were a good man and of credit and he answered he was so the bargaine was made and goods were deliuered vnto the said merchant the buyer to the value of 460 ll for the which he made a bill obligatorie payable the next Faire following at which Faire the partie not appearing demand was made of my friend to make payment of the said 460 ll because the partie was absent and withall some doubt was made of his sufficiencie my friend had not so much as remembred that any such question was demanded of him but the partie did put him in mind of it by circumstances and would be paied of him he in defence did alleage it to be nudum pactum ex quo non oritur actio and so not bound to pay the same as hauing had no consideration for it The opinion of merchants was demaunded wherein there was great diuersitie so that the Ciuile Law was to determine the same and by the said Law according to the title de mandato consilij he was adiudge to pay the said 460 ll and to haue the debtors bill obligatorie made ouer vnto him A caueat for merchants c. whereof he could neuer recouer one pennie although he did pay the whole debt and dammages for the partie became insoluent This may be a good caueat for merchants and all men for if he had said He is taken or reputed to be a good man of credit or I take him to be so he had beene cleered by the law and the custome of merchants Considerable promises Some promises are considerable according to reason as if a man vpon a penaltie do promise another not to molest or trouble him if the other giue him cause of offence to breake the same he incurreth not the penaltie and a promise made to do a thing is alwaies vnderstood to be for the first time So to make a promise that a pawne shall not be alienated yet it is held by diuers that the same may be hipothecated vnto another so the pawne be preserued Againe on the contrarie if a ship-wright do promise to build a ship for a merchant and hee causeth the same to be done by another here the promise is broken by the Law albeit this question is not materiall for it is not like that the building of Ships can be done without contracts in writing and onely by bare promises And the like may bee said to the greatest part of all the questions wherewith the Bookes of Ciuilians are fraighted so that for Merchants vnderstanding the ancient ordinarie Customes obserued in the course of the said Essentiall Parts of Trafficke is plainely to bee declared and distinguished from litigious questions CHAP. XI Of the Reuolution of Buying and Selling of Commodities by the course of Trafficke EVen as the whole Commerce and Trafficke consisteth of our Land Commodities and some fishing on the Seas and of the Commodities of forraine Nations So from hence followeth An efficient Cause of a kind of Reuolution in buying and selling of Commodities because the commodities of one countrie growing rancke and aboundant are transported into other countries in whose steed needfull commodities of those kingdomes and countries and returned thither which is a neighbourly lending betweene kingdomes and countries For as is noted God caused Nature to distribute her benefits or his blessings to seuerall Climates of diuers things found in some places that are not in other places to make an interchangeable course of the said commodities by way of merchandizing This Reuolution of Trade Sundry means for buying and selling may be illustrated by the consideration of the seuerall meanes whereby the said buying and selling are effected 1 The first is buying with readie money For readie money which is commonly the best and with most aduantage for commodities are sold better cheape wherein the knowledge of the goodnesse and necessarie vse is requisite 2 There is also a buying and selling of Commodities For readie mony and paiable at times paiable at some limitted time or times of paiment or partly readie mony and partly at times and the difference of price heerein is commonly aboue tenne vpon the hundreth more or lesse as the rate of monyes at interest are in the places of Commerce where the said Commodities are sold or bought and according to the plentie of mony extant vnlesse the superaboundance of Commodities doe alter the same especially if the Commodities be perishable by Corruption Time and Accidents so that the condition qualitie or goodnesse of the commoditie is much to be respected which was the cause that when commodities did abound at the first and the wealth of man was described by cattle and the like perishable things all kind of metall as being durable was most esteemed and the purest mettall taken to be fittest to make monyes of as hereafter shall bee amply declared in our second Part. By Billes of Exchange 3 There is another buying and selling of commodities to bee payed by Billes of Exchanges that is to say The Buyer giueth a Bill of Exchange or many Billes to bee payed by exchange in another place as for example one buyeth fiue hundreth
of Debt Herein we may consider a necessitie to giue Blankes not only because of the Masters Credit requisite but also because of the vncertaintie in the finding of the quantitie of Corne which was to be bought CHAP. XV. Of Letters of Attorney or Procurations and Transports or Conueyances A definition of a Letter of Atturney c. A Letter of Attorney is an Act publikely done before a Notarie or Scriuenor whereby one man giueth power and authoritie of himselfe vnto another man by way of Deputation to doe execute and performe for him any lawfull thing which he himselfe being the Constituant might or may aswell present as absent doe conclude and determine in all causes Ciuile and Politike with power also to Substitute one or more persons to doe the same vnder him in the said first Constituants name and to sweare in the soule of him if cause so require albeit the said Letters of Attorney doe differ in the manner and forme as well as in the Substance which must be obserued They are called beyond the Seas Procurations to procure or effect that which a man would haue commonly in an other place and in matter of Authoritie for Law Causes they goe one degâ—ee further than Letters of Credit because the Law doth require the same to the end that the Authoritie or Power of the partie Constituted may publikely appeare wherein a Letter Missiue is not sufficient as the same is in things concerning the ordinarie course of Negotiations and dealings betweene Merchants which by the Law-merchant are of great validitie Procurations generally or for the most part containe the word Irreuocable Pâ—ocurations irreuocable implying that Power giuen should endure for euer and so it is taken beyond the Seas But by the Common Law the words are vsed Pro forma and a Procuration or Letter of Atturney is reuocable at all times vnlesse it bee that the said Letter of Atturney do containe a Transport of some thing which is conueyed thereby As if a man do constitute another for the recouvering of certaine moneyes for the parties owne proper vse without account to be rendred for the same and the said partie hath recouered the said moneys by vertue of it This Letter of Attorney cannot be reuoked to any purpose the effect being fully performed which was the cause thereof So beyond the seas if you make a Letter of Attorney to a Procurator in Law to follow a cause for you in Law although the same be made irreuocable yet vpon good cause you may reuoke the same and appoint another to follow the cause but it is commonly done with leaue of the Court where the cause is consisting or depending and because the intimations and citations are to be done at such times as the cause may require the nomination of some place as it were to chuse a Domicilium must be done Procurations with a limited power but the power may be limited An Attorney may haue authoritie to conuict a man by law for the recouerie of money or goods and to proceed to execution by imprisoning of the Debtor yet he shall haue no power to release him out of prison without further authoritie so in the receiuing of goods or money wherein euerie man is to vse his discretion as the cause may require A Merchant may also make a Letter of Attorney to a Notarie beyond the seas and thereby to giue him power to make any insinuation or intimation or protest against any other Merchant there to serue him in all occasions or occurrences concerning the matter in question For a Procuration is beyond the seas of that validitie that the partie who hath the same and is the Procurator is taken in law as absolute as the Constituant and many sundrie proceedings may be vsed against him accordingly by Citations Intimations Protests Recoueries of goods deliuered formerly and recalled backe againe or the value thereof vpon any Attachments or Sequestrations which cannot be done against a mans Factor or Seruant A caueat for Procurators therefore they that haue Procurations are to be carefull of the dispossessing of themselues of any goods or moneys receiued to be cleered by the Law which happeneth commonly of goods taken vpon the seas or sequestred in any Harbour by vertue of a Letter of Attorney or Procuration The Ciuilians intreating of Procurations or Constitutions vnder Titulas Mandati haue well obserued The originall of Mandata that commandements haue their originall from friendship or out of authoritie of office and place and that the same are diligently to be executed and kept and hereupon they haue also noted diuers questions and propositions Nos igitur pauca tractabimus adrem de qua agitur pertinentia A.B. willed C.D. his debtor to pay vnto E. â— one hundred pounds which he did owe him C.D. did not pay the said money but promised to pay the same Queritur whether C.D. hath performed the commission or commandement giuen him and whether he be discharged of the debt as also whether this order or commission can be reuoked A.B. owing the like summe to E.F. Herein C.D. hath not performed his commission which was to pay and not to promise the payment of the hundreth pounds and therefore the said Commission might be reuoked and C.D. was not discharged of the debt for the matter was entire and all entire Commissions are reuocable Mandatum enim re integra reuocari potest res est integra si stipulatio promissioue interuenerit cum id non mandauerim For if C.D. should breake or become insoluent E.F. would come to A.B. his debtor to haue satisfaction for the said money and C.D. was not discharged of the debt owing vnto A.B. But if E.F. had taken his promise for paiment then vpon proofe made of it the case is cleere It is a question also whether a Procurator hauing commission to receiue moneys which were owing or lent and to giue an Acquittance for the same and receiuing the money without making an Acquittance haue performed his commission And the answere is That he hath not performed the same because he made no Acquittance as he was willed to do Aliud est enim confessio aliud numeratio Albeit the Acquittance did not concerne the Procurator but the partie who repaied the money Another case they handle at large Bartholomew did make and constitute Nicholas to be his Procurator or Agent in the buying of commodities to the value of fiue thousand crownes and he the Constituant to be answerable for the price and totall summe of fiue thousand crownes and withall giuing full power and authoritie vnto the said Nicholas that his procuration shall be good and auaileable during the liues of the honest persons Gerome Iohn and Angell of whom the said Constituant had his Commission and that they also together and apart insolidum should be bound for the performance and himselfe also Nicholas the Procurator by the commission of Ierome Iohn and Angell as also
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
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
expresse them vpon the verie words contained in all or most policies of Assurances namely Of the Seas men of Warre Fire Enemies Pirats Rouers Theeues Iettezons Letters of Mart and Couenants Arrest Restraints and Detainements of Kings and Princes and of all other persons Barratrie of the Master and Mariners and of all other Perills Losses and Misfortunes whatsoeuer they be and howsoeuer they shall happen or come to the hurt and detriment of the Goods and Merchandises or any part or parcell thereof c. First the Policie of assurance saith That such a man of what nation or qualitie soeuer he be caused himselfe to be assured from such a place to such a place vpon goods or c. laden or to be laden in the good Ship called the Dragon or c. of the burthen of so many Tunnes whereof A.B. is Master for such a voyage and to beare the aduentures abouesaid If the person whose name is vsed in the assurance be in time of warre taken to be no friend to the State there is a danger to pay the said assurance if after the subscription of the assurour the goods should bee arrested and be made forfeited to answere the same to the Prince albeit this was by the late Queene Elizabeth contradicted in the point of honour as it pleased her of a royall and noble disposition to say in a case concerning the Portugalls subiects to her aduersarie Phillip the second King of Spaine For in the yeare 1589 a great Ship being taken by certaine men of warre of London and brought into Plimmouth laden with Pepper Sugar and other commodities at Lixborne to bee deliuered at Venice it pleased the Lords of her Highnesse most honourable priuie Councell to deliuer vnto me all the Letters Bills of lading and Inuoyces which were found in the said Ship being written in six or seuen seuerall languages to the end I should make true report of the contents of them to know to whom properly the said goods did appertaine in doing whereof I found that a great part of the said goods did belong to the Venetians as also to the Florentines with whom the said Queene had no quarrell but that the said goods were assured at Lixborne by the Portugall Merchants Hereupon there was a pretence to make them good prize and the matter was long debated and at last resolued that the parties should haue restitution of their goods the rather for that the Portugalls were great losers many wayes which was done accordingly The losses which ordinarily according to the seasons of the yeare happen vpon the Seas are knowne the like is more or lesse with men of warre enemies Pirats Rouers and theeues Lâ—sses to bâ— well considered of in the behalfe of the assurors especially with men of warre in times of hostilitie as it is in times of peace by Pirats Rouers or theeues which are assayling theeues for otherwise if there bee theeues on shipboord within themselues the Master of the Ship is to answere for that and to make it good so that the assurors are not to be charged with any such losse which sometimes is not obserued As fraudulent assurances and the losse of stolne goods within shipboord doth not concern the assurors so likewise the fault of the Pilot is to bee considered on their behalfe by the Lawes of Oleron after that the Pilot hath brought the Ship in sure harbour hee is no further bound or lyable for then the Master is to see to her bed and her lying and beare all the rest of her burthen charge and danger So that if before she come into the Port or some safetie either shee or goods perish or bee spoyled Lawes against vnskilfull Pilots the Pilot makes good the same yea if his fault or ignorance bee so grosse that the companie sees any manifest and present wracke to all thereby then may they lead him to the Hatches and strike off his head Moreouer if without apparant danger some of the skilfullest Mariners deeme that a Pilot is not so skilfull as hee maketh boast or profession of then shall he both lose his hire and double the same to the Admirall and Master or else by the Law of Denmarke passe thrice vnder the Ships Keele And also if a Pilot hired for a voyage bee not readie against the day hee shall not onely pay the Master and Merchants damage or stay but also the fraight that is lost thereby except sickenesse or some very lawfull excuse qualifie the same The like consideration must be had in the contribution made to satisfie Pirats for if ship or goods be redeemed from a Pirat the contribution must be made by all because the redemption is made for the safetie of all Contribution for Pirats But if the Pirat be once master of all and yet take but some speciall goods whether from Ship or Merchant and not as a contentation for sparing of the rest in this case because the remainder is not assured thereby but freely spared no contribution is to bee made for the taken goods to charge any assuror with any part thereof For oftentimes Pirats take but things at pleasure and not of mind to spoyle But now adayes commonly it is taken and supposed otherwise howbeit beyond the Seas the loser of the goods so taken beareth his owne losse vnlesse it bee assured It was so iudged by a packe of Stockings taken out of a ship of Amsterdam bound for Sanlucar by the Moores of Barbarie in the yeare 1589 and the assurors payed accordingly who had assured onely vpon that Packe whereas if it had bin cast into an Aueridge to make all the assurors of that Ship contributarie the â—aid assurors had beene much eased Contribution for spoyled goods And it is therefore to be obserued and the Law of Oleron is If by the losing of any cast goods or vpon any needfull occasion the remaining goods be spoyled either with wet or otherwise a contribution shall bee made proportionable for so much as they are made worse Againe if it be needfull to lighten a Ship for her easier entrie into the harbour or channell Contribution for lightening two parts of the losse fall vpon the goods and the third part vpon the Ship vnlesse the Ship is more worth than the lading and that the charge of goods bee not the cause of her inabilitie to enter but some bad qualitie proceeding of the Ship it selfe or that otherwayes it be prouided in the Charter-party that the goods shall bee fully deliuered at the Port couenanted and appointed for them Condition makes law which concerneth the assurors also to looke vnto In which case it is also to bee obserued That if by occasion of lightening the goods which are in the Boat or Lighter perish the Ship and the goods remaining on shipboord shall make good the said losse But on the contrarie if the Ship and goods remaining perish after the Lighter is once safe no contribution shall be set vpon the goods in
instruments The like is for goods cast which were brought within ship-boord without the master or his pursers knowledge In the rating of goods by way of Contribution this order is obserued If they chance to be cast before halfe the voyage performed then they are to be esteemed at the price they cost if after then at the price as the rest or the like shall be sold at the place of discharge The person whose goods haue beene cast is to be carefull to haue the same estimated before the ship doe discharge and to deale with the master for that purpose For the law doth intend that the goods deliuered vnto him are not only as a pawne or pledge for his fraight but also bound to answere all such Contributions and Aueridges that may happen and therefore the master may put his helping hand thereunto vntill satisfaction be made albeit that commonly the detaining of other mens goods are not allowed Three sorts or manner of goods token vpon the sea Herein let vs now consider of things taken vpon the sea which are of three sorts the first we haue alreadie noted to be goods taken by Letters of Mart by ius represaliarum the second are taken from Pirats or sea Rouers and the third from professed enemies Touching that which is taken from Pirats seeing they be goods which they haue wrongfully taken from others whether they be found in their owne or their successors possession these are esteemed to be a iust prise or prey to any taker of them so that account be made of them to the Admirall And in case where the taker doth find the goods of his friend or countrieman with the Pirat it is reasonable that restitution be made vpon good consideration of the charges and danger sustained concerning the same If a ship or goods be taken from a professed enemie it is to be proceeded in according to the authoritie whereby it was taken But if goods be taken by a professed enemie and afterwards the said goods are taken againe from him and the true owner doth claime them it ought to be restored to the owner for the law taketh these goods to be as receiued and not taken yet with good recompence for them But when such goods become a lawfull prise to the taker then the Admirall is to haue his tenth part according to the offer which Abraham made vnto God of the spoyle which he tooke of the fine kings and the remainder of the goods so taken is to be proportionably diuided betweene the takers or according to the composition formerly made In these cases there is alwaies a fauourable consideration to be had which is the cause that if two forreine nations be at warre and the one take a ship from the other and bring her into a port or road within the bounds of a neuterall nation alike friend to both then may the Admirall of that nation ordaine that ship to be restored to her owner and the persons captiue to their former libertie euen as if she had beene brought backe to her owne port or countrie againe * ⎠* CAHP. XXII Of the particulars to bee obserued in Assurances THE obseruations to bee considered of in matter of assurances are very materiall for euery Merchant and deserue a particular Chapter in this Treatise which I haue compiled according to the circumstances of the things themselues for the assurors benefit 1 The first I haue touched in the Partie who causeth the assurance to be made both for his honest dealing and whether hee bee a friend to the State or Kingdome for the reasons aforesaid 2 To know the Master of the Ship and Mariners to bee honest and of experience to auoid the danger of Barratrie and other accidents 3 To take notice of the goodnes of the Ship and of her sayling especially making her voyage alone or in companie of other Ships whether she be old or new built and the price of the assurance to bee accordingly 4 To know by the Map or Sea-cardes the distance of the place or countrey where the Ship is to sayle and the dangers of knowne rockes and sands 5 To haue a regard what winde must serue and the true season of the yeare which maketh a difference in the price of assurance as for example an East or North-east winde driueth from the land for Spaine which is lesse dangerous and receiuing six or seuen pro ciento when a Westerne or North-west or South-west driuing from thence vpon the land is to giue seuen or eight pro ciento in Winter two in the hundreth more than in Summer vnlesse it be by calmes in places dangerous as now in the Straights for the Turkish Pirats and without it the Moores of Barbarie or other theeues So Ships going for East-land against Winter will giue two in the hundreth more than in Summer The like for Ships bound for seuerall Ports more subject to casualties c. 6 To consider of the places of hostilitie where the Ship must vnlade or touch the danger of generall or particular Embargos of Ships the likelihood of detainements of Kings and Princes 7 Not to assure for vnlawfull places of trade or questionable betweene Princes as Guinea and there about the West-Indies vnlesse a good premio bee giuen as in a manner vpon aduentures lost or not lost 8 To know vpon what kind of goods you doe assure whether vpon Wines Oyles Salt Raisons and such like corruptible and perishable wares or vpon other Staple commodities as Clothes Tin Lead or Silkes c. not subiect so ordinarily to Aueridges and contributions as the other 9 To know what Ordnance and Munition the Ship is prouided withall and not to assure vpon the bottome of the Ship but with good aduice 10 If you assure vpon any particular goods marked to know whether they bee laden in the bottome of the Ship and there is danger of wetting and spoiling if aboue in the Ship there is danger of Pirats or of casting ouerboord about the middle is best 11 To bee aduised not to assure beyond the limitation of your knowledge by the meanes of others or from Lixborne to Brazell or from Venice to Tripoly or such like voyages whereof you cannot conueniently haue notice from time to time 12 Lastly to bee prouident in the contributions and aueridges to answere for no more than is your due to pay and to haue an inspection of the Bills of lading if doubt be made of the Commissioners sufficiencie or knowledge in cases of this nature The assurance vpon the liues of men whether aged or young of good qualities and diet of disposition gentle or quarrelsome a traueller or a dweller being somewhat extraordinary euerie man is best able to consider of it by the acquaintance of the persons * ⎠* CHAP. XXVIII Of the manner of Proceedings for Assurances in case of losses WHereas the policie of Assurance remaining with the assured is registred Verbatim in the Office of Assurances to the end that
to a second voyage when the first is performed but to be vigilant in their actions 8 Whether an assurance made for the tempest of the Seas bee also to be vnderstood for Theeues or Robbers vpon the Seas A. The generall and ordinarie policie of assurance containing all aduentures sheweth that the assuror is to beare the aduenture of both these and if it were otherwise in particular it must bee declared So that this distinction is vaine 9 The like may be said to the question Whether an assurance made by stipulation be a contract or not or whether it be couentionall or conditionall wherein this distinction is of no moment 10 Whether an assuror hauing payed the Merchant for goods lost by him assured may afterwards if the goods were found againe or recouered restore the goods to the Merchant and call for his money which he paied backe againe A. It appeareth plainely by all policies of Assurance That the Assuror doth condescend that the Merchant shall haue full power and authoritie by himselfe or his Factors and Seruants to sue for therecouerie of the goods and that the Assurors shall contribute to the charges pro rata of their summes by them assured respectiuely but the Merchant is not therefore hindered to recouer the money of the Assurors neither can one particular Assuror haue all the goods for the Merchant relinquishing the goods to the Assuror reserueth alwaies his part therein which he hath not assured which he detaineth in nature of an Assuror so that the Assuror hath not conuenient meanes to performe the contents of the question neuerthelesse if the Merchant will hee may buy the goods so recouered of the Assurors as they can agree but then is the question altered and not the same 11 Whether an Assuror is to answere any hurt or damage done to the goods by Mice Rats or any other vermine especially moaths A. By the policie of Assurance that Assuror is to answere for all damages detriment or hurt which shall happen to the goods after his vnderwriting but if he can proue the hurt or damage was before done in the ware-house or other place he is not bound to answere the same 12 Whether goods lost in the ship boat being vnladen out of the ship or being to be laden into the ship shall be answered by the Assurors or what may be laied to the charge of the Assurors by contribution A. This question consisteth of two points the answere to the first is plaine according to the policies of Assurances where it is specified that the aduenture shall begin vpon the goods laden in any Boat Vessell or Crayer to be laied aboard of such a Ship or being discharged out of the Ship the aduenture to continue till the goods be safely landed but to the second the answere is not so plaine because it dependeth vpon the sea-law and must be considered accordingly For as we haue noted in the chapter of Contributions if by occasion of lightening the goods which are put into the Boat or Lighter perish the ship and remaining goods in the ship shall answere for the same but on the contrarie if the ship and remaining goods perish after the Boat or Lighter is once safe no contribution shall be on the goods in the Lighter for the law is That the goods shall onely be lyable to contributions when ship and goods are safely arriued to their intended port of discharge according to this rule is the Assuror to answer for contributions pro rata of the summe by him assured 13 Whether assurance made for pirats is to be vnderstood also for theeues which by night steale the goods from the ship A. The answere is so euident that both the one and the other is comprised in the Assurance as there needeth no other explanation 14 Whether an Assurance made at one time vpon goods to be bought and intended to be laden and afterwards found not to be bought at the same time but at another time doth bind the Assurors to pay the losse A. This question is worthie the consideration and doth meerely consist in the obseruation of time not in the buying of the goods although it be so propounded for the time maketh great difference in the assurance as I haue noted before Goods laden in the Summer are not in aduenture comparable to the Winter when stormes and tempests do arise and therefore are not the Assurors to be made answerable to this assurance for the custome herein is cleere and concurring with the Law of Oleron and therefore not comprised in the tenor of the policies of Assurances which is the cause also that Assurors are to haue a speciall regard to the Masters of ships whether they be vicious or diligent for the loue of women and wine maketh them to loose the oportunitie of time so that by contrarie windes their voyage is retarded and which was to be made in Summer falleth out to bee in Winter subiect to eminent daungers and losses whereunto the Assurors become liable as is declared whether it be by accident misfortune casualtie rare successes and negligences of Masters and Mariners vnlooked for and happening in strange manner sodenly 15 Whether an Assuror be liable to the aduenture of goods shipped from one ship into another A. Sometimes in policies of Assurances it happeneth that vpon some especiall consideration this clause forbidding the transferring of goods is inserted because in time of hostilitie or warres betweene princes it might fall out to be vnladen in such ships of those contending princes whereby the aduenture would be farre greater But according to the vsuall Assurances which are made generally without any exception the Assuror is liable thereunto for it is vnderstood that the Master of a ship without some good and accidentall cause would not put the goods from one ship into another but would deliuer them according to the charterpartie at the appointed place which is the cause that when assurance is made vpon some particular goods laden in such a ship vnder such a marke the Policie maketh mention of the goods laden to be transported and deliuered to such a place by the ship or by any other ship or vessell vntill they bee safely landed so that in all these and the like the condition maketh the law 16 Now there is a question Whether an Assuror is answereable to the assurance of goods to beare the aduenture if no goods were laden or but part of the goods A. If a man do bind or oblige a thing to be found in such a place and it is not found there euerie man knoweth that the said thing tied to a locall place cannot be bound thereby because it is a bodie named without substance and not in Rerum natura and there would be vnderstood a priuation without being and where there is not materia forma first there can be no priuation but if part of the goods were laden then the Assurors are liable for so much as that part of goods did cost
or amount vnto albeit that in this as I haue touched before custome is preferred aboue law Custome to be aboue law in this particular for the ciuile law if there be many Assurors in a ship vpon the goods laden therein maketh all the Assurors liable pro rata as they haue assured according to the said part of goods laden if a losse do happen or if there be cause to restore the Premio or sallarie of assurance in part But the custome of Assurances doth impose the losse vpon those Assurors which did first vnderwrite and the later vnderwriters of the Assurors do not beare any part of the losse but must make restitution of the Premio and reserue onely one halfe vpon the hundreth pounds or 10 ss for their vnderwriting in the policie of Assurance as is obserued The Ciuillians therefore haue noted That in Assurances the customes of the sea-lawes and vse amongst Merchants is chiefely to be regarded and obserued In like manner if a ship bound for a certaine port being at sea be driuen backe to the same from whence it departed and by tempest be cast away the Assurors are to aunswere the damage of the goods laden therein for so much as they did assure as they do in other casualties Assurors therefore are rightly exempted by the Diuines and Canonists to be no manner of waies vsurors taking a benefit by contract c. The matter of losse being well examined and made plaine the Commissioners then with a mature deliberation do set downe their determination and sentence That the Assurors shall pay euerie one the mony by him assured and if thereupon any one do denie to make payment accordingly then vpon certificate to the Lord Maior of London and some of the said Commissioners made of his refusall they haue by act of Parliament as aforesaid authoritie to commit the said Assuror to prison there to remaine vntill he doe pay or satisfie the said sentence or finall decree which no man of any credit will incurre And thus is this laudable custome established in England and beyond the seas they are compelled by the Magistrates to performe the like ordinances or sentences pronounced in the like cases of Assurances * ⎠* CHAP. XXIX Of Shipwrecke and things found vpon the Seas THE Merchant or the assured together with the assurors have great cause of encouragement to looke after the goods of a Shipwrecke for there is no forfeiture of the said goods but with all humanitie euerie man is bound to aid them thereunto and whosoeuer steales any such goods hee shall pay fourefold to the owner thereof if hee bee pursued within a yeare and a day and as much to the Prince or Admirall wherein the Sea-law is so strict that the stealing of a nayle or the value thereof maketh the party guiltie to the rest of the goods so that by the ordinance of the Emperor Antonius The theese or robber of such goods should bee beaten and banished for three yeares or if hee were of base condition scourged to the Gallies For he that will not helpe such distressed men shall bee counted as a murtherer and therefore may no man hinder Ships to tye their ropes or lay their anchors on land And therefore did Hadrian the Emperour ordaine That all men hauing possessions on the coasts should attend carefully vpon such chances otherwise they to be answerable for all things missing by stealth or robberie If no man in due time claime such a wrecke then it belongeth to the Prince or Admirall and any action for Shipwrecke must therefore be commenced within a yeare and a day Wherein also is to be noted That if the Ship onely perish and the goods bee saued then the goods shall pay the tenth or the fifth as the difficultie of the sauing thereof shall require For Gold Siluer Silke and the like things of easie transportation should pay lesse than goods of greater weight and burthensome for carriage as being in greater danger except the Master carry in his Ship to a place where hee should not and then is the Merchant free of the Masters losse Now of things found vpon the Seas or within the flood-mark these are of three sorts either found on the streame floating and then are called Floatson or found on the Sea bottome Floatson Lagon and drawne vp from it and then called Lagon or found on land but within the Sea-flood or cast forth there by storme and the water and then are called Ietson Ietson Concerning Floatson and Ietson whether things be cast vp by Shipwrecke or else left or lost through casting in stormes the finders thereof as some Lawyers are of opinion should doe therewith as with other goods found vpon land that is to proclaime the same to be forthcomming to the true owner because the loser remaineth still proprietarie of them and if no man claime the same the finder to keepe the same to himselfe But by the Rhodian Law the finder hath one fifth part for the sauing And in France by the Admiraltie of Rochell they allow Pour le Droict de sauuage one third part which my selfe haue allowed of eightie pipes of Oyle and twentie two Butts of Sackes which became Floatson out of a Ship of Diepe called the Desire which did perish neere the Island of Saint Martin de Rea not farre from Oleron in the yeare 1589 the French King Henry the fourth late deceased being then but King of Nauarre So hath a Diuer for drowned goods Allowâ—ee to Diuers in the Seas one third part vpon eight Cubits deepe and vpon fifteene Cubits hee hath halfe and vpon one Cubit but a tenth which of late yeares was accordingly allowed in some part of Ireland for drawing vp some Ordnance of the Ships which of the Spanish Armada did perish vpon the coast Anno 1588. But by the Custome now vsed euerie man of some qualitie will claime all as his owne if it commeth vpon his land contrarie to the Law of Oleron which giues it to the finder If Ships or Boats are found on the Sea or vpon the coast without any liuing creature therein and no man claiming the same within a yeare and a day then the halfe is allowed to the finder and the other halfe to the Prince But of late yeares all is left to the arbitrement of the Admiralls to consider the finder or taker with some portion for his trauells charges and danger And if the finder conceale such goods whether Anchor Timber Iewels dead men with money or Iewels about them hee not onely loseth his part but also shall bee fined at the will and pleasure of the Admirall If Whales or Regall Fishes Ships or Boats without liuing thing in them be driuen by force of winde and waues onely to any coast or land then all and wholly doth appertaine to the Admirall But in the yeare 1617 a great Whale being found on the coast in Suffolke where Sir Robert Lloyd Knight was Admirall for the late Queene
Anne his Maiesties Consort for her lands there he took not the benefit hereof as hee might haue done but the said Queene had the same In like manner a Deo dando or Deodant appertaineth to the Admirall that is to say The thing whether Ship or Boat that caused the death of a man or whereby a man did perish vnawares To conclude this point let vs remember that in causes of spoile it is sufficient by the Lawes of England for the spoiled to prooue his goods by his marke and the Shipwrecke may not only be proued by the persons liuing but also by the persons who were present at the preparation of their voyage euen their owne parents and children if none of the Ship broken be aliue CHAP. XXX Of Partners of Ships and Voyages FOrasmuch as Parteners and Owners of Ships cannot be constrained by the Law to remaine in Partenership although they had made a couenant neuer to sunder or separate themselues therefore are there many considerations to bee had and required in the same And first it is generally obserued and accustomed That if Owners of a ship newly builded or bought betweene them shall fall out and be at variance the said ship shall bee imployed and make one voyage first Law of Oleron vpon their common charges and aduenture before any of the parteners bee heard to sunder and discharge their part And after that if they cannot agree he who desires to be free is to offer to the rest his part and to set the same vpon a price as he will either hold or sell which if hee will not doe and yet refuseth to set the ship forth with the rest of the Owners or Parteners then may they rigge the said ship at their owne charges and also vpon the aduenture of the refuser so farre as his part doth extend without any account to bee made vnto him of any part of the profit at her returne But they are onely bound to him to bring her home safe or the value of his part to bee answerable for and that iustly because ships were made and inuented in common for the vse of all men euen of them that dwell in the Mountaines as on the Sea coasts and ordained for sayling and not to lie idle and vnoccupied But if the persons who haue most part of the ship refuse to abide in Partenership with him who hath a small part that neither hee can sell his part at a price without great losse nor is yet able for want of meanes to attaine or buy their parts then are they all bound to put the ship to an appraisement and so to dispose of her by sale or setting of her forth on a voyage accordingly by meanes whereof their discord may be ended and the ship not spoyled And if for want of buyers in that place the poore partener can neither auoid the oppression of the richer nor yet the rich satisfie the poore man which may also be wilfull then may the Iudge of the Admiraltie or the ordinarie Iudge deale and decree the same as hee may doe in omnibus alijs bonae fidei actionibus And consider of all the circumstances of the persons of the matter of their difference and of their motiues that thereupon he may administer Iustice in giuing euerie man his due right In cases where Owners doe agree and voyages are vndertaken there the Master of the ship is placed by the Owners A Master placed by the Owners and they ought to make good the Masters fact and deed so that the Master may lay his action vpon any one of the Owners but the rest of the Owners shall pro rata of their portions be contributarie thereunto except the handling of the Ship be so seuerally diuided amongst them or that the Master haue not his Power and Commission of them all or that the Master hath bound himselfe aboue his Commission as if he haue taken vp money to mend the ship when as he needs it not or that hee haue no Commission at all in which case the lender committeth an ouersight and hath no remedie but against the Master But if there were cause of mending the ship and the Master should spend the same another way the Owner is to satisfie the Creditor notwithstanding And aboue all things money lent for victualls to the ships company should be payed and preferred before all other debts If a Merchant contracting with a Mariner that is not a Master be therein ouerseene he must content himselfe for he can haue no action against the Owners except for a fault done by a Mariner which hath beene hired and put in by the Owners Againe albeit that by the Sea-lawes the Owners may not pursue any persons obliged to the Master yet are they permitted to pursue vpon the Masters contract as if they had beene principall contractors Because herein they doe represent and vndertake the person of the Master and these priuiledges are granted to the Owners for the good of the Common-wealth and augmentation of trafficke Neuerthelesse the Master is not bound to render an account of all to the Owners as for passengers which are found vnable to pay and so are not Owners bound to answere for the Masters negligence But it is very conuenient if the Owners bee in place that the Master doe not let the ship to fraight or vndertake any voyage without the priuitie knowledge and aduice of the Owners or of some of them to the end many things may bee aduised by them whereof the Master was ignorant CAHP. XXXI Of Moneys taken vpon Bottommarie by the Master of a ship called Foenus Nauticum THe name Bottommarie is deriued by the Hollanders from the Keele or Bottome of a ship vpon the paralel whereof the Rudder of a ship doth gouerne and direct the same and the money so taken vp by the master of the ship is commonly done vpon great necessitie when moneys must be had in forreine countries to performe a voyage for the vse payed for the same is verie great at 30 40 and 50 pro cent without consideration of time but within so many daies after the voyage ended Difference between interest money and Bottommarie This Money is called Pecunia traiectitia because that vpon the lenders danger and aduenture it is carried beyond or ouer the seas so that if the ship perish or that all be spoyled the lender doth lose the money But on the contrarie money letten at interest is deliuered on the perill of the borrower so that the profit of this is meerely the price of the simple loane called Vsura Locatio or hire but the profit of the other is a reward for the danger and aduenture of the sea which the lender taketh vpon him during the loane which is to be vnderstood vntill a certaine day after the voyage ended therefore if the money miscarrie either before the voyage begin or after the terme appointed for the full loane then the perill pertaineth to the borrower
to the declination of the Dialls plaine superficies making computation from South to East circularly and the Latitude of the place equall to the complement of the inclination of the same superficies Horologicall wherein euery man at his pleasure may iudge with vnderstanding if hee haue tasted but of the first principles of the Mathematikes or Cosmography And hauing made mention of the Attractiue Center I call to memorie a conference which in the yeare 1606 being in Yorkeshire about the Allome Mines and certaine Lead Mines in Richmondshire passed betweene the Archbishop of Yorke Doctor Matthew and my selfe in presence of Ralph Lord Eure with whom I went to Yorke to congratulate the said Archbishop newly come to that See which was concerning the Center of the earth which hee said was vnknowne vnto him what to coniecture of it whereupon we entred into a large discourse insomuch that from the lowest Center wee did clime and ascend to the highest Climate by imaginarie conceits for so is all the studie of the Circle of the Zodiacke Experience of former ages doth confirme this imaginary Circle of the Zodiacke and the appropriation of the twelue Signes therein and after many reasons of the earths stabilitie against the Pithagorians and Copernicus doctrine of Mobilitie that is to say Whether the Heauens moue and the earth resteth immoueable or the earth moue and the great Orbe of Stars be permanent mentioned before we did find all this to be imaginarie and in that consideration and imagination wee did discend to the lower Center againe and thereupon conclude That whereas the Center is taken to be as a point of a great Circle and so all weightie things falling thereunto it may as well be a great Circle whereupon all other Orbes runne in circumference circularly Seeing that the earth and waters together make the perfect Globe as aforesaid and all weightie things may bee inclining to that Circle But this matter being not concerning Nauigation let vs returne againe to our obseruations That the maine Ocean Seas are common to all Nations as the passages are on the Land to bee nauigated for trafficke and commerce yet no one man can trafficke with any Nation without their consent Concerning the Art of Nauigation Mariners haue one great imperfection that is the want of exact rules to know the Longitude or Arkes Itinerall East and West without the which they can neither truely giue the place or scituation of any Coast Harbour Rode or towne nor in sayling discerne how the place they sayle vnto beareth from them or how farre it is distant whereby they are inforced long before they come to any Coast all night to strike sayle not otherwayes than if they were vpon it thereby losing the benefit of prosperous windes in sch sort sometimes that whereas keeping a true course they might haue beene quietly at road they are by contrarie and aduerse tempests carried farre off and so not without great charge to the Owner paine to the Companie and perill to their Ship are enforced to waste their time which of late yeares by some new Chartes and Instruments is in some part amended albeit the said Chartes are still described with straight Meridian lines running equidistant or parallel which is erronious and they suppose that running vpon any of their points of the Compasse they should passe in the circumference of a great Circle and therefore in the plaine Cardes describe those windes with straight lines which is another abuse For the Ship steming the North and the South onely maketh her course in a great Circle East or West shee describeth a parallel and being stirred on any other meane point shee delineateth in her course a Curue or Helicall line neither straight nor circular but mixt of both which supposition being well obserued betweene two different Angles of variation A very rare obseruation respecting the Latitude and conferred with some such third Angle of a Curue line euery degrees sayling or thereabouts will shorten their course of sayling that with like wind and weather they shall performe that in twentie foure houres wherein they spend aboue three or foure dayes and many times the voyage is thereby lost and ouerthrowne As I made Sir Francis Drake Knight to take notice of in the yeare 1587 and after that more sensibly to Sir Walter Rawleigh Knight CHAP. XXXV Of the distinct Dominions of the Seas PLato the Philosopher perceiuing that Equalitie would be the cause that euerie man should haue enough was of opinion and willed all things in a Common-wealth to bee common whom Sir Thomas Moore in his Vtopian Common-weale seemeth to imitate to the end that an infinite number of Lawes alreadie made and the making of so many new Lawes as daily are made might be abolished whereas all of them are not sufficient for euery man to inioy defend and know from another mans that which hee calleth his owne proper and priuate goods But finding afterwards that this Equalitie could not bee established and that many other inconueniences should arise thereby he did wisely reuoke the same in his second Common-wealth Renuntiation of goods in common For the same was neuer vsed in any age nor by the Word of God commanded when from the beginning he willed man to subdue the earth and rule ouer the fish Gen. 1.28 And againe after the Flood willing man to replenish the earth and for the better performance thereof scattering Mankind at the building of the Towre of Babel ouer all the face of the earth diuiding the Isles of the Nations into their seuerall Lands God being the Author of Nature as also of the diuision Insomuch that when Mankind was propagated to an infinite number of creatures and things vpon the earth not sufficient for their sustenance then of necessitie followed the vse of Trading vpon the Seas both for Fishing and Negotiation which could not be done if all things had beene common neither on Land nor vpon the Seas which thereupon became diuisible in places of fishing but not in the maine great Seas which is common to all Nations Iure gentium as in the precedent Chapter is declared not that the words intend any Law set downe by common consent of all Nations but onely denoteth vnto vs the example or custome of other Nations in sayling and trafficking ouer the Seas with commodities reared vpon the Land and by the Seas ioyning thereunto and not in the maine Ocean Seas where no fishing can be vsed whereby the properties of both Lands and Seas are distinguished by the said Law of Nations agreeable in this particular with the Law of God For the Moral Law prohibiting theft and the coueting of other mens goods By Diuine Law doth declare the said propertie And the Ceremoniall Law willing euery man to make sacrifices of his owne doth confirme the same The meanes which God hath appointed to make this distinction of the Dominions vpon the Seas are as certaine as the mensuration of the Land whereunto
the Sea is adioyning and in proprietie to bee esteemed accordingly taking their names of the Countries and Kingdomes adiacent or of their scituation as Mare Britannicum Mare Germanicum Mare Hibernicum and for scituation Mare Mediterraneum obserued by Cosmographers Historiographers and Mathematicians this is performed with the helpe of the Compasse counting of courses soundings colour of the grauell or sands and other wayes to designe Finitum ab ' iâ—finito By the Ciuile Law so farre as is expedient for the certaine reach and bounds of Seas properly apppertaining to any Prince or people wherein the Doctors of the Ciuile Law haue recorded excellent obseruations By the Law of Nation and Customes Baldus saith Vidimus de iure gentium in Mare esse Regna distincta sicut in terra Auda Ad legem 1. de ter diuisione In §. nullius in tratt de iâ—sula Bartolas doth in his opinion allow for princes and people at the sea-side Centum mitliaria which is one hundreth leagues of sea from their coast if they extend their protection so farre called by them Districtus maris territorium which is most plaine in those seas where the Isles of Garnesey and Iarnesey are so sensible and visible to the realme of England Visible Markes of Dominion or where there are such rockes or eminent marks as the Washes at the West seas thereof to which purpose Paulus a renowmed Ciuilian saieth That it is not needfull for him who would possesse himselfe of any land to go about and tread ouer the same but it is sufficient to enter in vpon any part thereof with a mind to possesse all the rest thereof euen to the due marches to be made apparant by the instruments of Geometricians And the like may be designed vpon the seas notwithstanding the soliditie of the one and the continuall flowing too and fro of the other This distinction of dominion hauing continued so many hundreth yeares needeth not to be corroborated with other proofe and arguments yet let vs note obiter That if the same were not distinguished as aforesaid Cases of ciuile Law or Admiraltie one borne vpon the seas should haue no countrie or nation to appeale vnto and a man dying intestate vpon the seas should minister occasion of question to know who should administer his goods and making of a Will how the same should be proued and executed by law without approbation of some Court or Iurisdiction whereas we find many Admiralls of the seas and their seuerall iurisdictions vpon the seas as deputies to their Princes or States who are alwaies absolute Commanders in their precincts according to the treaties and contracts made betweene Princes which are in the nature of lawes and inseperable of the said Princes right on the land concerning the possession of their Kingdomes or Common-weales as the fundamentall cause of their dominion wherein discontinuance of any part of their right cannot be pleaded against them The Kings of England neuerthelesse haue beene prouident and carefull herein for Historiographers haue recorded That King Edgar one of the Saxon Kings long before the Conquest made a suruay yearely of the foure great seas Mathew of Westm. and stiled himselfe lord thereof euen vntill Norway Ranulph Cestriensis and his progresse was most towards the North. It is also affirmed Anno 973. That the said King Edgar caused an inscription to be made vpon his Tombe for a monument calling himselfe Dominus quatuor Marea and as Papinian the Iurisconsult saieth In finalibus questionibus vete ra monumenta sequenda sunt Mare Britanicum But this for the dominion of the Kings of England ouer their seas Mare Hibernicum is not needfull For afterwards William Duke of Normandie after he had subduâ—d the realme of England by conquest Mare Germanicum caused himselfe not onely to be proclaimed King Mare Deucalidon but also that all the goods of the subiects were his and so caused the land to be diuided and yet was contented to change the title of a Monarchie by conquest into a Monarchie Royall and was also Lord of the said foure seas Io Bodinus de Resp. by the former assumpsit which had then continued 200 yeares and his progresse by sea was most Westward For when Princes or Kings do stile themselues by proclamation then the continuance thereof without opposition of other princes is holden and obserued as inuiolable and permanent Now King Henrie the second succeeding William the Conqueror Graftons Chronicle within one hundreth yeares did ioine Ireland to the crowne of England and did reduce Normandie and other places in France to the crowne taking as it were a new possession of the said seas and Henrie the first euerie yeare or within three yeares at the furthest crossed ouer into Normandie hauing taken Robert Duke of Normandie prisoner In the time of King Edward the third Chro. Malmesbuâ—e there was a disputation held with France concerning the fishing of the seas about Brittaine in which it was proued to belong to England Ioh. Hayward and thereupon Fraunce disclaimed therein By ancient records and Treaties c. as appeareth by the said King Edward the third his Proclamation yet extant Which arguments and contracts are as a law effectuall And here I must remember the singular care which the right reuerend father in God doctor Abbot now Archbishop of Canturburie A rare booke remoining with the Archbishop of Canturburie and Metropolitane of England hath had in procuring at his great charges for the good of our posteritie an excellent great Volume or Manuscript which was heretofore taken at Calice in France when the Spaniards tooke the same Anno 1596 and caried to Bruxels in the Low-countries whereof I haue had the perusall and made an Abstract of the Chapters of the same viz. The Treatie of Peace betweene Edward the third king of England and Iohn king of France for themselues and their eldest sonnes namely Edward the Blacke Prince of Wales and Charles Duke of Normandie Regent the French King his father being prisoner to the said King Edward which Treatie was made the eight of May 1360 in Britanie neere Chartres and confirmed at Calice whereupon sixteene Hostages were giuen to the King of England by the French King who was to come thither in person and to pay three millions of crownes for his ransome of two crownes to bee reckoned for an English noble called in King Henrie the eight his time Angell noble being some 750000 〈◊〉 sterling The ransome o' King Iohn of France The ship whereof vpon the one side did signifie the dominion of the seas whereunto old Chaucer the Poet did allude in Henrie the fifth his time This money was to be paied to weet six hundreth thousand crownes at Calice within 4 months after King Iohns arriuall there more foure hundreth thousand crownes within the yeare and so much yearely vntill the full paiment made
thirteene shillings and foure pence whereunto is added the auncient Custome heretofore paied by the Merchants of the Steele-yard or Haunce-townes being 14 pence so together 14 ss 6 d a Cloth besides the ouerlength of 3 d ¼ the yard The pretermitted Custome of Cloth which is of late comprised in the new Imposition of the pretermitted Custome for waighing of Clothes at two pence the pound so that a short Cloth paied in times past a noble and now tenne shillings besides the ouer-length according to the weight after the said rate of two pence for the pound all which the Merchant stranger payeth double Also whereas of late yeares since the Customes were letten to farme all Commodities as Sugars Spices Raisons of the sunne and others are weighed and thereupon the Tarra for the Caske or Chest is to bee allowed Allowance for Tarra or Cask and so the Custome is payed There ought good allowance to be made for the said Tarra because many commodities being vnladed and hauing taken the moisture of the seas increaseth the weight of their Caske so that Merchants pay many times Custome for that which they haue not by the strict dealing of Officers contrarie to equitie and justice if they doe not warily looke to their affaires wherein the Officers may also be excused Now to conclude touching Customes we must consider what they may amount vnto vpon the hundreth according to which Merchants are to cast vp their accounts for benefit and losse as aforesaid Custome The Custome in England called Parva Custuma was three pence vpon euerie pound that the commodities are rated in the Custome Booke which is paid by Merchants strangers now altered paying 6 d. Subsidie The Subsidie or Poundage is payed by all Merchants of what nation so euer which is 12 d vpon all commodities brought in And for Cloth exported 6 ss 8 d for English Merchants and Merchants strangers double Imposition The new Imposition established in the yeare 1608 is also 12 d vpon all commodities imported and vpon some commodities exported is limited so that Custome and Subsidie in England is 12 ½ vpon the 100 for Merchants strangers besides but leridge or scauage almost one pro cent more for goods inward and for English Merchants is ten vpon the hundreth Impost The Impost of Wines is limited vpon the Butt Pipe or Hogshed as by the Booke of rates with the Composition money and other dueties In Spaine and Portugall they take after diuers rates for commodities some â— 10 or â— â—â— and twentie fiue vpon the hundreth esteemed to be one with another vn quinto or â— â— part or 20 pro cent with the Alcaualla taken for Brokeridge to sell them In Barbarie seuen pro cent Alcaualla aboord The Turke taketh â…• part as the Aegyptians The Venetians take 3 5 7 and 10 vpon the hundreth with great aduisement and vpon the Manufactures of other nations 14 15 and more And the like is done in France to aduance the handie crafts man The Great Imposts demanded in the yere 1604 by Philip the third King of Spaine of 30 vpon the 100 of French English Great Imposts and Flanders commodities was soone abolished when the French king Henry the 4 did the like for one extreame enforcing another is of small continuance CHAP. XXXVII Of Merchants Wagers Stipulations or Conuentions FOr as much as diuers Ciuilians haue intreated of this arguments of Merchants Wagers and made some Treatises de Sponsionibus wherevnder matter of Assurances is comprised it may not be thought impertinent to handle this subiect briefly and diuidedly from Merchants Assurances alreadie declared in his proper place The said Ciuilians do distinguish these Wagers or Sponsiones to be threefold 1 Where a Wager is laied with a pawne in the hands of a third person 2 Where by way of Stipulation some thing is giuen vpon a Wager 3 Where a thing deliuered or by a couenant made with another person the same is promised to be restored and double treble and ten times the value thereof vnto the partie with whom the Wager is made if the matter in question or doubt do not take effect whereof many examples may be giuen and declared namely The Great Wager betweene Cleopatra Queene of Aegypt Examples of Wagers and Marc Anthonie for the great expences of a supper by dissoluing the Paragon Pearle and drinking the same as Plinie reporteth when Lucius Plancus was made judge of that Wager and pronounced that Anthonie had lost That of Cecinna whereof Cicero maketh mention for the recouerie of his grounds taken from him in hostile maner by Eubusius and restored againe That such a Cardinall shall be elected to be Pope That such a King is dead and such a town is taken in all which the Wager is made by Pawne Stipulation or Conuention as aforesaid and hereof are innumerable examples Hereupon they conclude That all Wagers laid must be for honest causes and as it were striuing for vertuous actions and that these by the law are to bee maintained in the performance of the Wager wherein custome is the best interpreter Custome the best interpreter of Law euen in the point of law which is considerable in all cases by the long obseruation of them A Wager being laid that the Pope of Rome or the Emperor or any other great personage shall die within the yeare Lawfull Wagers and vnlawfull is good in law but to lay Wagers as desirous or wishing some vnexpected euill or aduerse fortune vnto an honest man or although it were to an enemie is neither ciuile nor naturall in the vnderstanding of well disposed men A Wager laied vpon the death of a priuate person is disallowed but not for the contracting of any supposed or expected marriage which is lawfull All Wagers laied in lawfull games are allowable but in prohibited games cannot be recouered by the Ciuile law So Wagers made by lookers on vpon other mens games are disallowed which is the cause that Stipulations are made putting the pawne or money downe which is called to stake downe and if it be vpon an vnlawfull game then the lookers on are subiect to punishment as well as the gamesters A Wager laid who shall eate or drinke most is vnlawfull If a Gamester or a Merchant playing receiue twentie and promise to giue fiftie for it the next day playing the Conuention is good A Merchant laying a Wager to giue tenne for one if such a ship arriue within a limited time within such a Port or Hauen is good in law A Wager is laied vpon the arriuall of a ship in the port of Lixborne and a certaine summe of money promised thereupon it falleth out that the said ship is a Galeon so deniall is made to pay the money The Law did determine the money should be paied because the word Ship is a generall name although it be called by diuers names As a Notarie is called a Tabellion Scriuenor or a
for Merchants credits and reputation for that Merchant which in the storms of aduersitie sheweth to be a good pilot deserueth great commendation of the care and endeuours which he vseth to preuent the ship-wrecke of his reputation and credit especially with a good conscience which will be vnto him a continuall feast although the seas be turbulent for he is armed with patience and not destitute of comfort and on the contrarie those that like cowards become carelesse of their credit or being of an euill disposition seeke to defraud their creditors and to inrich themselues by their breaking paying little or nothing they do not onely deserue a name of defamation but ought to be met withall by some seuere punishment by the Law Seuerepunishment of Bankrupts It is not long since namely in the yeare 1602 that there was a Merchant at Roan in Fraunce who together with his sonne and a Broker had confederated to buy great store of merchandises vpon their credit of purpose to breake and to inrich themselues which being knowne made them to be apprehended and the court of Edicts did proceed criminally against them as theeues to the common-wealth whereof they were also conuicted and all three of them hanged in the market place obseruing that the reprehensiue Prouerbe Dat veniam Coruos vexat censura columbas was to be remembred To punish the small theft or litle theefe and to suffer the great theefe to escape which is vnreasonable The statute against Bankrupts The Statute of Bankrupts made and prouided by our law against Merchants and Citizens only was done to a verie good intent if it were executed accordingly with due consideration of the qualitie of persons and their behauiour But some can preuent the meanes of suing forth the same and so breake the strength of it as easily as a Spiders webbe whiles plaine dealing men are laid hold of that haue an honest intention to pay euerie man according to their abilitie present or future as God shall enable them for Vltra posse non est esse But these well meaning men are oftentimes hindred to performe their honest intentions by the hard and obstinate dealing of some of their creditors to the vtter ouerthrow of them their wiues and children and the generall losse of all the rest of the creditors these men therefore are to bee ouerruled by the Lord Chaunceller who may compell them to bee conformable with the other creditors according to the Customes of Merchants in other countries and there hath beene in times past during the Raigne of Queene Elizabeth Commission for the reliefâ— of prisoners a Commission granted vnder the great Seale of England for the reliefe of distressed prisoners in the prisons of the Fleet and the Kings Bench which Commission if it were renewed for the reliefe of the one and finding out of the other would worke much charitie and contentment to the subiects Howbeit to preuent these extreames is more commendable for many Merchants and Shopkeepers doe flourish and become rich againe if their creditors be fauourable vnto them and doe pay euery man to the full Therefore are the Letters of Licenses deuised amongst Merchants Letters of License giuen to debtors which are as a Pasport for the persons and goods of the debtors giuen by the creditors by way of couenant that they shall not for and during such a time or terme of yeares trouble or molest the persons and goods of the said debtors nor cause to bee molested arrested or troubled vpon paine and forfeiture of their said debts to be pleaded in Barre against them for euer as a full paiment of the same For the better encouragement and to retaine men in their duties The Custome of Merchants concurring with the course of the Ciuile Law herein Restauration of credit doth make a restauration of credit to those that pay their debts to the full notwithstanding their losses which they haue sustained and they may haue a publication made of it by way of intimation to all men vpon the Exchange or other publike places for a perpetuall remembrance to posteritie of their honest religious and commendable endeuours and behauiours to the honour and credit of their house kindred or good descent which is more especially regarded in Spaine A gentlemans priuiledge in Spaine where a Merchant or Cittizen being decayed in his estate and hauing payed according to his abilitie yea although hee doth not pay at all shall be freed from all arrests and troubles touching his person if he make proofe that hee is a Gentleman by birth which extendeth so farre that all Merchants Strangers may haue and inioy the like priuiledge vpon Certificate made by any that is Ambassadour and agent for their countrey who commonly will doe it vpon the verification of it by the Heraulds or otherwise which causeth men not to degenerate in vertuous actions although aduerse fortune playeth her Tragedie which they ouercome with constancie and magnanimitie The said Statute against Bankerupts is made vpon verie great consideration which lieth not against a Gentleman so that to call a decayed Gentleman a Bankerupt although he haue had dealing in the world beareth no action at the Common Law vnlesse hee were a Merchant or Shopkeeper c. Commissioners for the Statute of Bankerupts The Commissioners appointed by the Lord Chanceller vnder the Great Seale to execute this Commission of the Statute of Bankerupt must be Councellers at the Law ioyned with some Citizens or Merchants which are to seize of the partie which by the said Commission is proued to be a Bankerupt all goods debts chattels and moueables into their hands and to appoint one or two of the creditors to be Treasurer of the same which is afterwards to bee distributed by the said Commissioners vnto all such as they shall find and admit to be right creditors to the partie and with his priuitie and consent vpon such specialties bookes or accounts as they shall produce and be made apparant vnto them which must bee done within foure moneths after the date of the said Commission The contents of the said Statute For if it bee after the foure moneths expired they may exclude any creditor if they see cause so that the said distribution shall be done to those only which haue beene admitted within the said time according to their seuerall principall summes due vnto them without any interest for the forbearance since the specialtie was due or any forfeiture howbeit charges in Law expended for the debt shall be by them allowed according to their discretion So likewise is it in the discretion of the Commissioners to admit any creditor to come in where the partie was suretie for another if that partie be likewise decayed For it is vsuall for interest money that two or three are bound together and the collaterall Bonds which they giue each to other to saue harmelesse are to be considered both by the said commissioners and the creditors It is
and many dangers preuented And so euerie Ship in euerie such voyage may gaine quickely one hundred pounds that vsually carrie in her but twentie men more than now they doe by leauing of foure men there of twentie And as the proportion before named holds for leauing sixe men in New-found-land of thirtie so the allowing of men to be made proportionably fro euerie Ship An easie way for plantation will soone raise many people to be settled in euerie harbour where our Nation vseth to fish and in other harbours in other Countries in like manner some Ships by this course may then quickely gaine two hundred pound and some 300 ll and more according to their greatnesse more than they doe yearely now and those men so left will manure land for Corne saw boords and fit timber to bee transported from thence and search out for diuers commodities in the countrie which as yet lie vndiscouered and by such meanes the land will bee in little time fitly peopled with diuers poore handycrafts men that may bee so commodiously carried thither with their wiues and that no man else should appropriate to himselfe any such certaine place and commoditie for his fishing voyage except hee will in such manner settle a fifth part of his companie there to liue And then such aduenturers thither will carefully prouide yearely for such as they leaue there not onely for bread and victualls but likewise for all necessarie tooles fit for any kind of husbandrie And the charge thereof will yearely repay it selfe with the benefit of their labours that shall bee so left there with great aduantage By this meanes will shipping increase men be imployed and two voyages may be made yearely and much victuall saued for the allowance of victuall to maintaine sixe men to carrie them and recarrie them outwards and homewards is sixe Hogsheads of Beere and sixe hundred weight of Bread besides Beefe and other prouision which men as they sayle too and fro as now they vse doe little good or any seruice at all but pester the Ship in which they are with their Bread Beere Water Wood Victuall Fish Chests and diuers other trumperies that euery such sixe men doe cumber the Ship withall yearely from thence which men are to be accounted vnnecessary persons returning yearely from thence But being left in the countrey in manner aforesaid the places of these Ships which by them should haue been preoccupied may be filled vp yearely with good fish and many beneficiall commodities and the men so left in the countrey will not only be free from the perils of the Seas by not returning yearely but will liue there very pleasantly and if they be industrious people gaine twice as much in the absence of the Ships more than twelue men shall be able to benefit their masters that are kept vpon Farmes The fertilitie of New-found-land and that yearely for the fertilitie of the soile is admirable replenished with seuerall wholesome fruits hearbs flowers and corne yeelding great increase the store of Deere of Land-fowle and Water-fowle is rare and of great consequence as also many sorts of timber there growing with great hope of Mines and making of Yron and Pitch Furres may be procured not onely by taking the beasts but by setling in processe of time a traffick with the Sauages for their Furres of Beuer Martins Seale Otters many other things Finally the rocks and mountaines are good for seeds rootes and vines and the Climate is temperate seeing the greatest part thereof lieth aboue three degrees neerer to the South than any part of England doth which hath also mooued mee to write the said commendations of New-found-land by the affirmation made vnto me by the said Captain to the end all Merchants might further this intended Plantation whereby the fishing trade may bee much aduanced and the fish it selfe become more vendible which shall bee prepared by the inhabitants of the persons to be left there For it is well approoued by all those that yearely fish for Herrings Salt boyled to preâ—erue fish Cod and Ling that Salt orderly boyled doth much better preserue fish and keepeth more delightfuller in taste and better for mans bodie than that fish which is preserued with any other kind of Salt as in now done for want of conuenient houses to boile prepare the same yet may be done by the said Plantation But this being a matter depending thereupon I am now to intreate of the fishing trade more in particular in the next Chapter ending thus concerning Plantations whereby Princes dominions are enlarged for their honor and benefit also CHAP. XLVII Of the Fishing Trade SOme men may wonder and not without iust cause That this most important argument of Fishing hath not beene handled hitherto But in truth my meaning was not to haue touched the same because of the neglect of it in the Kingdomes of Great Brittaine and Ireland where the same is abandoned vnto other Nations howbeit vpon better consideration calling many things to mind I found that it would haue beene a great error to passe ouer the same with silence and to omit the Customes of Merchants therein as the fundamentall cause of the trafficke and trade of diuers Nations whose great wealth hath proceeded from the same For it hath pleased almightie God to extend his blessings herein more than in all other things created For when God said to the earth Let it bring forth Trees and Plants Gen. 1.2 c. 22 â— and for Fowles created out of the Sea Let the Fowle flie in the open firmament and of Cattle Let the earth bring foorth the liuing thing according to his kind He saith of Fishes in a peculiar phrase Let the waters bring foorth in aboundance euery thing that hath life and willed them to increase and multiply and to fill the waters which was the cause that the Prophet Dauid being rauished with admiration saith O Lord how manifold are thy workes Psal. 104. in wisedome hast thou made them all and the earth is full of thy riches so is the great and wide sea also wherein are things creeping innumerable both small and great beasts The earth is full but in the sea are innumerable Of the beasts of the earth the learned haue obserued Scaliger Bodin Caâ—dan and others That there be scarse 120 seuerall kinds and not much more of the fowlâ—s of the ayre but no man can reckon the seuerall kindes of the creatures of the seas or can number any one kind This ought to stirre vs vp to establish the fishing trade especially for Herrings Cod and Ling which tooke his originall from vs for it is not much aboue one hundreth yeares since that one Violet Stephens Originall of the fishing Trade and other discontented Fishmongers departed the Realme of England and went into Holland to the Towne of Enchusen where they procured the inhabitants to fish for them in the seas streames and dominions of Great Brittaine which inhabitants
haue placed Tin vnder the beneuolent Planet Iupiter experience hath prooued vnto vs that Tin is the poyson of all mettalls Sulphur is excluded which they say is of two colours being white and corrupt in the Siluer which therefore falleth away but red and pure in the Gold and therefore permanent These diuersities of mettalls being come to passe by accidentall causes is the cause that Art being Natures Ape by imitation hath endeuoured to performe that wherein Nature was hindered Whereupon Aristotle saith Facilius est distruere Accidentale quam Essentiale So that the Accidentall being destroyed the Essentiall remaineth which should be pure But this cannot bee done without proiection of the Elixar or Quintescense vpon mettalls Hence proceedeth the studie of all the Philosophers to make their miraculous Stone which I confesse is very pleasant and full of expectation when a man seeth the true and perfect transmutation of mettalls Transmutation of mettalls Lead and Yron into Copper the Ore of Lead into Quickesiluer or Mercurie with a small charge to a very great profit as it hath beene made for me vntill the makeâ— of it dyed within three moneths after he had made almost foure thousand pound weight as good as any naturall Mercurie could be and that in sixe weekes time To returne to our Philosophers concerning the Essence of Mettalls they haue beene transcendend in the knowledge thereof for they shew the generation of Sulphur and Mercurie in this manner The Essence of Sulphur and Mercurie The exhalations of the earth being cold and drie and the vapours of the seas being cold and moist according to their natures ascending and meeting in a due proportion and equalitie and falling vpon some hilly or mountainous countrey where the influence of Sunne and Moone haue a continuall operation are the cause of generation or properly from it is Sulphur and Mercurie ingendered penetrating into the earth where there are veines of water and there they congeale into Gold or Siluer or into the Ores of Siluer Copper and all other mettalls participating or holding alwaies some little mixture of the best or being in nature better or worse according to the said accidentall causes So that they doe attribute the generation to the operation of the influences of the Sunne and Moone where the Booke of God sheweth vs the creation of all things in heauen and earth and the furniture thereof The earth being the drie part of the Globe of the world did appeare and was made the third day containing in it the Ores of all mettalls and mineralls whereas the Sunne and Moone were created afterwards on the fourth day whose operation was incident to the things created but not before In like manner say they are Diamonds Rubies and other precious stones ingendred according to the puritie of the matter and the portionable participation of euery element therein Exhalations and vapours c. if the exhalations being subtile do superabound and preuaile ouer the vapours then hereof is Sulphur ingendred and if this subtile exhalation be mixed with the moist vapours and wanteth decoction as being in a very cold place it becommeth Mercurie or Quickesiluer which can indure no heat or fire at all The first mettall mentioned in the holy Scripture is Gold which was found in the riuer Pisson Gen. 2.11 Gold groweth running through the Garden of Eden into the countrey of Hauila where Gold doth grow and this was in the East according to which obseruation all the veynes of Mines runne from East towards West with the course of the Sunne as shall be more declared To this argument appertaineth the Philosophicall studie of Prima Materia Prima Materia vel Mercurius Philosophorum to be found out by experience for the great worke of Lapis Philosophorum by the operation of the Sunne in seuen yeares the practise whereof was made about fortie yeares since by a Germane Doctor of Physicke at Dansicke in the East countreys as I haue been informed by a friend of mine who was also a Physician and was done in this manner according to the bignesse of the bodie of the Sunne The body of the Sunne is 166 times bigger than the whole Globe being 166 times bigger than the whole Globe of the earth and water making the circumference of the world whereupon hee tooke 166 vialls or glasses wherein hee did put of all the Ores of mettalls and mineralls and other things which had any affinitie with mineralls and some of them mixed and calcined all of them and closing or nipping vp all the glasses by fire he did expose them to the Sun in an eminent place for and during the said time of seuen yeares and found thereby as it was reported Prima Materia which was reduced to seuen glasses howsoeuer it was certaine that he grew verie rich and bought aboue one hundreth houses in that Citie before hee died which was an occasion that my friend imitating him did likewise place not farre from London seuen glasses with calcined mettalls made of the ores of mettalls and minerals vpon a house top against the backe of a chimney where the repercussion of the Sunne did worke vpon them which was admirable to behold from six moneth to six moneths not onely by the sublimation of colours verie variable and Celestiall but also of the rare alteration of the Stuffe being sometimes liquid another time drie or part of it moist ascending and descending very strange to behold as my selfe haue seene diuers times from yeare to yeare some had beene there two three foure fiue and one almost seuen yeares the colour whereof had been yellow then white in the superficies then as blacke as pitch afterwards darke red with Starres of Gold in the vpper part of the glasse and at last of the colour of Oranges or Lemons and the substance almost drie Many were the questions betweene him and me but hee was confident that there was the Elixar howbeit very doubtfull that hee should neuer inioy the same and it came so to passe for after a long sickenesse he died of a burning Ague and a Gentleman gaue a summe of money to his wife for that glasse whereof I haue not heard any thing these seuen yeares In this glasse hee would shew mee the working of this quintescence according to the description of Ripley Lapis Philosophorum who he was assured had the Lapis and so had Friar Bacon and Norton of Bristoll Kelley had by his saying some little part to make proiection but it was not of his owne making The charge to make it was little or nothing to speake of and might bee done in seuen moneths if a man did begin it vpon the right day The twelue operations of Ripley he declared vnto me were but six and then it resteth for saith he all Philosophers haue darkened the studie of this blessed worke which God hath reuealed to a few humble and charitable men Ripleys twelue gates Calcination Dissolution and Separation
of these two Lords were like vnto Phaetons horses for all was set into a combustion and the poore men went begging homewards to our exceeding great losse of the benefits in expectation our Mines being richer than those of the West-Indies wherof I haue made and caused to be made many trialls of aboue twentie seuerall sorts of Siluer Ores The two Mines of Muggleswike and Wardall at Duresme containe sixe and eight ounces of siluer in the hundreth which being fallen in Siluer Mines at Duresme may with a reasonable charge bee brought in working according to the information which I tooke of the inhabitants there at which time I did intend to goe further into Lancashire to Slaithborne Mine Slaithborne Mine in Lancashire holding aboue foure ounces of siluer in the hundreth but being in the Winter time and the weather very foule I was diuerted not without discontent because it is the countrey where my ancestors and parents were borne The Siluer Mine at Combmartin in Cornewall Combmartin in Cornewall holdeth tenne ounces in the hundreth where Sir Beuis Bulmer did worke for a time which is deepe and ouerflowne with water but there are diuers branches of that Mine running many miles off spread into the earth and within these two years some Ore was sent me from Barnestaple of a branch of that Mine Mines of siluer by Barnestaple lying within one foot and a halfe of the superficies which vpon diuers trialls of one pound weight at once holdeth by computation aboue ten ounces of Siluer but little Lead for euery pound did produce aboue two penny weight in Siluer and is not difficult in the melting The partie in whose ground it is found will not haue it touched nor medled with fearing his grounds shall be spoiled and the Mine taken from him which is knowen aboue halfe a mile of one foot broad Howsoeuer I thought good to remember this for our posteritie for there may come a time that industrious men shall be more regarded It were also iniurious Siluer Mines of Scotland if I should not remember the Siluer Mines of Scotland especially that Mine which lyeth in the grounds of Sir Thomas Hamilton Knight Lord Aduocate of Scotland within eighteene miles of Edenborough towards the sea side discouered in the yeare 1607 by meanes of a Collier as I am informed In the report of the goodnesse of this Mine hath beene very great diuersitie according as they found the Ore of seuerall veynes as wee haue noted before for the blossome of Siluer Ore A singular good obseruation or the small veynes cannot giue true direction of the richnesse of the Mine which is the cause that the Spaniards in the West-Indies hauing found any veyne of a Mine they will pursue the same towards the East and seeke to find out as it were the Trunke or Body of the Tree which they call Beta saying Es menester siempre buscar la Beta de la mina Wee must alwayes seeke after the bodie of the Mine which may bee sometimes three or foure foot broad when the veynes are like an arme or finger and according to the triall made thereof they giue their iudgement not by the triall of the subtile assay but by some good quantitie and increasing their said trialls by some additements fit for the nature of the mettall Ore as they iudge the same to be For all diseases cannot be cured with one remedie in all persons although the disease be alike so may it bee said of those that make trialls of the Ores of mettalls for some trialls did report 80 pound of Siluer in one hundreth weight others 60 ll 40 ll 35 ll and 20 ll and then it fell into ounces which was more reasonable and naturall as I informed then some Priuie Councellor Triall of one tun of Ore by Sir Beuis Bulmer and the said Sir Beuis Bulmer whereupon it pleased his Maiestie and the Lords of the Right honourable Priuie Councell to appoint tenne Tunnes of the said Siluer Ore to bee brought into the Tower of London whereof one Tunne of twentie hundreth weight was indifferently taken and calcined or grinded together and thereunto were two Tuns of Lead added and commixed and afterwardes molten by a continuall fire and hand-blast of foure men according as I haue noted in writing And there was a cake of siluer remaining weighing 17 ½ ounces and the extraction out of the Lead was some foure or fiue ounces more so that it was reported to bee 22 ounces in the hundreth weight of Ore but the charge was great There was also another triall made by William Beale with a farre lesser quantitie of Lead and roasting the Ore and by Master Broad and others as Master Russell who refined the same with the flag of Lead others by Lead Ore to saue charges and they all found aboue 22 ounces of siluer in the hundreth weight of Ore And so did Sir Richard Martin Knight Master worker of his Maiesties Mint lately deceased who deliuered vnto mee at times 20 pound weight of the said Ore grinded shaddered and washed which I did send beyond the seas vnto an expert Mint-master and withall a particular of the manner of trialls which euery man had made here as also of the triall made by the Portugall with Quickesiluer who found 23 or 24 ounces his answere was That vpon his first triall hee found 42 ounces of the other lesse and that the ore was easie to be wrought but not by the meanes that all those men had vsed and with litâ—le charges and that the manner to refine with Quickesiluer was good for poore Mines of two or three ounces where the Ore had little or no Lead Colour of the Ore of Scotland and that the commixture of the Mine was very brittle and Bel-mettall and so did all the other Refiners affirme For the said Ore doth looke betweene white and blew for the most part and is like the Bell mettall found in good quantitie about Bristoll which is vsed to make some kind of Alkemie beyond the seas and this must bee allaied to qualifie the brittlenesse with some minerall of all which I haue made a record in my Booke of Collections Great quantitie of Siluer Ore In the moneth of August 1608 there came two ships before the Tower of London from Scotland laden with some 400 barrels of this siluer Ore in weight some hundreth tuns lading which were there landed deliuered vnto the Lord Knyuet Warden of the Kings Mint whereof 20 tunnes was taken promiscuously and grinded and afterwards also distributed vnto diuers Refiners and others and the triall of master Broad was best who found 28 ounces in the hundreth of Ore Of this quantitie Sir Richard Martin had three tuns whereof some was sent to my friend beyond the seas Interim these trialls and conclusions so differing brought the said Ore together with other proceedings into some disgrace whereupon according vnto commission giuen mee I
Mints beyâ—nd â—he Seas called the Generalls of Mints which did determine such and the like questions and controuersies arising between the Wardens and the Mint-masters which were men of great knowledge and experience in Mint affaires and had from the Prince large stipends giuen them for to attend these Mâ—nt businesses when the trialls of pixes or of the boxes are made and the Mint-masters make their accounts with the Prince Hereupon the said Assay-master according to his courteous behauiour was very well pleased to heare me as he said in fauour of Iustice and Truth And so I began to answere gradatim and articularly as followeth Drinking vp of the copple admitted First concerning the drinking vp of the copple albeit that it appeareth vnto me by certaine testimonialls made beyond the Seas by Generalls Wardens Mint-masters and Assay-masters that if a copple or teast be well made it drinketh not vp any siluer at all yet I will admit that it doth so because you are so confident that you can take it out of the copple or the most part of it and so I will proceed Two penny weight of copper acknowledged to be put in Secondly I do acknowledge that there is two pennie weight of Copper put into the melting pot as you say for it is commixed at twentie pennie weight which is a fâ—ll ounce where the standard requireth but eighteen pennie weight but this is done to counteruaile the wast of Copper which commeth by melting of Bullion remelting of the Brocage and Scizell and by working hammering often nealing and blaunching of the moneys whereby the moneys grow better in finenes than they were at the first melting because so much and more copper doth waste Wast of copper counteruadeth the copper put in and can it waste lesse than ten ounces in one hundreth weight No surely which is the cause that the red Booke in the Exchequer for Mint affaires admitted this two penny weight for waste which is but ten ounces in the hundreth And to say that this two penny weight of siluer is the cause that the Mint-master putteth in two penny weight of copper Vnequall proportion it carrieth not any proportion to put one for one when the mixture of the Standard is eleuen to one But you reply vnto me That the Mint-master is to beare all wasts and therefore must answere the same and be charged in account for it I answere That the accounts of all Mints are made only vpon the finenesse of moneys by their weights and that it was neuer otherwise vsed in England vntill this day All accounts are taken vpon the fine matter onely and if the Warden will bring a new manner of account than euer hath beene taken according to the Leidger Booke of the Mint and the Comptrollers Booke then the Mâ—nt-master is to be charged with euery thing in his proper nature siluer for siluer and copper for copper otherwise it were better for him not to put in any copper than to be made to answere siluer for it But the Mint-master must hold as well his allay as his fine siluer Allay to be kept according to the statute 2. H. 6. ca. 2. and in doing otherwise by not putting in of this two penny weight of copper the moneys would be too fine and the Master might incurre fine and ransome Therefore all Mint-masters doe worke according to their remedies and they do beare all wasts incident and casuall as if some ingots were falsified with copper within as hath beene found at the Mint the Mint-master must beare the aduenture of it Hazard of Mint masters for Princes will be at a certaintie which is the cause that the Mint-masters may commix at their pleasure thus farre as the sixteenth Article of the Indenture declareth That euery pound weight Troy shall bee in such sort commixed and melted downe that at the casting out of the same into ingots The Indenâ—uâ—e of Eliz Reg. xluj it shall be and hold eleuen ounces two penny weight of fine siluer and eighteene penny weight of allay euery pound containing twelue ounces euery ounce twentie penny weight and euery penny weight twentie foure graines according to the computation of the pound weight Troy of England which eleuen ounces two peny weight of fine siluer and eighteene penny weight of allay in the pound weight of Troy aforesaid The old right â—â—erling Standard is the old right Standard of the moneys of siluer of England and that the commixture of the Mint-master hath beene done accordingly so that it was found so at the casting out you best know what made the assayes thereof from time to time As for your Melting booke where the allay is entred if you will charge the Mint-master thereby let it be done distinctly for siluer and copper or allay in his proper nature as is said before and then the controuersie is ended Now let vs come to the Standard of the Base moneys made for Ireland I am sure there is not two penny weight of copper put in as in the sterling Standard Siluer taken out by diuision oâ— the standard of Base monies but there is two penny weight of siluer by computation taken out in euery quarter of a pound of siluer which as you say is eight penny weight of siluer in the pound weight why should the Mint-masters account be charged with this where siluer by the diuision of the proportion is taken out and two ounces eighteene penny weight are taken for three ounces from the fire as the Indenture declareth Shall a Mint-master commixe and melt by prescription or suffer other men to melt it for him and yet be made to answere for the finenesse of moneys according to an indented triall peece made of refined fine siluer as you say and receiue neither siluer answerable in finenesse nor the quantity which he ought to haue allowed him according to the Standard I am sure that in the making of these moneys Câ—eaâ— wast of copper there hath beene aboue fortie ounces of copper wasted in one hundreth weight of the moneys made thereof whereby the Bullion is growne finer that is to say These fortie ounces of copper being wasted haue left the siluer behind wherewith they were commixed at the first and so is the said whole masse or bullion so much finer and richer in the proportion which Arithmeticall distribution doth demonstrate vnto mee Demonstration Arithmeticall and in this ingot of course siluer may prooue it vnto you let vs suppose it weigheth 16 ll and containeth 4 ll of siluer and 12 ll of copper and so may we say it is the fourth part siluer if this ingot now should be made to decrease or diminish 4 ll of copper and so it should weigh but 12 ll and therein still containe all the foure pound in Siluer may not we iustly call this to be richer and say it is one third part of Siluer and yet there is no more Siluer than before
doe not spring the Teast must bee for double the quantitie of your course Siluer and accordingly you are to take more or lesse Lead to driue out three pound of Copper is twentie foure pound Lead requisite but is not to be put all at once then blow vntill the same doe driue off and the Siluer remaineth which take out suddenly c. * ⎠* CHAP. VIII Of the weight and finesse of Moneys and their seuerall Standards IT is now twentie yeares compleate since Thomas Lord Knyuet sir Richard Martin and diuers other Knights and Aldermen of the citie of London and master Iohn Williams his maiesties Goldsmith and my selfe were in Commission to consider of the Mint affaires of the Tower of London and of the causes of the transportation of the moneyes of the realme and of conuenient remedies to preuent the same The causes were obserued to besix whereof the Weight was the first next the Finesse of our standard then the Valuation of moneys and therein the proportion betweene Gold and Siluer fourthly the abuse of Exchange for moneys by bills wherein all the former were included for we all did set downe that the difference of Weight Finesse Valuation and Disproportion aforesaid According to our certificate were not of themselues true causes of Exportation if there were betwixt countries and countrie a due course holden in the exchange of money but that due course not being obserued then they might accidentally becauses And this course was the cause of the ouerballancing of forreine commodities increased by the immoderate vse of them and neglect to set the people on worke so that the remedie was wholly found to consist in reforming the abuse of Exchange whereof I haue handled at large in the third part of this booke for Exchanges Hereupon conferring the pound weight Troy of 12 ounces with the marke weight of eight ounces admitting one marke and a halfe for the said pound we found with France full three pennie weight ours to be heauier and the Low-countries and Germanie 2 ½ pennie weight or thereabouts with Scotland foure pennie weight and nine graines and alwaies heauier than any other This agreeth with an instruction declared in an old Booke concerning Mint matters in the time of King Edward 3 where it is demaunded What benefit it would be to the King and realme Ouer heauines of the weight Troy if the Troy weight of this realme and the Troy weight of Fraunce Flaunders Spaine and Almayne and of other realmes and countries were of equall weight and size For as much as other countries keep one size and weight whereas the Troy weight of England is heauier in euerie eight ounces by halfe a quarter of an ounce It is answered that the Merchant that brings in bullion doth loose so much and the calculation is made what it was for euerie hundreth weight both for gold and siluer and it followeth there Wherefore this is one great cause that so little bullion comes into the realme and therefore may it please the King to deuise some weight that should be correspondent to the weight of other realmes and call it by some other name than by the Troy weight And it is there thought meet that for information of Merchants and others a Kalender should be made and published A Mint Kalender to shew how much euerie pound weight ounce and pennie weight is worth that the true valuation of Gold and Siluer may be thereby perfectly knowne wherby Merchants and other persons shall giue honour and praise to the King and his Councell for Equitie and Iustice shewed in the Mint There hath been vsed from the beginning in the Mint both Troy and Tower weight Tower weight each of them containing twelue ounces in the pound weight sauing that the Troy weight is heauier by sixteen penie weight vpon the pound weight by which Troy weight the merchants bought their gold and siluer abroad and by the same did deliuer it to the Kings mint receiuing in counterpeaze but tower weight for Troy which was the Princes Prerogatiue gayning thereby full three quarters of an ounce in the exchanges of each pound weight conuerted into moneys besides the gaine of coynage which did rise to a great reuenue making of thirtie pound weight Troyes thirtie and two pound weight Towers which is now out of vse and the Troy weight is onely vsed Subdiuision of the pound weight Troy containing twelue ounces euerie ounce twentie penie weight euerie penie weight twentie and foure grains and euery grain twenty mites euery mite twenty and foure droicts euerie droict twentie periods euerie period twentie and foure blanks although superfluous but in the diuision of the subtile assay which in Scotland are all diuided by twentie and foure from the denier wherof they reckon twentie and foure to the pound Troy so twentie and foure graines Primes Seconds Thirds and Fourths all by twentie and foure And for the marke and pound weight of other countries I do refer the reader to the fourth chapter of weights and measures of the first part of this booke Concerning the pound weight for finesse and allay let vs note that these two make properly the pound weight as being distinguished therein for if it be one pound of fine siluer it weigheth 12 ounces and it is likewise 12 ounces fine Diuision of the pound Troy in finesse but if there be 2 ounces of copper in that pound then is there but 10 ounces of siluer and so called 10 ounces fine and so if there be 10 ounces 16 pennie weight of siluer and so called in finesse then is there one ounce foure pennie weight in copper and so for all other finesses accordingly The like is for the Gold whereof the said pound is diuided into twelue ounces or twentie and foure carrats being two carrats for one ounce and euerie carrat is diuided with vs into foure graines and finesse accordingly From this generall weight of the pound Generall weight Special weight is deriued the speciall weight of the peece according to the standard wherein after that the commixture is made for finesse the peeces must concur in value and thereby is the speciall weight knowne of the peece whereby the monyers cut their peeces The Sheire it being the direction for the sheire vnto them which peeces they cut by their weight deliuered them accordingly and herein they are to vse good and exact sizing to preuent the culling of moneys for the transporter or the gold-smiths for melting them for to conuert into plate Concerning the finesse of the moneys of other countries with their weight and number of peeces in the Marke of eight ounces which I haue reduced to the pound Troy of twelue ounces I haue here made a plain declaration as followeth to instruct all Merchants and Gold-smiths therein for the common good obseruing that some men not ouer wise in Mint affaires perceiuing the Marke to be diuided into 24 carrats for gold
haue spent time labour and no small charges in hope that hereafter it may do good to the publicke Pawne houses if some Diuine be moued to further it The first is according to the manner of Amsterdam to which end the substance of the petition of honest and religious men his maiesties subiects is as followeth First that authoritie be giuen to A. B. to erect Pawne-houses in all conuenient places of the realmes of England Ireland and the dominions of Wales for and during the terme of one and twentie yeres vpon these conditions That all person and persons shall and may haue at all conuenient times moneys vpon pawnes of or vpon all moueable goods chattels and leases or any thing which shall be agreed vpon after the rate of ten vpon the hundreth by the yeare That the vndertakers may be authorised or licenced to take for the attendance labour and paines recompence of Officers and Seruants wages house-rent and all other charges incident thereunto as followeth For registring and keeping of all pawnes that do amount to fiftie pounds or more one farthing for euerie pound by the moneth For all pawnes that do amount to ten pounds or more vntill fiftie pounds for euerie pound one halfe pennie by the moneth For all pawnes that do not amount to ten pound for euerie pound one pennie by the moneth For euerie bill giuen for pawnes vnder ten pounds one pennie and being of ten pounds or aboue whatsoeuer it commeth vnto but two pence with such clauses conditions and cautions as shall be requisite for the securitie of the said vndertakers and agreeable with the laws of the realm of England paying vnto the Kings maiestie a reasonable summe of money yearely c. The said allowances are inferiour to the moderation of the Emperor Iustinian his Lawes and will be found verie reasonable considering that by the tolleration of Vsurie politicke men can deliuer their moneys in verie great summes at ten in the hundreth freely and without such trouble CHAP. XIII Of Mons pietatis or Banke of Charitie THe second meane to suppresse the biting vsurie of extortion vpon the common people is by prouiding a course that they may haue moneys vpon pawne without paying any interest or vsurie for the loane of it according to the manner of Bridges in Flanders which is more pleasing but it is not so vniuersall as the Pawne houses are where great summes are to be had to accommodate Merchants and all men to preuent the generall abuse albeit it cannot be denyed but that the extortion vpon the meaner sort of people is more haynous and detestable which was the cause that by the Lawes of the Romans he that tooke vsurie of the poore was more punished than he that did steale from the rich as is before declared In Italie there are Montes pietatis that is to say Mounts or Bankes of Charitie places where great summes of money are by legacies giuen for reliefe of the poore to borrow vpon pawnes and to pay onely after three or foure in the hundreth at the most to maintaine the officers and to beare the charges of such an erected Mount for euer But the manner of Bridges as aforesaid may be thought more reasonable paying the officers out of the contributions which by their means may be much increased according to the orders which are hereafter declared Moneys to be giuen to suppresse vsurie for euerie man is willing to giue for the suppression of intollerable and abhominable vsurie The rich that are charitably disposed will giue because vsurie politicke should not be biting the meaner sort of people will be contributarie because of the commodiousnes of it for who will not giue six pence or twelue pence euerie quarter of the yeare when he may borrow a reasonable summe of money without paying any vse for it for one yere or a longer time according to occasions I am sure of most mens inclinations by an attempt made of the practise hereof some yeares since for after the names taken of aboue 1500 persons that were willing to contribute yearely and some Diuines and others that would lend freely 50 ll 100 ll or more for some yeares and some 500 ll I made an alphabetical register of them which was deliuered into the hands of a great personage who as it seemeth was not worthie of the honour thereof but to my remembrance it amounted to some 2000 ll for moneys giuen and to be lent and aboue six hundreth pounds yearely during the liues of the benefactors so that no man hath cause to doubt of the collection of a great stocke for so godly a worke if authoritie were had when this was done vpon the onely hope and surmise thereof to the effecting whereof I will be willing still to doe my best endeauour Now the orders are as followeth Orders to be obserued for the gouernment of the Mount of Charitie consisting of two houses within the citie of London and the suburbes thereof and one house at Westminster where all men may borrow moneys in small summes without paying any vse or loane for the same vpon pawne to be deliuered for caution or securitie of the said moneys according to the manner of Bridges in Flanders and other countries 1 IMprimis That all men of what qualitie or condition soeuer they be being destitute of money shall haue money at all conuenient times without paying any vse or loane for the same but deliuering onely a pawne of any moueable thing so it be not aboue fortie shillings at any one time vntill a competent stock be raised for the maintenance of the said Mount of Charitie for euer 2 Item Whereas the said stocke is raised and to be increased by meanes of charitable and conscionable persons which either do freely lend moneys without taking interest for the same or do freely giue in money and yearely contributions according to their vertuous dâ—sposition which moneys may in progresse of time amount to a notable summe the Treasurer generall therefore shall be a man sufficient and of honest behauiour carefull to appoint sworne honest men vpon sureties to collect the said moneys and for keeping of the pawnes with their Clarkes and other attendants and the Surueior of accounts shall be a man diligent and skilfull in accounts all for the better incouragement of the said charitable giuers and free lenders for the aduancement of this charitable worke 3 Item Whereas the like House called Saint George was heretofore erected at Genoua in Italie by noble Knights bound in honour to see the people relieued from oppression biting vsurie and extortion which by all vertuous Knights is at all times approued and commended There shall be kept one paire of tables in euerie house containing the names of such honourable persons and vertuous Knights ' as shall be yearely contributaries by quarterly paiments during their naturall liues or lend any summe of money gratis for a time together with the names of such well disposed persons as by
followers and subiects with better pay Worthie of perpetuall remembrance is that noble Prince King Henrie the seuenth Notable example of King Henrie the seuenth who in his singular wisdome and pollicie knowing how Princes are subiect to bee wronged by their officers in the disposing of their treasure by fraudulent and deceitfull accounts which either by ignorance or otherwise by conniuence do passe did himselfe with great facilitie take an inspection in all his Exchequer Accounts by an abstract of the said Accounts entred in a booke by some experienced and skilfull man in Accounts whereunto his highnesse did subscribe his royall signature before the Officers vpon good certificate made to the Lord Chauncellour could haue their Quietus est passe the great Seale of England And the faid King was pleased many times to enter into particular examination of some of the Accounts whereby he did strike a terror into the hearts of the officers so that they became more carefull and durst not commit any fraud or deceit by combination or tolleration but his treasure was duely administred and preserued This Signature of the Kings in the said booke is extant to be seene in his Maiesties Exchequer Prouidence of the French King Henrie the fourth Vrgent necessitie caused the late French King Henrie the fourth when he was King of Nauarre to be present in the disposing of his treasure in so much that afterwards in possessing the Diademe of all France and calling to remembrance his former obseruation by comparing things to their first principles he found that of euerie French crowne being sixtie soulz which his coffers should receiue there came not aboue the fourth part de claro vnto him Whereupon by rooting out of corruption deposing of needlesse officers profitable emptions of things necessarie and by wise disposing of them he brought è contrario three parts of euerie crowne vnto his coffers and did in progresse of time accumulate a verie great treasure and yet did he increase officers fees according to the alteration of time which by accidentall causes had made euerie thing deerer Factors Accounts Thus much obiter Now if a Merchant be also a Factor for others in the buying and selling of Commodities deliuering of Moneys at interest and by dealings in Exchanges and Râ—changes hauing factoridge allowed vnto him for the same according to the manner of Merchants some more and some lesse as they agree betweâ—ne them the difference in keeping other mens Accounts with whom they haue any correspondence is but small for if it be for goods or merchandises sold they will intitle the Account Goods of the Account of such a man do owe vnto Cash such a summe paied for Custome and Charges or if it be for goods bought he will do the like and discharge the Accounts by making the said Merchant Debitor or Creditor for it is as the said Accounts require which he doth also charge with factoridge or prouision for his sallarie and therfore all Factors keepe a particular Account to know what they haue gotten by factoridge or prouision at the yeares end and then they charge that Account with their charges and all such expences as they haue been at and the remainder is posted to Capitall as in the Account of Profit or Losse whereupon some others do bring their charges and expâ—nces and so carrie all the prouision to Capitall or Stocke Herein euerie man may vse his pleasure for this manner of Account affoordeth many distinctions all which seuerall branches or members of Account may be brought to make vp the the compleat Bodie for by the dismembring of an Account Dismembring of Accounts separating euerie thing in his proper nature you are inabled to find out many errours and intricatenes of Accounts by reducing the Bodie of it to his perfection In this place may be expected a declaration of the seuerall coynes or calculation of moneys wherein the Bookes of Merchants Accounts are kept beyond the Seas But because the same is founded vpon the seuerall exchanges betweene Countrey and Countreys I haue thought good to referre the same in the proper place of exchanges hereafter following and to conclude this Second Part of Lex Mercatoria with that notable question made by the Ciuilians A Question made by Ciuilians about Bookes of Account Whether a Merchant or a Banker keeping two Bookes of Account the one concerning the moneys of his Banke and the other touching trade of Merchandise for wares shall bee censured alike for such moneys as hee oweth vnto his Creditors So that the Creditors after his decease shall all stand in equall degree to be payed either in the whole or in part if the Bankers estate bee not sufficient for the payment thâ—rof Herein the Iudges of Merchants do make no difference but the Ciuilians haue made a great distinction therein and they say That the Booke of the Banke is more to bee credited than the other For saith Benuenuto Straccha the Booke of the Banke was kept publikely and the other as it were secret to himselfe so that the Creditors of the one are to bee distinguished from the other as being two negotiations and to bee dealt therein according to their seuerall natures and the meanes thereof extant with such considerations as may bee incident thereunto To declare my owne opinion I say That the Canon and Ciuile Law making no distinction in the payment of the Testators Debts betweene moneys owing for wares or for interest there ought not to be any difference in the nature of the debts in regard of the Bookes of Accounts * ⎠* The End of the Second Part. THE THIRD PART OF LEX MERCATORIA OR THE Ancient Law-Merchant concerning Exchanges for Moneys by Billes of Exchanges compared to the Spirit or Facultie of the Soule of TRAFFICKE and COMMERCE HAVING in the First and Second Part of this Booke intreated of the Bodie and Soule of Trafficke namely Commodities and Moneys Let vs now handle the predominant part of the course of Trafficke which is the Exchange for moneys by Bils of Exchanges for forrain parts compared to the Spirit or Facultie of the Soule For as moneys do infuse life to commodities by the meanes of Equalitie and Equitie preuenting aduantage betweene Buyers and Sellers so Exchange for moneys by Bills of Exchanges being seated euerie where corroborateth the Vitall Spirit of Trafficke directing and controlling by iust proportions the prices and values of commodities and money as shall be declared Many men cannot well discerne the distinction of the Spirit in sundrie matters because man consisting of Bodie and Soule that which belongeth to the Spirit is comprized vnder the name Soule but if they be willing to vnderstand the necessarie distinction heereof reason in the Theoricke Part will demonstrate the same in the Practike Part of this discourse of Exchanges Saint Paul in the later end of his second Epistle to the Thessalonians wished a sanctification to their spirits and soules 2. Thess. 5.23 and
North Starre Some Merchants are so farre wide from the knowledge of the value of coynes and the Exchanges made thereupon that they are of opinion That there can be no certaine Rate or Par of Exchange set to answere iustly the value of the coynes of forraine parts by reason of the diuersitie and disproportion of the coynes of Gold and Siluer and their intrinsicall and extrinsicall values But these Merchants are to vnderstand that the moneys of all Countreys haue a proportionable valuation relatiue within themselues according to their seuerall standards for weight and finenesse onely the smaller and baser coyne haue some little knowne aduantage which may bee considered of in Exchange Proportionable valuation of moneyes for Exchanges to be made accordingly if there bee cause that the quantitie of those moneys doe exceed the bigger and finer coyne This consideration hath beene had heretofore and especially in the Par agreed vpon between the Low-countreys and this Realme in the yeare 1575 when vpon the Philip Doller the Exchange was at twentie fiue shillings the Par and the small moneys would exceed twentie seuen shillings and vpwards but the quantitie did not surmount the better coyne The like was vpon the Par agreed vpon with the States of the vnited Prouinces Anno 1586 at thirtie three shillings foure pence and with Hamborough and Stoade to twentie foure shillings nine pence Lubish vpon the Rickes Doller of thirtie three shillings or nine markes foure shillings for our pound sterling of twentie shillings making foure Dollers and one halfe to answere the said Par which Doller is inhanced since to fiftie foure shillings and were receiue now but foure Dollers for the same and so for other places accordingly CHAP. III. Of the Denomination of the Imaginarie Moneys of all Places whereupon Exchanges are made by Bills THE Denomination of moneys which wee call Imaginarie is because there is not any peculiar or proper money to be found in Specie wherevpon the Exchanges are grounded as it was in times past in many places where some moneys were the cause to ground the price of Exchange vpon as our Angell Noble being coyned for sixe shillings and eight pence sterling whereupon Exchanges haue beene made as now is done vpon twentie shillings and so might the new peeces of our Soueraigne King Iames Laureat be taken But it is more proper to make Exchanges vpon the siluer coynes for the price of commodities is most ruled thereby in all places which by the quantitie is fiue hundreth to one Hence did proceed the cause that when our Gold in the yeare 1611 The price of Gold not so effectuall as the price of Siluer was aduanced ten in the hundreth aboue the Siluer the prices of commodities did not rise albeit forraine Nations did cause the price of Exchange to fall But if Siluer were inhanced presently the price of commodities would follow as the rule thereof and the price of Exchange would fall more for Exchange will ouerrule both In like manner do we call the moneys of other Countreys wherevpon Exchanges are made to be Imaginarie as the Dollers in Germanie the Crownes in France the Ducats in Italy and other places which by the great diuersitie you may vnderstand as followeth together with The Calculations of Merchants Accounts whereupon their Bookes of Account are kept according to their Imaginarie Moneys Pound Flemish IN Flanders Brabant and most places of the Low-countreys they keepe their Bookes of Account and Reckonings by twentie shillings Flemish euerie shilling twelue deniers or pence which shilling is six styuers In Artois Henalt Pound Tournois and other places by pounds tournois of twentie stiuers or fortie pence Flemish whereof six called guildren or florins make the pound Flemish in all the seuenteene prouinces of the Netherlands Some do reckon by pounds Parasis which are but twentie pence Pound Parasis whereof twelue make the pound Flemish but their accounts as also the reckonings of their Prince or Finances are kept by pounds Tournois which pound they diuide into twentie shillings euery shilling into twelue pence and the like is done by the pound Parasis and these haue also their subdiuisions of Obulus Maille Heller Hallinck Corte Mites Point engeuin Poot and such like copper moneys too tedious to rehearse In Germanie in the yeare 1520 Gold guilder was the gold guilder coyned for a generall coyne and valued in Holland for twentie eight stiuers which is now in specie at double the price neuerthelesse they do continue to buy and sel all that great quantitie of corne which is brought from the East countries Poland and other places by the said gold guilder of twentie eight stiuers Their doller was coyned at sixtie fiue Creutzers since risen to seuentie two Creutzers Creutzers yet their Exchange is made vpon the doller of sixtie fiue Creutzers which is imaginarie At Augusta the Exchange is made vpon the said doller of sixtie fiue Creutzers at three weeks or foureteene daies sight after the bill presented At Frankford they reckon by the guilder of sixtie Creutzers Florins of 60 Creutzers called in Latine Crucigeri being peeces with a Crosse they are Florins and their Exchange is made vpon the doller of sixtie fiue Creutzers payable in the two yearely Faires or Marts the one the weeke before Easter and the other in the beginning of September to continue for all the moneth At Norenborough their Exchang◠〈◊〉 made vpon the said doller of sixtie fiue Creutzers and many times vpon the Florin of sixtie Creutzers which they also diuide into twentie shillings and euerie shilling twelue pence to keepe their accounts by For Bohemia Bohemicos Exchanges are made vpon the doller of twentie and foure Bohemicos At Vienna they reckon by guilders or florins of eight shillings of thirtie pence to the shilling two Heller to the penie and Exchange is made thereupon At Bauiera by guilders of seuen shillings of thirtie pence Diuers guilders for Exchanges and Accounts In Hungarie by guilders of ten shillings of thirtie pence and by florins of twentie shillings and twelue pence to the shilling and Exchanges are made vpon their ducat At Breslo and Leypsich they reckon by markes of thirtie and two grosses of twelue heller to the grosse Markes of 32 grosses and they Exchange by thirtie florins Breslowes to haue at Vienna thirtie and foure florins or at Norenborough thirtie and two florins Pounds of 20 shillings 12 hellers c. At Vlme they reckon by pounds of twentie shillings and twelue heller to the shilling and their Exchange is is made vpon the doller of sixtie creutzers At Colloigne by dollers of seuentie two creutzers for Accounts and Exchanges Pound sterling At Embden they reckon by guilders and Exchange vpon the rickx doller but from London thither and hither vpon the pound sterling of twentie shillings Markes of 16 shillings At Hamborough they account by markes of sixteene shillings
eightie aspers euerie asper is ten Macharines At Alexandria in Aegypt they account by ducats There is ducat de Pargo making three ducats of Venice Ducat de Pargo also Italian ducats of thirtie and fiue maids and the Venice ducat is better and maketh fortie maids Marke Scots At Edenborough in Scotland Exchanges are made vpon the marke peece of siluer which is valued in England at 13 ½ pennie being otherwise 13⅓ pennie or thirteene shillings foure pence Scots So one marke and a halfe Scots is twentie shillings Scots and twentie pence sterling is one pound Scottish Pound Scots which is twelue to one The 18 peeces of twentie shillings is by the said Valuation twentie shillings three pence and the Taker vp of the money at London payeth for twelue pence the said marke of 13 ⅓ pence at two or three moneths Time in Scotland as they can agree Pound Irish. At Dublin in Ireland the fifteene shillings sterling is one pound Irish of twentie shillings whereupon Exchanges are made with allowance of sixe pence or eight pence vpon euerie pound payable at London and for want of a Mint no Bullion is imported thither and Exchanges are diuerted into other parts At London all Exchanges are made vpon the pound sterling of twentie shillings and twelue pence to the shilling for Germanie Pound sterling the Low-countreys and other places of trafficke and for France vpon the French Crowne for Italy and Spaine and other places vpon the Ducat or for the Doller and Florin in some places according to the Custome of the place Whereof more particularly is to be obserued in the course of Exchanges CHAP. IIII. Of the Times of Payment of Moneys by Exchange and the Termes of Art vsed therein THE discrepance of Time for the payment of moneys by Exchange hath a regard to the distance of the place or places where the money is to bee payed wherein we may consider three kindes of diuersities called by the Termes of Art in matter of Exchange at Sight Vsance and double Vsance or treble The taking and deliuering money at Sight At Sight bindeth the Taker vp of the moneys to giue his Bill of Exchange directed vpon his friend Factor or Seruant in any place beyond the Seas to pay vpon Sight of it or within three foure or more dayes so much money as hath been taken vp by him after such a rate the Pound Doller Ducat or Crown as is agreed vpon betweene them in forraine coyne either according to the Valuation of monies or currant money for merchandise which is more ordinarie because Merchants will admit sometimes to receiue some coynes at a higher rate than they are valued vpon occasion that some Species are required for transportation or some other vse to make paiments Policie of Estates which tolleration is by authoritie many times suffered to draw moneys vnto their places of jurisdiction Heerein is to be noted That if the Bill be made payable at so many dayes Sight that the number of dayes must bee expressed in the Bill or Bills for commonly there are made three Bills of one Tenor for euerie summe of money taken vp because if one Bill bee lost the other may serue in place The second Time of payment called Vsance At Vsance which is either the Time of one moneth two or three moneths after the date of the Bill of Exchange as heereafter is declared according to the Custome of the places where these Exchanges doe runne according to which Time the partie vpon whom the Bill of Exchange is directed is to pay the same vnlesse there be good cause to the contrarie as shall appeare hereafter Double Vsance and treble Vsance The third Time of paiment called double Vsance is either two or more moneths or alwayes double the Time of the Vsance respecting by Custome the course thereof and many times Exchanges are made vpon the halfe Vsance which is fifteene dayes But considering the wind and other hinderances it is better to limit the dayes after Sight in the Bill of Exchange and to send the same by Sea and Land with a Letter of Aduice which the Taker of money commonly doth deliuer with the Bill of Exchange whereunto the Bill maketh also relation and treble Vsance is accordingly Payments in Faires or Marts There is another Time for the paiment of Exchanges where great payments are made as in Faires or Marts as at Madrill and Medina del Campo by three Ferias in the yeare at Lyons by foure payments yearely and at Frankford twice euerie yeare c. The difference of the times of payment doe alter the price of Exchanges according to the Time commonly after twelue fifteene or twentie in the hundreth by the yeare So betweene the pound sterling Exchanged for the Low-countries at Sight and Vsance is betweene foure and fiue pence and double Vsance and Vsance sixe or seuen pence which ordinarily was accounted to bee but foure pence after 10 pro 100. But for the Faires and Marts it is verie vncertaine because the payments are all at one Time and the neerer the Faires are at hand Consideration in Exchanges the more shall the Taker vp of the money saue by paying lesse interest because he hath not had the vse of the money from the beginning that Exchanges were made for the Faires which in questionable matters is verie considerable Vsance from London to and from Middleborough Amsterdam Antuerpe Bridges and other places in the Low-countreys is one moneths Time from the date of the Bill of Exchange and double Vsance is two moneths Vsance for Hamborough is two moneths and for Venice three moneths Vsance from Antuerp to Rome is two moneths and from Lyons to Rome one moneth Vsance from Antuerp to Venice is two moneths to bee payed in Banke Vsance at Florence is two moneths and from Florence to London three moneths Vsance from Genoa to Rome and Naples is ten dayes Sight and for Palermo and Antuerp is two moneths by ordinarie obseruation and so is Luca From Naples to Antuerp is two monethes and the like for Palermo Vsance for Roan and Paris is one moneth but commonly at three weekes Sight From Antuerp and London to Seuill is two moneths Castile payments are in three Bankes and Ferias de Villalon Medina del Campo and Medina del Rio Sicco but many times prolonged by the King of Spaine Vsance from Lixborne to London and Antuerp is two moneths which Merchants are to know because the Bills of Exchanges doe not declare the same CHAP. V. Of the Nature of Bills of Exchanges THE Nature of a Bill of Exchange is so noble and excelling all other dealings betweene Merchants that the proceedings therein are extraordinarie and singular and not subiect to any prescription by Law or otherwise but meerely subsisting of a reuerend Custome vsed and solemnized concerning the same For the better declaration whereof let vs set downe the forme of a Bill of Exchange from
according to the said customes if he be a substantiall man of credit and reputation for although the said C. D. was the first deliuerer of the money vnto A. B. by the thousand ducats for Venice and might alleage that hee receiued no money of him but a Bill of Exchange for Venice whereof hee had no aduice whether it were accepted or not yet such is the precise and commendable Custome vsed in Exchanges that hee may not stand vpon any euasions or allegations which might interrupt the said course without manifest discredit vnto him vnlesse there were cause of doubt that the Bills of Exchanges of A. B. should not bee accomplished at Venice neither may A. B. without discredit countermand the payment of the thousand Ducats at Venice vnlesse there were iust cause to call the credit of C. D. in question For the manner of these Exchanges are vsuall in all the places of great Exchanges as Lyons Bizanson Madrill and Venice where the most standing Bankes are and where they doe get money ingeniously by the calculation vpon their payments at the Faires or Markets by intermissiue times either twice or thrice within the yeare in regard whereof and to auoid this obseruation in that strictnesse they haue vsed to say in their Bills of Exchanges Per la Valuta Cambiata for the value exchanged with such a one The value of money exchanged and not for the value receiued as aforesaid because they make their paiments as it were all at one time which is otherwise in those places where no Bankes are kept or may be also in some of these places if the money be payable without the Banke as we haue noted before Many Merchants trafficking onely in Exchanges become good obseruers and as ingenious as the Bankers themselues according to the Adage Fabricando fabri fimus whereby they know the variation of their Compasse and the points to direct their course by obseruing the Accidentall causes of great payments of moneys to be made in some places and of imployment to be made vpon commodities in some other places or the scarcitie of money for some places and the plentie for other places or the generalitie of both calling it as the Spaniards say La placa eâ—â—a larga lo estrecha The exchange or place is streight or plentious so that those Merchants running with the streame can make their Exchanges beneficiall vnto themselues and that without Stocke or Capitall of their owne but meerely by taking vp money for one place and deliuering the same for another place at an vndervalue in the price of Exchange sending many times the moneys in specie which haue beene taken vp by Exchange when the same doth yeeld more than the price at which they tooke vp the same as in our precedent Treatise hath beene declared more amplie This orderly course of payment or satisfaction to be made for Bills of Exchanges doth admit no rescounter or stoppage but voluntarie Rescounter in Exchange is voluntarie that is to say If I owe you one hundreth pounds by a Bill of Exchange by mee accepted and within three or foure dayes you shall owe mee the like hundreth pounds for another Bill of Exchange by you accepted I cannot rescounter these payments to answere each other vnlesse you condescend thereunto although the money were due to be payed but euerie Bill of Exchange is to bee answered and payed in his proper nature For let vs suppose that some countermand be made by him that caused this money to be made ouer vnto you before you were to pay the said Bill which for some causes you are to conceale for a time you are for all that to be payed of your hundreth pounds or the diligences which are requisite to bee done herein are both wayes to be obserued accordingly But when it is done by voluntarie consent and agreement then is it questionlesse for Voluntas est mensura actionum Will doth regulate actions c. The Will doth regulate the Action and if any Factor doe the same for another mans account without commission he shall be answerable for it as before is declared in the Title of Factors and Seruants and the Commissions giuen vnto them For the better explanation of Exchanges for moneys taken vp for one place and deliuered againe for another place let vs obserue this example Tenne thousand Ducats were taken vp at Antuerp for Venice at Vsance of two moneths at seuerall prices of 113 ½ pence 114 pence and 115 ½ pence for the Ducat being the Medium or one with another at 115 pence made Flemish money R. 4791 13 4 These R. 4791 13 4 Example of Exchanges and Rechanges of moneys were made ouer for London at Vsance being one moneth at diuers prices whereof the Medium was 32 shillings foure pence and made 2875 ll 0 ss 0 d These R. 2875 sterling being receiued and Factoridge Brokeridge and port of letters deducted remained 2860 ll which were made ouer for Antuerp againe at seuerall prices and the Medium was 34 ss 2 ½ d. 4894 ll 15 10 The tenne thousand Ducats at Venice were taken vp for Frankford at 130 Florins of 65 Creutzers for 100 Ducats wherunto Factoridge and Brokeridge added it amounted to 13130 Dollers or Florins of sixtie fiue Creutzers and with Brokeridge and Factoridge at Frankford was Florins 13260 Flo. 0 ss 0 d The 4894 15 10 Flemish receiued in Antuerp were made ouer for Madrill in Spaine at diuers prices whereof the Medium was 106 pence for a Ducat of 375 Maluedeis to bee payed in Banke at foure moneths time with fiue vpon the thousand and made Ducats 11132 Duc. 12 ss 6 d These 11132 Ducats twelue shillings six pence of a Ducat were made ouer from Madrill to Lixborne in Portugall and deducting Factoridge and Brokeridge there remained 11010 Ducats of 440 Reas for euerie Ducat of 375 Maluedeis or 11 Ryalls is 4844 U 620 Vlas and Ducats 12111 Duc. 11 ss 0 d These 12111 Ducats or Crusats of Lixborne made ouer to Antuerp Factoridge and Brokeridge deducted remained 11990 Ducats at 98 pence Flemish euerie Ducat or Crusat was Flemish R. 4895 18 4 The 13260 Florins of Frankford taken vp for Antuerp at 81 pence R. 4530 10 0  R. 365 8 4 These moneys payed Brokeridge and Factoridge for Venice and deliuered for London and for Madrill 38 2 4 which must be deducted R. 38 2 4 So there was aduanced by industrie with other mens moneys R. 327 6 0 CHAP. IX Of the Feats of Bankers performed by Exchanges WEE haue in the First Part of this Booke made a description of Bankes and Bankers in regard of the payments and Exchanges made in Bankes for commodities bought and sold and hauing in the precedent Chapters declared the foure manner of Exchanges and the merchandizing Exchange by denomination of it to be the canker of Englands Common-wealth let vs now intreat of the Feats of Bankers Some men of iudgement haue found my writing
rate according to which calculation the said Royall of eight is by vs receiued at fiue shillings and two pence which is but foure shillings 2 ½ pence or thereabouts The difference is fifteene vpon the hundreth in lesse than two moneths time adde hereunto the ten in the hundreth to be had by the said Royalls of eight that the same are better in weight and finenesse than our six pence sterling which is taken to answere the said Royall by a common calculation by reason whereof there will be giuen so much in his maiesties mint or thereabouts that is to say foure shillings and fiue pence or at the least foure shillings and foure pence ½ after the rate of fiue shillings sterling for an ounce of that standard so together is twentie fiue vpon the hundreth benefit A treatise of Free trade 1622. which caused a Merchant aduenturer to set downe in print an interrogation in this manner Who will procure licence in Spaine to bring Realls into England to sell them here at tenne in the hundreth gaine which is lesse than the Exchange from thence will yeeld when he may haue for the same 25 in the 100 in Holland A matter whereby Merchants are easily induced to diuert the said Royalls from the realme to those and other countries and by the common vnderstanding to remedie the same it is thought there is no meanes to meete with forreine nations in the inhancing of moneys but wee must doe the like albeit experience hath shewed long since that this is not effectuall nor any true remedie Now if we will consider things according to the rule aforesaid it will plainely appeare that the said fifteene vpon the hundred gaine more than in England are but imaginarie if the Exchange for moneys were reformed for let fiue of these Royalls of eight bee bought in England for twentie two shillings and be transported into Holland and there buy commodities with the same which is according as the price of them is inhanced for as the money riseth in price so doth the price of commodities it may fall out the said Merchants should become losers by the commodities so that the same cannot be termed Causa mouens But the Spanish Merchants which cause their Royalls to be sent into Holland or Zealand from Spaine or from the Downes relye wholly vpon the Low-Exchange whereby they are inabled to deliuer there their money by Exchange at an vndervalue at thirtie three shillings foure pence Flemish and vnder for our twentie shillings sterling whereby the Kingdome maketh good vnto them the said fifteen vpon the hundreth consisting betweene the price of fortie two stiuers and fiftie one stiuers which is almost eighteene pro hundreth If the Royall went but for fiftie stiuers according to the valuation so that if the Exchange were made accordingly which would be aboue thirtie seuen shillings six pence this gaine would not be at all and moneys would be imported vnto vs and not exported For the rule is infallable A Maxime in Exchanges That when the Exchange answereth the true value of moneys according to their intrinsicke weight and finenesse and their extrinsicke valuation they are neuer exported because the said gaine is answered by Exchange which is the cause of transportation To make this euident in the Rickx Doller which is the maine and most vsuall coyne in Germanie Eastland the Vnited and Reconciled Low-countreys before their late Proclamations and currant in many other Countreys obserue wee that the said Doller was valued at two markes Lubish A shilling Lubish and a stiuer Flemish was all one 1575. euery marke being sixteene shillings Lubish or sixteene stiuers For in the yeare 1575 the said Rickx Doller was still coyned in the Empire for thirtie two shillings or stiuers and so currant by valuation in the Low-countreys whereby they were all one in denomination and effect But the wars in the Low-countreys hath beene the cause of the inhancing of this Doller which was brought to thirtie fiue stiuers and in the yeare 1586 to fortie fiue stiuers or to fiftie two stiuers now by intermissiue valuations and times Howbeit at Hamborough Stoade and other places in Germanie the said Doller did remaine still at thirtie two shillings Lubish or two markes and as the said Doller did inhance in price so did they in the Low-countreys coyne new stiuers accordingly sometimes lighter in weight A great Fallacie and at other times imbased by Copper or Allay and yet in account the stiuer did and doth remaine the ground of all their moneys but the said Doller holdeth his standard agreeable to the first Doller called the Burgundian Doller with Saint Andrewes Crosse coyned in the yeare 1567 which is in finenesse ten ounces twelue pennie weight of fine Siluer and foure and one halfe of these Dollers were made equiuolent to our twentie shillings sterling as a publike measure betweene vs and the Low-countreys Germanie and other places where this Doller went currant as you may obserue in the precedent Chapters These Dollers haue since beene imitated and made by the States of the Vnited Prouinces in their seuerall Mints altering onely the Armes of the seuerall Prouinces as also by the Arch-Duke Albertus in the reconciled Low Prouinces and the price of them at Hamborough Stoad and other places was but aduanced to one stiuer or shilling Lubish more that is to say at thirtie three shillings Lubish went the same went in the Low-countreys for fortie fiue stiuers which made the diuersitie of the said Par of Exchanges of thirtie three shillings foure pence for the Low-countreys and twentie foure shillings nine pence for Hamborough In the Netherlands being all one in substance This Doller is since that time as I said inhaunced to fiftie two stiuers in the Low-countreys which maketh the price of Exchange aboue thirtie eight shillings or rather thirtie nine shillings and shall the Kingdome suffer this and not alter our price of Exchange accordingly but be contented to take thirtie foure or thirtie fiue shillings and after that rate vndersell all the commodities of the Realme In Germanie This Doller is likewise since that time more inhaunced in Germanie from time to time And leauing the excessiue valuation in remote places let vs note the valuation of Hamborough where it hath beene at fiftie foure stiuers the Doller which maketh the Exchange aboue fortie shillings of their money for our twentie shillings And although we haue raised our price of Exchange from twentie shillings nine pence to thirtie fiue shillings and thereabouts shall we rest here and goe no further Haue we reason to doe it in part and not in the whole according to Iustice Equitie and true Policie and shall we be like a man that by halting in jeast became lame in earnest Absic ignorantia The moneys in Christendome which haue their ebbing and flowing doe shew their operation vpon commodities The course of money and Exchange are contraties in operation maketh by
they agree to reckon the moneys in Exchange but at thirtie shillings Flemish for twentie shillings sterling and so make returne each to other from time to time as moneys shall bee receiued both heere and beyond the seas Whereupon put the case that there is receiued at Amsterdam one thousand and fiue hundreth pounds Flemish for Cloth and at London there is receiued one thousand pounds sterling for Veluets and Silkes which according to the said computation is all one in effect betweene them and might by way of rescounter answere each other in account But the Merchant of Amsterdam knowing that by reason of the inhauncing of the moneys there he can make a great gaine to haue the said one thousand pounds to be sent vnto him in specie he desireth the Londoner to send vnto him this one thousand pounds sterling in siluer or gold coynes Royalls of eight or Rickx dollers whereby he shall profit fifteene vpon the hundred by the meanes aforesaid which amounteth to one hundreth and fiftie pound gaines Now the Londoner hauing his one thousand and fiue hundreth pounds Flemish or one thousand pounds sterling at Amsterdam cannot do the like because the money by the said inhauncing is receiued there aboue the value so that his money must be deliuered there by Exchange at thirtie three shillings foure pence or vnder wherby he receiueth here the said 1500 ll Flemish with no gaine at all Thus the account is made euen betweene them but by these meanes the kingdome is depriued of the 1000 ll of the Merchants money sent to Amsterdam which doth not onely procure want of our moneys but causeth also the natiue commodities to be vndersold and the forreine commodities to be aduanced in price beyond the seas by plentie of money there and hindreth the importation of bullion To preuent this the question is now Whether it be better and more expedient to raise the price of Exchange or the valuation of our moneys Surely all men of iudgement will say That the raising of Exchange breedeth not that alteration which the inhauncing of moneys doth to make euerie thing deere and to cause landlords and creditors to loose in their rents and contracts And Merchants of experience do know that wee cannot do as they do for the inhauncing of our moneys here will be countermined by other nations who still will vnderualue them in Exchange betweene vs vnlesse it be preuented by our owne true valuation to be made known as aforesaid The Author of this Treatise of Free trade doth say That it is not the rate of Exchanges Page 104. but the value of Moneys heere low elsewhere high which cause their exportation nor do the Exchanges but the plentie and scarcitie of moneys cause their values which is meerely Histeron proteron whereunto I haue answered heretofore viz. Three waies to dissolue an argument There are three waies to dissolue an argument Deniall Retorting and Distinction Deniall is too hostile sauouring more of obstinacie than of Art Retortion is more wittie than profitable but Distinction is like mature remedies compared to Purges which clense and feed but the said Authour did take the course of Deniall and proueth nothing touching the matter in question Exchange compared to to the Affaies o◠money If moneys be here low and elsewhere high how is this knowne but by the valuation of Exchange considering the diuersities of moneys of seueral standards wherein the Exchange is like the Assay whereby the finesse of gold and siluer is knowne grounded vpon the quantitie which the Exchange requireth according to the weight of fine siluer gold contained in the moneys of each countrie which is the intrinsick value not according to extrinsicke valuation which is altered by denomination for the name of a thing doth not alter the value really but the substance doth it if it be altred much lesse doth plenty or scarcity of monie cause their values it being contrary to the nature and propertie of money the yeard doth measure the cloth but the cloth doth not measure the yeard To illustrate the premisses by example I haue heretofore shewed the consideration incident Suppose that some Merchants strangers doe come ouer into the Realme to buy a packe of tenne clothes valued at 80 ll sterling which they are to pay in gold and siluer and they doe not know the weight and finenes of their forraine coyne which they haue brought ouer heereupon to content both parties the moneys on either side must be tried by the subtle assay according to their finenes computated vpon the pound weight of twelue ounces Troy and then by weight they answere each other accordingly And so this negotiation is in effect but a permutation of moneys for commodities before Exchange was inuented Hetherto we haue handled of the reformation of Exchanges for places where the Basis of Exchange or foundation is made vpon our twentie shillings sterling that is to say When Merchants beyond the Seas deliuering moneys there for England will cause the Brokers of Exchanges to know how much Flemish or Hamborough money Merchants will giue there to haue twentie shillings sterling payed in England euen as wee doe here to know how much in Flemish money or other coynes a Merchant will giue for the said twentie shillings here Exchanges which are made vpon forrain coyne by an agreement to bee paied beyond the Seas by Bill of Exchange But now we are to intreate of the reformation of the Exchanges which are made vpon forraine coynes or rather imaginarie moneys of other countreys as for France vpon the French Crowne of sixtie soulz for the East countreys vpon the Florin Polish for Germanie vpon the Rickx Doller of seuentie two Creutzers for Venice vpon their Ducat and so for other places as in the former Chapters we haue noted Herein let vs obserue that the course of it is directly opposite for whereas in the one we doe procure to haue much money or at the value answered by Exchange so in the other wee may doe the like and rather procure lesse to bee giuen in Exchange because that the foundation of those Exchanges is made vpon forraine coyne Neuerthelesse consider wee that when foure Testons or three Franks in specie were calculated for the said Crowne of sixtie soulz in Exchange then euerie such Teston was fifteene soulz by valuation and euerie such Frank was twentie soulz But since that time the said peeces of Testons are made currant for 16 ½ soulz and the Franks at twentie two soulz being the same in weight and finenesse without any alteration in the standard called Le Pied de la Monoye but onely inhaunced in valuation according to which payments are made in siluer coynes Also for the gold coynes as French Crownes and Pistolets which are inhanced at times vntill 72 soulz ' from 60 soulz wherupon the said Crown was valued at six shillings sterling Is there any man of iudgement that will giue if hee can choose sixe
an occasion to gather in his owne debts sooner In some places also they may not arrest vpon the Sabbath dayes and Holy-dayes to the end they should not bee depriued of Diuine Seruice towardes God and comfort of their soules The Officers or Serieants may not arrest any man vpon the Bursse or Royall Exchange although the partie to be arrested should yeeld thereunto and renounce the said priuiledge It is not many yeares since that a Merchant of Amsterdam being vpon the Exchange at Antuerp had notice giuen him that another Merchant had giuen order that vpon his going from the Exchange hee should bee arrested and that the Officer did attend him being neere at hand whereupon hee perceiuing the said Officer called him vnto him and said Hee would obey the arrest which for the first time is but an adiourning or citation the Officer did require a pledge of a peece of coyne in token thereof as the manner is which hee gaue him Afterwards this Merchant of Amsterdam being otherwise aduised by his friends did disclaime from that arrest because it was done vpon the Exchange and claimed the said priuiledge insomuch that the Magistrates and the learned Aduocates on both sides did thereupon assemble in the Towne-house as it were the Guild-hall and there the matter was debated and discussed at large according to the lawes And it was at last concluded and determined that the said Arrest was void in Law for the renunciation of a Priuiledge by any particular The renunciation of a priuiledge cannot abolish the priuiledge or many persons cannot derogate or abrogate any Custome or Priuiledge not only in the generall but also in the particular so that within twentie and foure houres after he might haue bin arrested againe but he was non inuentus and vpon this Arrest he was to find caution to answere the law The like is to be vnderstood for all priuiledged places as Churches Chappels Church-yards and other places of iurisdictions and diuers Cities and Towns do not permit any man to be arrested vpon forreine pleas for debts or contracts made in other townes places or countries which are as places of refuge for some Merchants as the towne of Middleborough in Zealand Townes of refuge and the towne of Dort in Holland and other cities and townes in other countries and most cities and towns where a Nation or a Societie of Merchants do agree to make their residence as the Companie of Merchants Aduenturers and others commonly the said cities and townes doe exempt them from all litigious suits which happen betweene themselues to be determined by their Gouernour or Court master so as only controuersies happening betweene them and strangers or inhabitants are subiect to the ordinarie course of the law for the determination of Merchants differences They will also free them from all debts owing by Kings Princes and States so that the subiects goods shall not be lyable thereunto to the end that trafficke be not interrupted The Officers or Serieants which make these arrests are knowne by their habite Officers knowne by their habits or by a rod to be seene in their hands and may not by stealth come vpon a man wherby many insolencies are preuented and Serieants are not subiect to be killed as many times they are with vs. And if they haue not their habits or colours no man is to assist them if they be abused and the rescuing of a man then is no offence and howsoeuer if a man Arrested or to be Arrested do run away euerie man giueth him way as desirous to helpe him to keepe him out of troubles accounting the Arresting of a man to be a part of the hangmans office and neuerthelesse their hangmen are seene to be alwaies in rich apparrell and are reputed as necessarie members in a common-wealth whereas in England it is verie contemptible and base Returning to speake againe of Attachments it is a matter of great consideration with vs not to admit any to be done either in London or any other citie or towne corporate Attachments to be granted vpon specialties according to the custome of London vnlesse it be vpon plaine specialties and also with putting in good sureties for the costs for it is a verie dangerous thing for Merchants dwelling beyond the seas as also Merchants which dwell in remote places of the kingdome hauing their Factors at London if they vpon any surmise or pretence of debt shall make secretly any Attachment in their owne hands of their masters goods either when they know their master to be dead or trauelling in some forreine countries vpon a long voiage as occasion may fall out and so by practise deceiue them of their estates by pleading afterwards the said Attachment or Iudgement had thereupon in bar as aforesaid CHAP. XII Of Sequestrations and Executions THe magistrates considering that abuses may be committed many waies by attachments do commonly vse Sequestration of goods by deliuering them into the hands of a third person or taking of them into their owne custodie or power for by these meanes also are many attachments preuented which men would do if the disposing of the goods or debts did come into their owne power wherein they haue a care not to feed the humour of contentious persons which is meerely contrarie to the course of trade which is the cause that in the execution of their sentences wherein the life of the law doth consist they do proceed gradatim Execution is the Life of the Law and if any such Sequestration is made vniustly or without cause the Ciuile Law as also the office of Priour and Consulls hereafter declared will giue good costs and dammages Considerable Executions In the proceeding of the said Magistrates there are many persuasiue meanes vsed by them in the behalfe of the debtour with the creditor to bring him to a composition if not then some Officers are sent to the parties house to keepe him as it were a prisoner to whom he must giue meat drinke lodging and a daily fee according to the Iudges appointment and as the matter may be of moment to the end that by this pecuniarie punishment he may cause him to pay or satisfie the creditor which is aggrauated by sending two Officers at the first then two more and so six or eight of them to eate him out of house and home for these men will gnaw him to the verie bones and are therefore called Clyuers or Deuourers But if the debtor will not endure this and do go wilfully to prison then the creditor must find the debtor maintenance at the discretion of the Iudge who may if he will presently put him to bread and water which is seldome or neuer done but when it is knowne that the partie hath meanes and will not satisfie his creditor who after the imprisonment of the person cannot come vpon the goods againe according to the common lawes of the realme then he is to be kept in Arcta custodia with
bread and water for a time at the discretion of the Iudge But if the debtor be so poore and notwithstanding hath such a cruell aduersarie that will make dice of his bones that is say to haue his debtor die in prison and to hang vp a bale of dice for him in the Crowne Office as is done by the Officer in place or the Goaler then hath the Law beyond the seas prouided some reliefe for this poore man for the custome is in Germanie France Italie Spain and the Low Countries that no man is imprisoned for debt aboue a yere and a day in which time the creditors haue power to take seise and sell all the estate of the debtor which being done or before the woman in most places may claime her dower for her reliefe children and the rest is diuided amongst the creditors as far as it will go and so the debtor is freed from those debts for euer for by the Ciuile Law Qui vult cedere bonis liberatus est a debito if the debtor do relinquish his estate to the creditor he is free from the debts and all goods falling to him afterwards are his owne But this man is euer after disabled to come to any preferment and such a creditor as is the cause of it will be hated and accounted worse than a Iew or Pagan For the manner of Cedere bonis or to make cession of goods is verie hainous The manner of Cedere bonis and of wonderfull disgrace so that most men will rather die in miserie than to come vnto it because it happeneth not once in twentie yeares yet is it farre inferiour to the punishment of the pillorie or the striking ouer the legge vsed in Russia at the creditors instance whereby the debtor is set at libertie and the debt paid The partie commeth before the towne-house and standeth vpon a stone in the view of all the people and vnloosing his girdle he desireth them and all the world to take notice that he hath nothing left him to pay his creditors and so renounceth all what may be found to be his or what any manner of waies he might pretend and in token thereof he may not weare his girdle any more nor be imployed in any businesse as a liuing man yet afterwards by some composition to be made with the creditors he may be restored by a declaration to be made by some Officer vpon the said stone and then he is permitted to weare his girdle againe In the said countries no gentleman or man of qualitie may be imprisoned at all for debts his estate onely is liable thereunto and yet with reseruation of such necessarie things as Honestie Honour Humanitie and Christianitie doth challenge namely the souldiours Person his Armes his Apparrell Bed and Chamber conueniently and necessarily furnished which may not be taken for debt and the like reseruation is made to euerie other man of qualitie so that imprisonment of men bodies for debt according to the common practise of England is a greater burden and bondage than is to be found in any other christian or heathen countrie And for asmuch as the mischiefe and incoueniences arising to the King and Common-wealth by the imprisoning of mens bodies for debt haue beene propounded heretofore in Parlement by a printed remonstrance which like vnto a Pamphlet may be lost whereby good matters are many times put in obliuion I haue thought conuenient to make an abstract thereof in the maner as the said reasons are laid downe to be inserted in this booke in hope of some releefe vnto decayed Merchants whose estates may remaine liable to answere their creditors without imprisoning of their bodies against the Law of God the Law of man the Rule of justice the Law of conscience and christian charitie and against the Practise of other countries as aforesaid and finally against the creditors owne profit The Law of God willeth and commaundeth euerie man to follow a vocation to doe the honour Against the law of God duties and seruices owing to his Prince and countrie and Parents and to maintaine his wife children and family and to instruct them in the feare of God so that whatsoeuer directly or indirectly forbiddeth the said christian duties in the performing thereof by an imprisonment is against the law of God whereupon all humane lawes ought to be grounded No law of God willeth or commaundeth imprisonments of mens bodies for debt nor is it warranted by any example in the word of God and the efficient meanes bringing men into prison as vsurie is appeareth plainely to be forbidden by the word of God as hath beene noted out of the old law neither hath the law of the Gospell a word of commaund or warrant for imprisoning a christian brother for debt Exod. 22.26 Deut. 23.19 Leuit. 25 35. Ezech. 18 8. Ieremy 34.14 but rather containeth a commaund to relieue him if he be fallen into decay to take care how and wherein he shall sleepe to set him free at sixe yeares end and then to reward him By the Law of man it was not so Ab initio for by the Common Laws of England Against the law of man which are the most ancient most eminent most binding lawes no man may be taken or imprisoned for debt but the creditor was to take satisfaction vpon the debtors estate of goods lands according to Magna Char. 3. H. 3. and 14. Ed. 3. although after accountants onely were to be imprisoned vntill they paied which was made generall against all debtors by the statute of the 25. Ed. 3. cap. 17. yet prisoners in Execution might and did follow their vocation and affaires by baile mainprise or baston as by the statute of 1. Rich. 2. cap. 12. and from that time forwards were prisoners tied vp shorter to the writ of Habeas corpus or the Kings speciall mandate vpon surmises Habeas corpus that the said debtors made secret estates in trust to defraud their creditors or were wilfull and obstinate to pay them being able To answere these obiections it is vniust to punish all promiscuously aswell frauders as non frauders without and before any proofe made yet if the fraud were proued or his abilitie and sufficiencie either there is no cause to imprison his bodie because the law doth giue the estate fourthwith to the creditor whether the debtor will or no so it is still needlesse to imprison the bodie for twentie yeares imprisonment discounteth neuer a pennie of the debt and yet the debtor hath suffered more miserie and punishment than a guiltie Traytor or Rebell suffereth for the highest offence It is against the rule of Iustice and law of Nature Against the rule of Iustice. that men equally free borne should be depriued of the common and equall libertie and bee giuen into the power of another without criminall cause or guilt The debtor is either punished for guilt or cohersion if for guilt it is against the rule of
a common-wealth for the maintenance of lawes which otherwise would be fruitlesse or made as it is said by some propter terrorem for preuention whereof it is verie commendable to preserue this life of the law consisting in execution which was the cause that commissioners haue beene heretofore appointed to retaine men in their dueties as the Nomophilats in Greece the Censurors amongst the Romans the Ephores at Lacedemon the Areopagits at Athens the Visitors in Spaine Commissioners to retaine Officers in their dueties and the Commissioners of Troyle the Bastort in Edward the first his time for all humane actions are so flexible to euill that they haue need of a continuall remembrancer to vertue for the conseruation of the publicke good If we will make a comparison betweene the execution of Criminall causes and ciuile we shall in a manner find the same to be all one effectually for the generall manner of death imposed by the law is hanging where in other countries they haue diuers manners of executions according as the fact is haynous Murder being a great offence hath in all ages been punished with death but stealing of goods was alwaies taken to be much inferior because the law of God did not punish the same by death as is now vsed and yet a death by sudden execution is better than a lingering death by famine imprisonment and other aduersities before remembred The effect of the kings Prerogatiue Royall to be mercifull euen when law hath had her full course is to be seen rather in causes ciuile than criminall and that in the reliefe of poore distressed prisoners and others Iustice and Mercie in God are not contraries seeing the Mercy of God whose Lieutenants they are on earth is aboue all his Workes which maketh me to remember an error of the common people which thinke the Iustice and Mercie of God to be contraries for if they were they could not be in God because the god-head being but one and alwaies like it selfe cannot admit contraries and contraries they cannot be being both vertues whereas no vertue is contrarie to vertue but onely opposite to vice so that respecting the Kings Prerogatiue in criminal causes when the law hath determined death or punishment by perpetuall imprisonment or banishment the King imitating Gods mercie doth restore life freedome and libertie much more may the King do the same in ciuile causes when the law commaundeth imprisonment vntill satisfaction be made of the iudgement giue libertie and prolongation of time as hauing an interest in the persons of his subiects as we haue obserued I haue herein been the more ample because it concerneth the life of many honest men c. CHAP. XIII Of Denization and Naturalization of Merchants THE manner to make Merchant strangers Artificersâ— or Handie-crafts men to be Denizons or Naturalized was in times past without any difference and they did enioy the like libertie and priuiledges and were most commonly made by his Maiesties Letters Patents vnder the Great Seale of England by his Highnesse Prerogatiue Royall whereby they did enioy all the freedome and immunities that naturall subiects doe enioy and were so reputed and taken by the Lawes of the Realme vpon their oath made in Chancerie of alleageance to the King and the Common-wealth But the same was afterwardes called in question vpon the misdemeanors of some forgetfull persons and then Denizons were made to pay Customes to the King as strangers howbeit they might buy leases lands and houses as English borne subiects and their children heere borne should bee free and pay but English Custome for goods imported and exported and may become freemen of London and buy cloth in Blackewell Hall and all other Markets and transport the same where it pleased them albeit the Merchants Aduenturers haue infringed the same Naturalized distinguished Neuerthelesse some priuiledge to pay English Custome being granted to some particular Merchants by the Princes prerogatiues by Letters Pattents vnder the Great Seale it came to passe that these were named Naturalized which might be placed in offices as Iustices of the Peace and Quorum high Sherifes of the Counties and other places of dignitie and came to bee made Knights and Barronets and some of them buying lands and leases made great purchases married their daughters vnto diuers Gentlemen and others did also sell lands againe and bought other lands which buying and selling of lands did require assurances to be made and therein some Lawyers were of opinion that by the Law the said assurances were not of sufficient validitie without an Act of Parlement and then the Acts of Naturalization were made but the making of Denizons was alwayes continued by his Maiesties Letters Pattents onely and they are not subiect to the Statute of Employment albeit they pay strangers Customes Denizons not subiect to the Statute of Employment and diuers other charges which the natiue subiects doe not pay whereof Merchants are to take notice No stranger which is a Mechanicall person is much inclined to be a naturall subiect by Act of Parlement because of the charge of it which may bee about 30 ll albeit foure or fiue persons may ioyne together by petition to the Parlement and haue one Act for them all the forme whereof is commonly as heereafter followeth And here note that a Merchant is in no danger if hee be neither Denizon nor Naturalized but may deale trafficke and negotiate at his pleasure but he may take no leases nor buy lands IN most humble manner beseech your most excellent Maiestie your humble and obedient Orators I. L. of Florence your Maiesties seruant T. M. c. R. B. and M. Q. That whereas the said I. L. the son of A. L. and L. his wife strangers were borne at Florence in Italy in the parts beyond the Seas and whereas c. And whereas M. Q. being the sonne of M. Q. and C. his wife borne at Bridges in Flanders in the parts beyond the Seas in lawfull matrimonie and hath for the most part these twentie yeares remained and made his abode in London within your Maiesties Realme of England during which time hee hath demeaned himselfe faithfully and dutifully towardes your Highnesse and your Lawes yet for that both he and the rest of your Maiesties Orators were borne in the parts beyond the Seas they cannot take benefit of your Maiesties Lawes Statutes and Customes of your Highnesse Realme of England as other your Maiesties subiects borne within this Realme to their great preiudice losse and hinderance It may therefore please your Highnesse of your most noble and aboundant grace that it may be ordained enacted and established by your Highnes the Lords Spirituall and Temporall and the Commons of this present Parlement assembled and by the authoritie of the same That your Maiesties most humble Petitioners I. L. T. M. R. B. and M. Q. and euerie of them shall from henceforth bee adiudged reputed and taken to be your Highnesse naturall subiects and as persons
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
any thing in question where there wanteth proofe or they may minister the said oath to either partie vpon pregnant occasions to boult out the truth the like authoritie haue the Prior and Consulls of Merchants And moreouer their authoritie doth farre exceed the power of Commissioners for as Arbitrators haue a determinate power to make an end of controuersies in generall termes without declaration of particulars so hath the Prior and Consulls power to doe the like whereas Commissioners are to giue a reason and declaration of their proceedings to the Lord Chancellor Finally the Arbitrators authoritie implyeth a voluntarie command proceeding from both parties which the Commissioners haue not but the Merchants Court hath CHAP. XVI Of the Merchants Courts or office of Prior and Consuls THe third meane to end and determine Merchants questions and controuersies happening in the course of trafficke is the Courts of Merchants called Prior and Consulls or Il consolato as the Italians haue called the same And here we may say a Merchant is in loco propriâ— as the fish in the water where he vnderstandeth himselfe by the custome of Merchants according to which they are determined and if he do not yet as euerie man is taken to be wise in his profession so may he be admitted to vnderstand them the rather when he shall truely peruse and ponder the contents of this Booke which in my loue to Merchants I haue compiled as aforesaid The Ciuilians hauing considered of this Office of Prior and Consulls established in many places of France Italie and Germanie Wherin Prior and Consulls haue no power haue made diuers questions of their authorities saying they cannot decree any thing contrarie to the law of the land as that the father shall be bound for the sonne or the sonne for the father or any thing that is malum in se or naturally vniust or against the publicke good or that which sauoureth of a Monopolie neither may they forbid any man to go to law or order that a worke begun by one shall not be ended by another without the others consent neither are they to deale or to determine of any thing but what concerneth merchandising for other things as the selling of houses lands and the like doe not appertaine vnto them True it is that all matters criminall or offensiue do not belong vnto them to deale in for there the Kings Atturney is a partie and hath interest therein as falsifying of obligations and bills of debt or other writings matters of reproach or discrediting of persons theft and other euill vnlawfull behauiour done and committed by their said seruants or themselues or any other Merchant Factors or intermedlers in causes of merchandise as also all others not exercising the trade of merchandise are forbidden to be dealt with by the said Prior and Consuls neither are they to deale with the contracts of Vsurie either fained or otherwise vnlawfull nor with the Wills and Testaments or contract of marriages of any persons or with the interchanging of goods by consent and all other such like contracts but onely in all ciuile causes of merchandising How be it these questionable matters are not of that moment to be discussed considering that their authoritie is declared and confined by the Charters and Priuiledges made vnto them by Princes and Common-weales whereunto relation is to be had and accordingly they are to proceed hauing a respect to the equitie of the cause Hereupon Benvenuto Straccha the Ciuilian maketh a treatise Quomodo procedendum sit in causis Mercatorum of the manner to proceed in Merchants affaires wherein are many vniuersall things propounded which are easier but particular things are commonly more truer by his owne obseruation The decrees of Merchants need no other confirmation and he concludeth that the decrees of Merchants need no other confirmation or approbation The oath taken by the said Prior and Consuls to obserue the Law-Merchant is subiect to punishment if they be perfidious or forsworn as well as the oath of all other Iudges And writing de Consulibus Mercatorum he saieth That a Merchant may call in question and begin his plea before them although it be against one that is no Merchant if the cause concerne merchandising and the plaintife herein bindeth the defendant to be iudged by the said Prior and Consulls be he either a Knight or Ecclesiasticall person or a stranger not resident in the place In the like maner all Bankers Shop-keepers in faires and markets are bound to their iurisdiction for matter of money and Exchanges or for merchandise The plaintife may in other places where the defendant doth deale or negotiate be at his choice to begin or commence his suit where he will but not in two places at one time for one cause wherein sometimes the penaltie is by him respected to be far greater in one place than in another Here let vs remember the controuersie betweene two brothers which was aboue fortie-yeares since called Ioan de la failia and Iaques de la failia who went to law in Brabant for manie thousand pounds and afterwards one of them did commence suit in Flanders being another iurisdiction whereupon he was compelled to pay a forfeiture of 4000 ll A foâ—feiture for a iurisdiction for in trueth good orders and customes are to be maintained as lawes and nothing is to be admitted that may infringe the Law of Merchants The proceedings before the said Prior and Consulls is by Libell or Petition or by Declaration wherein let vs note the difference set downe by the said Ciuilians Difference betweene a Petition and a Declaration The Libell or Declaration is to be made with all the forme vsed in law as well for the matter of fact as the matter of law But in a Petition the forme is not needfull so the substance of the matter be well expressed especially the summe which is demanded or the goods being lent or vniustly detained must be specified and if it be for money owing for merchandises or lent it must be declared otherwise the Consuls will reiect the Petition as impertinent albeit some triuiall errors in Petitions are to be tollerated and the partie is to be by the Merchants Law relieued They are to proceed summarily in all their actions Summarie proceeding to auoid interruption of trafficke and commerce and they are to respect plaine and sincere dealings amongst Merchants with a consideration to construe all things to be done bona fide so that trust may be preserued amongst them debarring as much as in them lyeth the exceptions of Prescription Excussion and of promises made without consideration quod nudo pacto promisisti and the like in so much that many times a woman is admitted to be a procuratrix contrarie to the Ciuile Law A custome contrarie to the ciuile law and all other exceptions vpon plaine bills and obligations are set a part and the trueth is hunted after and all exceptions proceeding of Iustice and
Equitie to be considered of The paying of Customes Impositions Factoridge Portage Carriage and the like charges are much to be respected by them as also the execution of Wills and Testaments The publication of witnesses before them is without delay and no more witnesses are to be examined after the time of few daies limited is expired Sentences of the Prior and Consulls but sentence is immediatly to bee giuen in writing after pronunciation cleerely made by them according to the proofe and allegations vpon paine to be punished by the higher courts and in Fraunce by the court of Parlement vpon reformation of their decrees The manner of this summarie proceeding is so briefe that vpon comming of the parties before them in person or by their Atturnie they are presently to nominate their place of residence or else there is refusall made of their petition or demaund then there is but one delay admitted and in the acknowledgement of bills of debt or obligations there is admitted but one default after which the bill is held as confessed and auileable The authoritie of Prior and Consulls is greater than the authoritie of any Iudges wherein their authoritie is greater than the authoritie of all other Iudges For their said ordinance doth extend but to the adiourning of persons and the said Prior and Consulls vpon one onely default and notice left at the lodging of the offendor may auerre all bills and declare the same to be payable which notice is to be done by the messenger or serieant of the said office by fixing the copie of the demaund vpon the doore if he cannot find the person and by one witnesse or two to be affirmed and hereupon they may seise vpon the parties goods if his bodie be absent and cannot be imprisoned to pay and satisfie their said sentence and decree and thâ— goods by them seised vpon once warning giuen may be sold by them to that end If opposition be made against the seising sale or deliuerie of goods or against the cries or interpositions of decrees or against any other chiefe point where opposition may be admitted justice remaining duely garnished the parties so opposing themselues shall be sent to their Iudge and chiefe men of their prouince to declare before them the causes of their oppositions And if the partie adiourned do offer suretie yet notwithstanding he shall be caused to garnish and lay downe caution and then haue power to call his suretie so that the sentence or iudgement to be giuen shall be against the principall debtor for the principall summe and against the sureties for the charges dammage and interest only and this suretie is lyable after one default also vnlesse he put in a third man for suretie to whom also but one default can be allowed How be it that â—ll delaies are left to the discretion of the Prior and Consuls A diournmeÌ„ts and delaies vâ—ed who will admit none but vpon verie pregnant cause and if they find to haue granted any delay vpon vntrue suggestions they may impose a forfeiture vpon the partie according to their discretions and the qualitie of the cause and persons and in the proceedings there may be two citations and adiournments sometimes vsed by them Inquiries vsed especially vpon inquiries where the witnesses are admitted with the priuitie of the aduerse partie being called thereunto otherwise all the proceedings are of no value The inquiries are to be done within a limited time and may once bee prolonged vpon especiall cause and not otherwise All lawfull proofe must be done before them summarily within three daies without any further protraction vnlesse there be manifest contradiction and that by default thereof they pay the penaltie to be imposed Penalties imposed The like penalties are to be imposed if the parties do produce any friuolous thing in writing for there is alwaies expedition and breuitie intended in all their proceedings The Registers Oâ—â—ice The Register of the said Prior and Consulls is to keepe a little inuentorie of all the writings that shall be produced and shall cause the parties that doth produce them to write their names vpon euery one of them and the said Register is not to take out any coppie of matters of moment out of the Inuentorie of the said writings neither for the one partie nor for the other but onely the cause and the end wherefore the said writings are produced vpon a penaltie c. Câ—arges and daâ—ages to be taxed c. All charges and damages shall be taxed by the Prior and Consuls and be paied or the partie imprisoned not to be released without the consent of the partie And for as much as this course to determine causes is the shortest and most peremptorie of all deuises inuentions and meanes which can be imagined I haue thought conuenient to set downe the French Kings Edict concerning the same as the most compleat An Edict made by the French King concerning the Court and Authoritie of the Prior and Consulls of Roan HENRIE By the grace of GOD King of France To all manner of persons of what estate soeuer greeting As We haue bin heretofore aduertised that Our Citie of Roan is one of the best Cities in all Our Kingdomes by reason of the scituation and aptnesse for all commerce and trafficke where diuers Merchants as well of this Our Realme as of many other Nations doe vsually hold an entercourse of buying and selling for the continuance and propagation of which Trade there hath of late by Our Letters missiue beene erected and established in the same Citie a Common Place for Merchants and their Factors to assemble themselues in twice euerie day at the houres accustomed to dispatch their affaires and negotiations in such manner as is commonly vsed in the Change at Lyons Change at Lyons Bourse of Thoulouze and the Bourse at Thoulouze to the intent that the forraine commodities of other countreys may more readily be transported and exchanged away with those which Our owne bringeth forth Be it therefore knowne to all men That We through our ardent zeale and desire that We carrie to aduance the generall good of Our said Citie of Roan and to augment the common benefit and ease of all Merchants negotiating there and in all things possible to gratifie them that they may not bee distracted and drawne from their affaires and businesses into sundrie courts and jurisdictions by meanes of suites and variances arising at any time about their trafficke by the deliberate aduice of Our priuie Councell together with diuers Noblemen and Princes of Our blood besides other great and honourable personages of Our owne proper motion assured knowledge and regall authoritie haue approoued and confirmed and by these presents doe approue and confirme the making and establishing of the said Common Place in that Our Citie of Roan instantly ratifying the same in all points with the Change of Lyons and Bourse of Thoulouze Willing and ordaining and Our pleasure is That
all Merchants Factors and all others of what Nation soeuer may assemble themselues in the same twice euerie day at the houres accustomed and in their meetings shall freely vse their trafficke and passe their businesse as well by exchange as otherwise not onely in the same place License to exchange but also in any other whatsoeuer within the liberties of Our said Citie of Roan when and where they shall thinke good with all assurance and safetie to their merchandise and withall those priuiledges and liberties which Merchants trading to Our Townes of Lyons and Thoulouze doe enioy and vse according to the grant of Our predecessors Kings of France and of Vs. Furthermore We will and ordaine That the Merchants of the said Towne of Roan frequenting the same place shall euerie yeare cause a societie of Merchants to bee in the lodge of the said Bourse or in any other place in the said Citie and at such time as they shall thinke good in which meeting they shall chuse out of the said number three officers viz. A Prior and two Consulls to remaine â—n their authoritie for one yeare and so yearely to bee changed and there new to bee elected according to the ordinarie forme of most voyces Indifferent election not onely the Merchants of the Citie of Roan but also the Merchant strangers being to be present and assistant in the said election which election and nomination being fully ended the said Prior aâ—d Consulls shall haue present power in them to take knowledge to giue judgement betweene all men of what estate qualitie or condition soeuer they be of all suits controuersies and differences touching matters of merchandising or buying and selling in such manner as the Conseruator of the Faire at Lyons and the Prior and Consulls at Thoulouze doe as well for Obligations Bills of Debt Receits Blankes signed Bills of Exchange Generall and particular associations answeres by sureties associations of Merchants either generall or particular assurances accounts transportations bargaines and partenerships for matters aforesaid or any thing belonging therevnto with as full strength and according to the iudgements and condemnations of the said Conseruators of Lyons and the Prior and Consulls of Thoulouze And that the judgements and sentences decrees and ordinances commissions and commandements of the said Prior and Consulls of Roan by speeches prouisions or definitiues shall stand in as much force and effect for any matter judicially determined as those causes which the Conseruator of Lyons and Prior and Consulls of Thoulouze and others of Our Iudges doe decide And the same shall be executed by Our Serieants and Officers in such manner and forme as they are in their behalfe aboue named either by committing to prison The manner of executions or by inflicting seuere punishment if it bee so decreed and ordained and to that end shall Our Messengers and Officers bee bound to performe the executions Our Gaolers and Keepers of Our prisons shall likewise be bound to receiue and keepe all such prisoners in such manner as if they were committed vnto them by Our abouesaid Iudges and with the like bond and penaltâ—â— if any escape happen as they be bound to keepe the prisoners by the authoritie of the said Iudges For so We haue enioyned and doe enioyne Our Messengers and other Officers Gaolers and Keepers of prisons vpon such penalties as the case shall require and according as by the said Prior and Consulls shall bee set downe and declared without any default according as the offence committed shall require Moreouer Wee haue permitted and doe permit Our said Prior and Consulls to take vnto them 20 of the said Merchants or more or lesse as they shall thinke reasonable to assist them in their proceeding and judgements in causes of Merchandise Bills of Exchange Ayde in their execution assurances and differences as aforesaid and to cause to be executed their sentences judgements and ordinances of pawnes and consignements prouisions seizing of goods and all their other condemnations sentences or appointments to proceed therein by cries proclamations giuing notice to themselues or leauing notice at their houses by proofe sales dipositings deliueries and execution definitiue as the case shall require Likewise We giue them power to direct the same processe Summarie proceedings and to proceed therein according to their ordinances as well in matters summarily as by prouision as acknowledgement of Bills subscriptions and Bills of exchange And the like in acts of Pawnes and Consignements by one onely fault duely proued by summoning the person at his house or fixing there a copie of the commission or processe in all places where it is lawfull to be done And touching other matters where two defaults shall be made or summoned in person they shall proceed obserue and keepe the course according to the Kings ordinances And for all matters wherein they shall giue sentence of execution according to their knowledge Wee will and doe permit them as aforesaid to cause the execution to passe in all places of Our Court of Parlement at Roan and in all other places of Our Kingdome where need shall require without any disturbance or let to be done by any of Our Iudges Iustices or Officers either against them or their deputies neither shall they let or hinder any summons or arrest exploit or assignement to be done before them And to giue their assistance in all causes appertaining to their knowledge touching matter of trafficke and all things therunto belonging against all merchants trading in Our said Citie of Roan and as touching their Factors dealers and intermedlers of what qualitie soeuer they be sent by them into diuers Countreys Regions and Prouinces as well within as without Our Kingdome Countreys and dominions vnder Our obeysance for the cause of trafficke merchandising and doing of businesse and all other things thereunto belonging Wee will and ordaine Constraint to bring their Caâ—â— les c. That they may bee constrained to bring their causes and proofe for all matters aforesaid before the said Prior and Consulls for the time being or that shall heereafter execute these offices bee it either for the rendring of account and satisfaction of part or of whole or condemnations in penalties or other condemnations for amends for trespasses and of all other things that shall be requisite concerning and belonging to the trade of merchandise according as they shall deserue whereof Wee haue permitted them and doe giue them power to vse the forme euen as the said Conseruator at Lyons Prior and Consuls of Thoulouze and other Our Iudges doe And to cause execution to be serued on the offendors either by arrest attachment of goods and sale thereof or by imprisonment of the parties condemned Prohibition to other Iudges euen as they shall thinke good inhibiting all Our Iudges to presume to take knowledge of any matter or plea thereunto belonging which Our command Wee will bee notified vnto them and vnto whom it shall
haue hereunto caused Our seale to be put Giuen at Paris in the moneth of March and in the yeare of Our Lord 1556 and the tenth yeare of Our raigne signed by the King then in Councell and sealed with greene waxe with red and greene silke lace CHAP. XVII Of the Lawes of seuerall Countries whereby the Differences and Controuersies of Merchants are determined THe fourth and last meane to end the Differences and Controuersies happening betweene Merchants and others in the course of trafficke are the imperiall Lawes or the fundamentall Lawes of kingdomes and common-weales where the Merchants court of Prior and Consulls is not established whereof the Merchants ought not to beignorant so that in the description of them it is conuenient to make some declaration for the Merchants satisfaction appertaining to their busines and negotation All lawes are tending in substance to the vpholding of trueth maintaining of justice to defend the feeble from the mightie Finall end of the lawes for the suppressing of iniuries and to roote out the wicked from amongst the good prescribing how to liue honestly to hurt no man wilfully and to render euerie man his due carefully furthering what is right and prohibiting what is wrong summarily to be vnderstood according to the saying of our sauiour Christ. What you will haue men to do vnto you do the same vnto them Mat. 7.21 Luke 6.31 Which Alexander Seuerus the Emperor did expresse thus That which you will not haue done vnto thee do not vnto others And to this purpose let vs note three sorts of lawes namely The law of Nature whose vertue is alone Law of Nature and the same euery way in all or rather a verie notice of Gods law ingraffed in the mind of man The law of Nations which consisteth of customes manners Law of Nations and prescriptions being of like condition to all people as we haue before declared The Ciuile law which is an abridgement Ciuile Law derogating many illicentious customes which grew by peruersnesse and corruptnesse of nature and is termed Peculiar vsed by one kind of people called the the Imperiall Law Out of these was the common-law of England made whereof we are now first to intreate and therein to be somewhat prolixe for the better vnderstanding of Merchants the rather because the lawes do binde all men to Knowledge Obedience The law bindeth all men to knowledge and obedience and Punishment for indeed no man may breake them no man may be ignorant of them and lastly no man may iudge of them but according to them and therefore it is said that Iudex is taken à iudicio non iudicium à Iudice and more especially because this booke as you may find is more exactly calculated as the Prognosticators say for the Meridian of England howbeit it may serue for all other countries and places of trafficke and trade Of the Common-Lawes of the realme of England THe Common-Law of England is taken three manner of waies viz. 1 As the Lawes of the realme disseuered from all other Lawes The treatise of Doctor and Student which is the cause of the often arguing in the Lawes what matters ought of right to be determined by the Common-law or what by the Admiraltie court or by the Spirituall court 2 The Common-law is taken as the Kings court of Kings Bench or Common pleas 3 By the common-law is vnderstood such things as were law before any statute made in that point that is in question whereby that point was holden for law by the generall and particular customes and maximes of the realme or by the law of God and the law of reason whereunto the kings of England at their coronation do take a solemne oath to obserue the same and all which the inhabitants of England successiuely euer obserued Fiue nations in England namely Brittaines Romans and then Brittaines againe and then Saxons Danes and Normans Commendation of the common law Now whereas the Law-Merchant requireth breuitie and expedition all men of iudgement will confesse that hauing seene many deuises edicts and ordinances how to abridge processe and to find how long suits in law might be made shorter they neuer perceiued found nor read as yet so iust and so well deuised a meane found out as this by any man in Europe albeit that the shortnesse thereof is such that if a man haue many peremptorie exceptions Peremptorinesse of the common-law which can make the state or issue of his cause he shall be compelled to chose one exception whereupon to found his issue which chosen if he faile by the verdict of twelue men he loseth his action and cause and the rest can serue him for nothing common- Antiquitie of the common-law Great is the antiquitie of the common-law of England and the triall of Iuries by twelue men for we find the same to be from the time that the West Saxons had the rule and domination ouer the countries of Hamshire Wilreshire Dorsetshire Somersetshire and part of Glocestershire and also the same law was vsed amongst the Saxons which ruled Marshland and Medland that is to say the countries of Lincolne Northhampton Rutland Huntington Bedford Oxford Buckingham Cheshire Darbie Notingham and part of the shires of Glocester Warwicke Hereford and Shropshire at such time when the land was diuided into seuen kingdomes all of them being at that time inhabited with diuers nations namely Picts Scots Danes Normans Vandals and Germanes all which haue continued the proceedings of the law vntill the time of William duke of Normandie who conquered the same This William the Conqueror had the quiet possession of this land and caused amongst other lawes the Dane lawes to be collected which ruled in Deuonshire and Cornewall and a discreet view to be taken of sundrie lawes whereunto he did adde some of his Norman lawes to gouerne the people of the land now called England in so much that concerning the antiquitie of the laws and customes aforesaid they were long before vsed by the Saxons first gouernment Ann◠1198 ante Christum nay by the Brittaines themselues which was one thousand one hundred ninetie and eight yeares before the birth of our sauiour Christ being now in continuance aboue two thousand and eight hundred yeares for king Alfred caused the lawes of Marcia to be translated out of the Brittaine into the Saxon tongue and after that we find that king Lucius and king Alfred caused the continuance thereof The said Common Lawes are properly to bee taken to consist of the ancient Maximes of the said Lawes of the statute Lawes Booke Cases which are yearely obseruations vpon manners and may be called Responsa Prudentum comprehending therin the Municipall Lawes Municipall Law as gauelkind c. which is proper to all Kingdomes and Gouernments as an exception to the fundamentall Lawes thereof wherein many singular arguments drawne from Diuinitie and Humanitie are effectuall though there be no bookes for it For the
King Philip de Valois in the yere 1328 the French crown of the flowerdeluce as good in weight and finenesse as the French crowne of the Sunne now was then worth but twentie soulz tournois commonly accounted to be two shillings sterling In those daies saieth he the French elle or yard of Veluet was worth foure liuers which is foure crownes or eight shillings sterling the said elle of Veluet doth now cost ten liuers or twentie shillings and the French crowne which was then valued at two shillings is now valued at fiftie soulz or fiue shillings so that foure crownes do make the said twentie shillings yet the said French crownes doe not containe more gold in weight or finenesse than before and consequently the veluet is not now deerer than it was then The gentleman that hath now fiue hundreth liuers by the yere to spend hath no more than he that had one hundreth liuers to spend in those daies and in like manner he proceedeth for Corne Wine and other commodities and thereupon concluded That the dearth of all things is but imaginarie and a vaine opinion to conceiue that things should be deerer now than in those daies The second Paradox THere is much to be lost vpon a Crowne or any other money although the same be giuen in paiment at the price it was receiued This saieth Monsieur Malestroit is an old and common error rooted in the iudgement of most men that are far from the marke and without their reckoning as he will manifest in the former termes In the aforesaid time of King Philip de Valois the French crowne aforesaid was worth but twentie soulz which is now currant for fiftie soulz The gentleman that had fiftie soulz rent or income did receiue for it two crownes and ahalfe or so much in siluer accordingly for which two crownes and a halfe he had halfe a yard and halfe a quarter of veluet after the rate of foure liuers the yard which was the price of veluet then now for this fiftie soulz the gentleman doth receiue but one crowne or so much of siluer money and for that one crowne now he can buy but one quarter of a yard of veluet after the rate of ten liuers that veluet is now worth whereas before hee had halfe a yard and halfe a quarter although hee haue giuen the same in payment for fiftie Sols which is the price for which hee receiued the said Crowne and so proceedeth with other the like examples in the buying of commodities with siluer coyne or in the receiuing of rents or incomes adding further thereunto that if any man will obiect and say I care not what the crowne liuer or soulz is worth so as I hauing a hundreth liuers of rent paied mee and that I can pay out againe the said hundreth liuers This man saith hee must then make proofe that he can haue now as much ware for two soulz as he could haue had in times past for two soulz which were of fine siluer and now almost of copper and in doing so hee should make a third Paradox more strange than the former for hee should goe about to prooue euerie thing to bee become better cheape which cannot bee prooued The substance and intention of these two Paradoxes is saith hee to shew that the King and his subiects doe buy all things as deere as in times past for that they must giue as great a quantitie of gold and siluer as in times past but by the inhauncing of the price of the moneys of gold from whence of necessitie proceedeth the abating of the siluer moneys Inhauncing of gold abateth the siluer in regard of proportion betweene them the King doth not receiue in payment of his reuenues such a quantitie of gold and siluer as his predecessors In like manner Noblemen and Gentlemen that haue great reuenues and incombes doe not receiue such a quantitie of gold and siluer as in times past but are payed as the King is in copper in liew of gold and siluer For which copper according to the second Paradox they cannot haue so much wares as they might haue for the like quantitie of gold and siluer so that the losse which wee haue by the growing deere of all things commeth not by giuing more but by receiuing lesse quantitie of gold and siluer than before whereby wee see manifestly that the more wee doe inhaunce the price of money the more we lose Monsieur Bodine the famous and learned Politician The great French Politician tooke vpon him to make an answere vnto those two Paradoxes being of another opinion and setteth downe other causes of the dearth of things which are fiue in number namely 1 The principall and almost onely cause The aboundance of gold and siluer now extant in the Kingdome more than in times past 2 The Monopolies 3 The Want of things causeth by excessiue Trade and wast thereof 4 The Pleasure of Princes that aduance the price of things 5 The alteration of the Valuation of Moneys To proue the first case and principall he alleageth diuers examples Plutarch and Plinie doe witnesse Examples of great wealth that Paulus Aemilius after the conquest of Macedon against the Persians did bring such aboundance of gold and siluer to Rome that the people were freed of all Imposts and the price of lands aduanced vnto two third parts suddenly The Emperour Augustus brought such great treasure from Egypt that the price of vsurie did decrease and lands became much dearer and the like at Ierusalem by the comming of the Queene of Candace and in the West Indies by the Spaniards conquest there and heereunto hee maketh a comparison of the want of moneys in times past The French King Iohn in England c. for the paiment of the ransome of Princes taken prisoners in those dayes and the meanes of the increase of wealth by the discouerie of the West Indies the propagation of the people in France their trade for Turkie and Barbarie their Banke at Lyons and other accidents Concerning the second cause of Monopolies hee doth passe ouer the same as a matter not considerable and doth limit Monopolies onely to the combination of Merchants and Artificers in the setting of a price to commodities or their handie worke by augmenting their wages Touching the third cause of the dearth of things by the want or waste of them hee obserueth some especiall things that corne and wine are better cheape during the time of warre than peace because the Husbandman is driuen to sell and to make money of his wares and the Gentleman finding the same perishable when the Merchant dare not lade his ships doth abate the price of commodities and maketh the people to liue good cheape which according to the Prouerbe France can neuer be famished would alwaies continue The Fertilitie of France if by the meanes of the stranger their storehouses were not emptied Concerning the fourth cause of the pleasure of Princes imposing a price vpon commodities
Coelo the rather for that so many good Acts of Parlement haue beene made long since concerning the same when the Staple of our commodities did flourish both here and beyond the Seas in the time of King Edward the third The maintenance of â—ree Trade Anno 1622. And hauing of late published tenne causes of the decay of Trade it may be thought conuenient to examine the same vpon the said points 1 The vnderualuation of our moneys by Bills of Exchanges and the ouerualuation consequently of forraine coyne vnto vs which is the Efficient Cause of the want of money in England 2 Vsurie Politike practised by many and abandoning Trade 3 The litigious suits in Law to the hindrance of Trade 4 The neglect of the fishing Trade preoccupied by other Nations 5 The endraping of Wooll in other countreys of late much increased 6 The policies of Merchants of seuerall Societies 7 The false making of Cloth and other manufactures 8 The exportation of the materialls of Woolls Woolfels c. 9 The warres of Christendome Pirats and Bankerupts 10 The immoderate vse of forraine commodities within the Realme But before we come to this examination The beginning of the Staple let vs obserue the beginning of the Staple and their priuiledges in the gouernement thereof The most ancient foundation of Merchants and merchandising in this Kingdome both for Trade and Gouernement had by continuance of time before King Henrie the third did obtaine the name of Staple the commodities of the Realme as Woolls Leather Woolfells fells Lead Tinne Butter Cheese Clothes and other commodities were called Staple Merchandise The Ports from whence the said commodities were to bee transported were called Staple Ports as London Westminster Hull Boyston Bristoll Southampton New Castle and other places The places of residence of these Merchants both within this land and beyond the seas were called the Staples the Lawes and Ordinances made by the said Merchants were called Staple Lawes vnder their gouernement consisting of a Maior two Constables and other Officers hath the trade of this Kingdome time out of mind flourished to the great inriching of the Kings and Kingdomes and it hath beene supported and assisted by the wisedome of the State in all ages as may appeare by the seuerall Acts of Parlement made for that purpose in the times of Henrie the third Edward the third Richard the second Henrie the fourth Henrie the fifth Henrie the sixth and King Henrie the seuenth So that comprehending the Merchants aduenturers Societie with them which began in the said time of King Henrie the seuenth it is aboue foure hundreth yeares standing that the said Societie hath beene as we haue noted For by the prouidence of all those Princes the Staple Trade was from time to time established and especially by King Edward the third in whose raigne a great number of memorable Lawes were made for the purpose appointing the said officers and their fees to preuent extortion and all the Kings subiects that would bring their goods to the Staple and trade The ancient free Trade according to the Lawes and Ordinances thereof were admitted to be Merchants such was the free trade of this kingdome in those daies wherein the subiects of all sorts vpon all occasions might freely participate vnder gouernment At these Staples were the Kings Customes duely collected and by the officers of the Staple at two seuerall times paied into the Kings Exchequer and by their gouernment were many inconueniencies preuented whereby the former causes of the decay of trade were either moderated or reformed namely 1 The moneys of the Realme were required to bee answered in true exchange according to their intrinsike value and their Doller or other forraine coyne was by the Maior and Constables valued accordingly for there was no merchandising exchange vsed neither were Bankers knowne and when there wanted money in the kingdome or was like to want order was taken by them to import Bullion either the 1 â— or 1 â— part of the value of commodities exported The debts betweene Merchants were transferred or set ouer by bills to bee registred before the Maior or Constable which was currant without the strict proceedings of our Common Law And the like may be done now by a Register authorised by his Maiesties letters Parents 2 In those dayes vsurie was accounted to bee an abominable thing for it was not vsed by any course politike but seeing it is now so generall in all countreys the best remedie to abate the same in price is to procure plentie of money within the Realme by the meanes before mentioned which will bee more effectuall of course than any law that will be deuised for the moderation thereof 3 To auoide the litigious suits in law the said Maior and Constables of the Staple had authoritie to determine them with all expedition and if it were vpon a difference betweene a Stapler and a Merchant stranger there were two Merchants strangers admitted and ioyned with the Maior or Constables to determine the same and that with a present execution without delay especially vpon a Statute Staple acknowledged before the Maior or Constable as aforesaid 4 The fishing Trade was not preoccupied by forrain nations as it hath beene within these hundreth yeares as hath beene noted albeit such Ships as were permitted to fish in the Kings Seas and dominions payed six pence for euerie tunne burthen which is now eighteen pence and this trade might be established with vs notwithstanding that the seuerall Societies of the Merchants Aduenturers Russia and Eastland Merchants are of opinion that England cannot maintaine the same and the cloth Trade together as they haue certified 5 The indraping of wooll or making of cloth being of late much increased beyond the Seas and lesse cloth made with vs may giue the better meanes to establish the fishing Trade as aforesaid 6 The pollicies of Merchants of seuerall countries is to bee met withall as the Staplers did in times past looking to the sales both of woolls and all other Staple commodities and the prices of forraine commodities to preuent the ouerballancing in price of the said forraine wares with our natiue commodities 7 To preuent the false making of cloth let vs obserue that at these Staples Merchants goods were alwaies diligently and carefully viewed and subscribed by the Correctors and other Officers of the Staple to the end that all goods exported might bee answerable in goodnesse to their expectation vpon the view required whereby this Staple Trade continued without any interruption for they were the sole Merchants of the Realme without competitors vntill the time of King Henrie the fourth at which time certaine Mariners and Mercers of London vsing to barter English clothes in Holland Zealand Brabant and other places had by the said King Henry the fourth a gouernour set ouer them onely to bee a iudge to heare and decide their controuersies and to punish their misdemeanors with license that they might congregate themselues for that
Iustice for to bee found a debtor in the Law is no criminall guilt and therefore vniust to punish him criminally If for cohersion to make the debtor bring forth his estate to the payment of the debt it is also against the rule of Iustice to enforce a man by punishment to doe that which appeareth not to be in his power or whereof the Law is alreadie certified that there is not wherewithall to doe according to the purport of the Capias granted against the bodie by the Common Law It is also against the rule of Iustice to thrust all kind of debtors into a prison together in a heape without respect to the different qualities of men to more or lesse guilt of fraud or obstinacie or whether it bee an honest or an vsurious debt Plutarch in Solons life to more or lesse meanes of the debtor whereby hee must liue or starue in prison or to the holding him one or twentie yeares in prison for some are great debts for thousands some are small debts for trifles some are supposed debts not yet proued and in truth some are no debts But for certaine all or nine in tenne are vsurious debts and forfeitures scarse one honest debt of a hundred but all by vnlawfull gaine vpon corrupt and desperate aduentures But it wil be said that imprisonment is no punishment for prisoners liue at ease and pleasure c. according to the receiâ—ed opinion but the miseries and afflictions of imprisonment are inexplicable and cannot bee conceiued by any that haue not felt or had proofe thereof The auncient Romanes construed and reputed imprisonment to bee a guard or saâ—e keeping of slaues and bondmen but a heauie punishment to free borne men and it is recorded that the Prophet Micha was sent to prison to bee fed with the bread of affliction For imprisonment is a corporall punishment A discription of imprisonment a griefe and torture of the mind a long and lingring dying and sometimes a short killing by plague c. it ouerthroweth a mans reputation and destroyeth all that is good and deare vnto him his kindred grow strange his friends forsake him his wife and children suffer with him or leaue him or rebell or degenerate against him and lye open to all disgrace and villanie of the world in whose miseries the prisoner suffereth more than in his owne sufferings before him the sight of all these miseries and euills and which is not the least he lies open to euerie arrow of scandall or calumnie that a malicious aduersarie will shoot at him which he can neither resist nor auoid because hee is absent to confront them behind him griefe for losse of libertie credit friends estate and all good fortunes his baile and sureties who commonly are his neerest kin or dearest friends lye in the power of his aduersarie or are alreadie imprisoned To say nothing of ill ayre straight place hard lodging vnwholsome diet with the noise noisomnes pestring and fettering the body of the prisoner as the least of many euils Against Conscience and Charitie Let this be weighed in the ballance of Conscience and Christian Charitie and you shall find that these proceedings cannot subsist for they are against the Law of God and not warranted by Scripture But to induce diuers necessarie consequences for proofe hereof we are to consider how many wayes any man may guiltlesly and innocently fall by the Law Guiltlesly or innocently be conuict of debt or damages and cast into prison thereupon viz. By misprision or ignorance of himselfe or his Atturney in pleading of the cause by carelesse or vnskilfull Councellors especially when false things are cunningly laid or true things vncertainly laid By the necessitie of the defendant wanting meanes to pay his Atturney or Councell and by combination of the aduersarie with the defendants Atturney Sollicitor or Councellor or with the witnesses or Iurors for loue malice or ends of their owne By periurie of witnesses in concealing peruerting and misapplying truth or deposing vntruth and by subornation of Witnesses Iurors or Officers in the impannelling of Iurors and corruption of the Iudge By casualties A man may likewise be disabled and become insoluent by as many casualties and acts of honest and good intentions and consequently become a debtor and be cast into prison thereupon as by suretiship baile or securitie for kinsmen friends or others likewise by loane vnto them who pay not againe also by falshood of friends seruants and others put in trust with monies euidences office trade and lands Againe by mouing a iust suit in Law where might practise or falshood ouerbeareth him or many yeares suit consumeth him Also by fire water shipwracke and such like sudden and vnresistable accidents at sea or at land by robberie of Theeues and Pirats By vnprofitable buyings and sellings of Lands Leases Merchandises c. By arrest seizures or pretences and detriment of forraine Princes By sudden losse of friends or masters on whose fauour any mans estate dependeth also by errours in making or keeping reckonings and accounts or by losing or not calling for Acquitances Bils Bonds Releases or Ingagements and Assurances for Warranties Annuities Dowers Ioynctures Legacies and such like By Vsurors and Vsurie eating vp a mans estate by interest and forfeitures and by a multitude of other meanes whereby no man is secured but may become a debtor and insoluent And this Law taketh no consideration or admits no information hereof but in Summo Iure Summuâ— Iuâ— giueth the whole forfeiture without any conscionable respect and the after proceedings are sutable for after judgement though the debtor by his goods discharge ninetie and nine pounds of one hundreth pounds principall yet the bodie is subiect to be imprisoned till he pay the whole forfeiture of two hundreth pounds and the words of the Statute are That if hee haue no goods nor chattels or not enough to satisfie the whole his bodie shall be imprisoned for the rest till he make payment or agreement Marlebridge Cap. 23 Anno 52 H. 3 c. So euerie way it is in the absolute will and power of the creditor to cast the debtors bodie into prison when in all conscience and equitie if he haue no meanes to pay he ought to be let out of prison or not to be imprisoned at all because the debtors bodie can giue no satisfaction to the creditor being in it selfe considered Some prisoners haue meanes and are willing Meanes to pay yet cannoâ— but cannot pay either because the present power of their estates is not in them or in regard of the time that they cannot sell or receiue payment or in regard of the worth for scarce any will buy a prisoners lands lease or goods at halfe the worth or in regard of others interressed without whose consent hee cannot dispose thereof or the estate is intangled with dowers joynctures warranties assurances statutes c. Some haue not meanes sufficient to pay all and some
which they doe affect Plato saith That it is a generall rule in State matters That Princes doe not only giue Lawes vnto their subiects but also by their example they do change the manners of men The example of Princes doth change the manners of men to which purpose hee doth vse the example of their King Francis the first who being hurt in the head caused his haire to bee cut off wherein the people did presently imitate him We haue seen saith he three great Princes striuing as it were who should haue the most learned men and best artificers namely the said great King Francis the first Henrie the 8 King of England and Pope Paul the third insomuch that the King of England could neuer haue the learned and reuerend Beda and the French King did pay seuentie two thousand Crownes for a Diamond rather than King Henrie should haue had it Hereupon presently the people did giue themselues to studie and to buy precious stones when the Nobilitie did imitate the King and when the King gaue ouer the same the price of them was much abated If any man should here obiect saith Monsieur Bodin that if things should still become deerer partly through the waste and partly for the aboundance of gold and siluer no man should be able to liue because of the dearth of things It is true but the warres and calamities happening to a Common-wealth doe stay the course of it as wee may note that the Romanes haue liued with scarsitie and to speake properly in want and miserie almost fiue hundreth yeares when they had but copper moneys of a pound weight Copper moneys of one pound weight and without stampe for their gold and siluer came vnto them in one hundreth and twentie yeares by the spoile of all the world which was brought to Rome by the Scipions Paul Emilyus Marius Sylla Lucullus Pompey and Caesar especially by the two last for Pompey did conquer so much land Great wealth of the Romanes as made the reuenue of the Empire to bee eight millions and a halfe of Crownes Caesar notwithstanding all his prodigalities brought to the treasurie fortie millions of Crownes hauing giuen at one time vnto Paul Consull 900 thousand Crownes to hold silence and vnto Curion Tribune 1500 thousand Crownes to take his part Marke Anthonie went further as Plutarch and Appian haue written for he gaue vnto his armie for their seruice done 200 thousand Talents being 120 millions of Crownes so did Adrian the Emperour to haue the good will of fortie Legions giue ten millions whereby appeareth great aboundance of gold and siluer to haue been at Rome but it did not last euer for in lesse than three hundreth years the Parths Goths Hercules Hongres and other cruell Nations did ouercome the Empire and all Italy and ouercame the Romanes burned their Citie and tooke the spoile of them The like doth happen vnto all Common-weales to waxe and increase by little and little and to flourish for a time in wealth and power The propertie of Common-weales and afterwards to grow old and decline vntill they bee vtterly ruinated and destroyed Touching the last cause of the dearth of things by the alteration of money hee sheweth how Monsieur Malestroit hath mistaken the matter in the monies themselues made within three hundreth yeares For whereas he saith That Saint Lewis caused the first sols to be coyned worth twelue deniers whereof sixtie foure peeces went to the marke weight of eight ounces and that in Philip de Valois his time the Crowne of the Flower de Luce without number and as good as the Crownes now was valued but at twentie sols and that afterwardes King Iohn caused the Frankes to be made of sine gold which were but valued twentie sols and that the sols of siluer was worth fiue of our sols he doth not say of what weight and finenesse the moneys were in those dayes and in conclusion hee saith That the price of things is not altered by the Valuation of moneys But if Monsieur Bodine according to his wisedome and deepe iudgement in other matters had duely considered of these two Paradoxes hee would haue made a direct answere thereunto before he would haue proceeded in his former discourse The first Paradox being considered with the second will shew a manifest contradiction or contrarietie The contratierie of the Paradoxes for the first doth consist in giuing of more gold and siluer for commodities now than in times past which hee denieth and the second in receiuing lesse commodities for the gold and siluer now than in times past which hee affirmeth which both wayes is to bee taken in nature of commutation Now if wee doe not giue more quantitie of gold and siluer for commodities than in times past how can we receiue lesse commodities for the gold and siluer and thereby receiue a losse as in the second Paradox is alleaged Againe if we doe receiue lesse quantitie of commodities for gold and siluer than in times past according to the second Paradox whereby we sustaine a losse how can the first Paradox bee true That nothing is growne deere for that wee giue no more quantitie of gold and siluer than in times past commodities and moneys lying by this comparison in an equall ballance But let vs admit that Monsieur Malestroit had an intention which hee might haue expressed in few words if hee had the true ground and vnderstood the matter hee went about by proouing onely that when moneys doe alter in weight or in finenesse or in valuation Causes of the denomination of moneys c. or in all three the price of things doth alter onely by denomination if the valuation bee made accordingly yet Monsieur Bodine had not made a good interpretation of the said Paradoxes and mistooke the true ground of the matter in question touching the prices of commodities which hee compared within themselues in the Realme of France whereas the comparison ought to bee of the inhauncing of the price of the commodities of one countrey with the price of the commodities of other countreys and thereby find out whether things are growne deere with vs or with them in effect So that they both mistaking their grounds we haue shewed in the said Treatise That they hauing lost Ariadne her line wherewith they entred into the laborinth of moneys and their properties before declared are like vnto a man who hauing lost his way amongst the woods the further hee goeth the more hee erreth from the right way To intreate therefore of commodities and money in the course of trafficke betweene Kingdomes and Common-weales is not sufficient but the exchange of moneys being the publike measure betweene them must bee regarded as the principall and ouerruling part thereof For if a man should frame a silogisme in manner following he shall find the same full of fallacies and misprision nay a verie Dilemma Nothing causeth Merchants to export more money out of the Realme than they bring