within the citie of London being the kings Chamber After this follow the particular Letters for the deliuerie of seuerall countries and townes as Caours Carsin Monstreull Calice Rochell Turaine Poitiers Poitou Xantes Xantogne Dagonois Perigot and diuers others besides many Letters concerning the French Kings libertie and his Hostages and of the homage to be made by the Earles and Barons to the King of England who remaineth with the title of Soueraignetie and Domayne besides many other memorable things so that all matters concerning the seas and land were established for those seas and King Eâ—ward tooke sixe pence a tunne for fishing ships King Henrie the fifth who did conquere all France and had the possession of Mare Britanicum lost nothing of his right no more did Henrie the sixth and King Henrie the seuenth as may appeare by their Proclamations Treaties Chro Hollâ—ngshed and Contracts not onely with the French but with the Archdukes of Burgondie as by Guicchardins Chronicle Chr. Froiszart Guiccâ—arâ—in and the said Treatise or Historicall description of the Low-countries appeareth And as Docter d ee in his booke of Nauigation affirmeth King Henrie the seuenth in consideration of the fishing trade properly belonging vnto England in his seas and dominions had resolued to settle a trade thereupon which he preferred aboue all voyages for in those daies there was no fishing trade established in the Low-countries By original antiquitie And it is not yet one hundreth yeares compleate that one Violet Stephens and other discontented Fishmongers departed the realme of England and went into Holland to the towne of Enckhusen where they procured the inhabitants to fish for them in his Maiesties of great Brittaine seas streames and dominions which inhabitants vpon the decease of the said Englishmen Fishmongers tooke the whole trade to themselues dispersing the same into many other townes whereby the same is admirably increased Queene Marie being maried with King Philip the second of Spaine vnder whom all the seuenteene Low Prouinces were vnited granted a lease vnto the said King for the fishing of his subiects in the North parts of Ireland for one and twentie yeares for a certaine fine and paying one thousand pound yearely into the Treasurie of Ireland and Edward Fitton knight then Treasurer And the Companie of the old Haunce in primo of the said Queene Marie had also libertie to sish within the said seas vpon certaine conditions as appeareth in the Chappell of the Rolls of the Chancerie And for England Northwards licences were giuen at Scarborough Castle To this distinction of dominion of the Seas Inuention of the Porteullis I call to memorie the proceedings of that victorious King Henry the eight who during the time that Calice was vnder the Crowne of England as it hath beene full 211 yeares vsed the inuention of the signe of the Portcullis signifying the power of locking vp of the narrow Seas betweene Douer and Calice which was thought conuenient to bee vsed vpon the coyne made for the East-Indies at the beginning of that trade being peeces of the value of eight Royalls of Spaine whereof there was coyned in the Tower of London for a triall in Ianuarie 1600 some six thousand pounds which could not be made currant there because the Spanish peeces of eight Royalls had beene before that time counterfeited by other nations which made the East-Indians to doubt of our coyne although without cause This noble King Henrie hauing procured the Emperor Charles the fifth to meet with the French King went ouer in person with a great power to besiege the towne of Bulloigne in France and when he saw that the Emperors Tent or Pauillion was made with the two pillars of Hercules and the inscription Plus vltra and likewise the French Kings Tent with the three Flower deluces and the title of Primus Christianorum Rex He caused an Archer to be made vpon his Pauillion with Bow and Arrowes and his inscription was Cui adherio praeest declaring thereby his present strength whereby hee did qualifie those warres and peace was made between the Emperor and the said French King it being true that the state of a Prince doth as much consist by reputation as by strength Our Soueraigne Lord King Iames hath also beene mindfull of his right of distinct dominion for the great blessings which almightie God hath allotted to the Kingdomes of Great Brittaine Ireland and the Isles adiacent vnder his Maiesties Dominions is so visible to all the world as that thereby they are rauished with admiration For albeit that the earthly blessings are produced in seasonable times yet the blessings of the Seas are directed and pointed at by the finger of God at infallible seasons causing those watrie creatures to offer themselues for our sustenance and for the generall good of all creatures in places certaine within his Maiesties Seas Streames and Dominions and not into the maine where fishing cannot bee effected Whereupon his Maiestie before his comming into England did let the fishing of Scotland to the Hollanders for fifteene yeares it being agreed by more ancient Treaties betweene them that the fishing then agreed vpon should be eightie miles from the Coast to the end the Scoles of Herrings should not bee interrupted His Maiestie in the fourth yeare of his Raigne of Great Brittaine made a Graunt to one Collyns of Couentrie for twentie one yeres for the fishing in some parts of Ireland Graunts made for fishing and the like Graunts haue beene made for the Isles of Garnesey and Iarnesey according to the Common Law of England By the Common Law which in this point concerning his Maiesties right of dominion is very copious the handling whereof I leaue to the learned and judicious of the said Law In the seuenth yeare of his Maiesties said raigne his Highnesse caused a Proclamation to be made concerning his Dominion of fishing which being compendious and substantiall I thought conuenient here to be inserted Verbatim IAMES By the Grace of God King of Great Brittaine France and Ireland Defendor of the Faith c. To all and singular persons to whom it may appertâ—ine greeting Although We doe sufficiently know by Our experience in the Office of Regall dignitie in which by the fauour of Almightie God Wee haue beene placed and exercised these many yeares as also by obseruation which Wee haue made of other Christian Princes exemplarie actions how far the absolutenesse of Our Soueraigne Power extendeth it selfe And that in regard thereof Wee need not to yeeld account to any person vnder God for any action of Ours which is lawfully grounded vpon that iust Prerogatiue Yet such hath euer beene and shall be Our care and desire to giue satisfaction to Our neighbour Princes and friends in any action which may haue the least relation to their Subiects and Estates as We haue thought good by way of friendly Praemonition to declare vnto them all and to whomsoeuer it may appertaine as followeth Whereas Wee
Alteration of ten dayes made by Pope Gregorie the 13. IVlius Caesar the first Emperor of Rome a man learned and of great magnanimitie considering that the Romane yeares were reckoned confusedly according to the course of the Moone by the Hebrews with their intercalar moneth to make the same agree with the Sun By the counsell and instigation of Sosigenes an expert Mathematician about 44 yeares before the Birth of Christ deuised a new foâ—me of Kalendar first framed after the course of the Sunne diuiding the whole yeare into three hundred sixtie fiue dayes and sixe houres making it to containe twelue moneths whereof the names are yet in vse beginning from March for the first moneth which caused September October Nouember and December to beare their names the seuenth eightth ninth and tenth moneth yet all yeares by the Almanackes putttng Ianuarie for the first moneth beareth the name accordingly from the Heathen god Ianus painted with two faces as it were beholding the yeare past and the yeare to come Februarie was so called of certaine sacrifices then offered called Februa March of Mars an Heathen god April the denomination of the moneths of the Spring Time and the word Aperio opening all vegetibles and other things May of Maya the mother of Mercury Iune a Iuniore for that all the yong people had a meeting in that moneth for recreation Iuly of his owne name Iulius and Augustus for the inlarging of the Empire Now forasmuch as the odd six houres could not conueniently bee brought to account euerie yeare hee ordained that euerie fourth yeare one day should bee added to February because foure times six houres maketh vp a whole day of foure and twentie houres and the yeare wherein this odde day falleth The Leape yeare wee call commonly Leape yeare hauing three hundred sixtie six dayes And because it was added at the six Calends of March it is named in Latine Bissixtus or Bissextilis Annus Neuerthelesse Iulius Caesar did begin his Kalender in Ianuarie when the Sunne entreth the eighth degree of Capricorne eight dayes after the winter Solstitium Solstitium which then being the shortest day of the yeare fell vpon the twentie fiue of December And the Spring Time Equinoctium about the twentie fiue of March Equinoctium The which places of the Sunne are now changed and sliden backe in the Iulian Kalender from the said obseruation of the Spring Equinoctium as also from the Haruest Equinoctium being about the twentie six of September the longest day then falling out the twentie fiue of Iune grounded vpon this reason of preuention of the Equinoctiall to the twelfth eleuenth and tenth dayes of the said moneths and the thirteenth and fourteenth of September But the chiefe cause proceedeth by reason that Iulius Caesar did reckon the yeare to continue three hundred sixtie fiue dayes and six houres which is more than the iust Astronomers calculation by tenne minutes of an houre and fortie foure seconds accounting sixty minutes to an houre and sixtie seconds to a minute so that the yeare truely containeth three hundred sixtie fiue dayes fiue houres fortie nine minutes The difference as the account of yeares for the errour and sixteene seconds as is before declared which difference in the space of one hundred thirtie foure years or thereabouts maketh one whole day and in the space of one thousand six hundred sixtie foure yeares being the time that the Iulian Kalender was set forth vntill the last yeare it commeth to twelue dayes twentie two houres fortie minutes and twentie fiue seconds For this cause sundry learned men haue heretofore desired that the same may bee reformed to auoid inconueniences and to haue a true account of yeares and dayes And the matter was propounded to diuers generall Councells but tooke no effect till now of late yeares by meanes of Pope Gregory the thirteenth in the yeare 1582 and then it was permitted to one Aloysius Lilius professor in Mathematicke Astrologie to set downe this long desired Reformation who being resolued to doe the same exactly by true account was hindered by the Clergie for they would not agree that the same should be drawne backe any further than to the time of the Nicene Councell which was in the yeare 328 and hereupon hee brought the reckoning backe only ten daies caused the fifteenth day of December to bee called the twentie fiue day Alteration of tenne dayes and the inconueniences which is but obserued in some places and brought great controuersie in diuers countries seeing the day of the Natiuitie of Christ and other Festiuall dayes and also dayes of keeping of Faires and Markets are changed and holden tenne dayes before the accustomed time And Merchants and others in making their Contracts and Obligations are often disappointed of their dayes of payment with diuers other inconueniences Whereas men of true iudgement might haue made this argument Is it by the addition of Time growing by certaine minutes and seconds euery yeare arising to one whole day euery fourth yeare in the moneth of February Then as it is increased thereby thirteene dayes in one thousand six hundred sixty foure yeares it may by the same Rule decrease so much in few yeares A true and good reformation of the Iulian Kalender by leauing out and suspending that one day which is so added vntil it come to his first institution and calculation of the Iulian Kalender which may bee reformed in fiftie two yeares beginning from the yeare 1620 being Leape yeare and leauing out thirteene dayes which is little more than one houre in the said and is no perceptable difference and after the said fiftie two yeares expired to adde the said day againe and there will not increase any one day more but in one hundred thirtie foure yeares And all the yearely obseruations may be accommodated accordingly I made an exact Table heereof in the yeare 1604 whereby the day of the Natiuitie of our Sauiour fell out againe to bee the shortest day of the yeare This Table was shewed vnto the Kings Maiestie of Great Brittaine as I was informed and howsoeuer pleasing yet for some causes to mee vnknowne not held fit to bee established CHAP. III. Of NVMBER and the Mysteries thereof VNitie is the Spring and Fountaine of Numbers which hath a reference vnto God the only fountaine of Goodnesse the onely Father Creator and preseruer of vs all Heere let vs note that the Philosophers haue not onely with one consent affirmed That great mysteries and vertues are contained in numbers But the ancient Fathers haue also obserued the same in the holy Scripture as Ierome Augustine Origen Ambrose Basil Athanasius Hilarius Rabanus Beda and others amongst whom Doctor Rabanus hath made a booke of the vertues which are hidden vnder Number And if there were no mysterie comprehended vnder Number Saint Iohn in the Reuelation would not haue said He that hath vnderstanding let him reckon the Number of the name of the Beast
wares and durable commodities to the impouerishing of kingdomes and common-weales And not only is this commutation or exchange abused in kind but also in the price paying too deere for the one and selling the other too good cheape whereby commeth an ouer-ballancing of Commodities in price and qualitie and not in quantitie whereby in effect Ouer-ballancing of Commodities Moneys are giuen to boot and as it were ouer and aboue the reasonable estimation of things and herein is the course of Exchanges by Bills predominant and ouer-ruling both the course of Commodities and Money as shall be at large demonstrated hereafter For the said three essentiall parts of Trafficke are properly the Bodie Soule and Spirit of Commerce The Bodie Soule and Spirit of trafficke and haue their opperation accordingly The first as the Bodie vpheld the world by commutation and bartring of Commodities vntill Money was deuised to be coyned The second as the Soule in the Bodie did infuse life to trafficke by the means of Equalitie and Equitie preuenting aduantage between buyers and sellers The third as the Spirit and facultie of the Soule being seated euerie where corroborateth the vitall Spirit of trafficke directing and controlling by iust proportions the prices and values of Commodities and Moneys True it is that this Spirit and facultie of the Soule namely the Exchange for Money taketh his originall from the Soule which giueth life to the bodie of trafficke that is to say The exchange for Moneys by Bills of Exchanges is grounded vpon Moneys and Moneys were inuented and made by common consent to be the rule and square to set a price vnto all things and the right and true judges of them and is therefore called Publica Mensura Money the publicke measure at home or the publicke measure between man and man But since the manner of Exchange was inuented betweene nations and nations or countrie and countries Moneys did onely remaine the publicke measure within the realmes or common-weales of euerie countrie betweene man and man according to the valuation of Princes and States imposed vpon Moneys and the Exchange of Moneys by Bills became Publica Mensura betweene vs and forreine nations and between all nations in the course of commerce Exchange for Moneys the publicke measure betweene nations according to which Exchangeal Commodities are bought and sold. And albeit that the aboundance or quantitie of Commodities and the many or few buyers or the scarcitie of Commodities causeth the prices of Commodities to rise and fall and likewise that plentie of Money maketh things deere and scarcitie of Money maketh them good cheape as a propertie inherent vnto Money as a true measure yet we must obserue in true order That both Commodities and Money are Passiue Commodities and Mony are things passiue since th' exchange was inuented which is only Actiue and that in countries where all the essentiall parts of trafficke are vsed But howsoeuer the Maxime is to be obserued in the auoyding of the said ouer-ballancing of Commodities in price and qualitie Marcus Cato therefore saieth aduisedly Oportet patrem familias esse Vendacem non emacem A prince therefore as the father of the common-wealth ought to be a seller and not a buyer which commeth to passe when the expences of his common-wealth do not exceed his incomes and reuenues this to be effected by keeping a certaine equalitie in the trafficke betwixt his kingdome and forreine nations Natural riches Artificiall riches For riches being naturall or artificiall and both subiect to Number Weight and Measure requireth a certain equalitie in the true coÌ„mutation of things between vs and other nations Iustice distributiue and commutatiue And justice being distributiue commutatiue euerie man of iudgement knoweth that this part is comprehended vnder justice commutatiue and that all trafficke consisteth of the land Commodities Land Commodities Sea Commodities and of the Commodities of the seas and lastly of the Commodities of other countries and nations For God caused Nature to distribute her benefits or his blessings to seuerall clymats supplying the barrennesse of â—some things in one countrie with the fruitfulnesse and store of other countries to the end that interchangeably one common-weale should liue with another These Aphorismes or selected points are of great importance for as is noted before gaine being the scope of all merchants is procured without regard had to the common-wealth the wealth wherof cannot properly decrease but three manner of waies Proper causes of the decrease of wealth in a State namely by selling our home Commodities too good cheape by buying the foreine Commodities too deere and by the transportation of Monys in specie when the exchange of monys doth not answere the true value of it by Bills of Exchanges as shall be plainely demonstrated Exchange the Rudder of trafficke For this Exchange is the Rudder of the ship of Trafficke fastened vpon the Parallel of the keele of Equitie which doth rule and direct the said ship vpon all the variations of the Commodities of all countries Many men knowing that the Rudder doth gouerne the ship can notwithstanding giue little reason of the cause of it but admire to see so small a piece of timber haue so great an operation yet no man is so foolish as to attribute that power vnto the sailes or any other appurtenances of the ship or to the maine bodie of it called the hull of the ship Great is the error therfore of those that will ascribe any effectual operation to the quantitie of Commodities albeit there was a trafficke and commerce without either Money or Exchange for Money when the course of it was like a ship sailing without Rudder or Compasse Money may well be compared to the Compasse Money as the Compasse of a Ship and Exchange the Rudder hauing so manie variations vpon the seuerall standards of the coines of all countries and changing continually from time to time in valuation Princes and Common-weales taking aduantage one against another either to draw treasure into their Kingdomes and Territories or to aduance the price of their countrie Commodities And Exchange may properly be compared to the Rudder of a Ship which commandeth the directions of the Compasse accordingly and so doth the Exchange command the course of Money for let the standards of Moneys be altered either in weight finenesse or valuation the Exchange by altering the price with great facilitie according to equity is able to meet and ouer-rule them all as shall be declared in the progresse of this booke The learned haue determined Principles or Axiomes what they are c. that no argument or disputation is to be maintained with those that will denie Principles which by reason and common consent are indisputable and stand of their owne authoritie for by an vndoubted Principle or Axiome we know That the whole is bigger than his part that two is more than one and that two equall things being equally diuided into
to be inuectiue and patheticall against Bankers wherein they are not mistaken Bankes are incompatible in Common-weales For the vse of Banke vnlesse they bee countermined by other Bankes are not to bee suffered in any well ordered Common-wealth as time will manifest more and more The French King Lewis the ninth and Philip the Faire did with great cause confiscate the Bankers goods and for the discouerie of their debts ordered their subiects to pay onely the principall money into their Treasuries Philip de valois did the like and indited them as Couseners of the Common-wealth for it was found that in a short time Bodin de Rep. with twentie foure thousand pounds sterling they had accumulated and gotten aboue two millions foure hundreth thousand pounds Others which through enuie malice or other passions haue the eyes of their iudgement blinded haue censured my writing to be Apologeticall for the erection of a Banke vnder the colour of the restauration of the auncient Office of the Kings Exchanger which how absurd it is let the wise iudge by the difference betweene a Banker and a Generall Exchanger Difference between Banker and Exchange The Banker doth draw vnto him all the moneys of other men making his small stocke to be infinite and the Exchanger must with his owne stocke supply mens occasions The Banker doth make the price of Exchanges with the correspondence of other Bankes elsewhere at his pleasure and most aduantage The Exchanger hath no correspondence with other Bankers but with his Factors and Seruants is limited to deale honestly with all men But because it is difficult to please mens humours in the reformation of abuses which either for gaine some would haue to continue or others through ignorance doth not vnderstand Therfore is there another meanes propounded as you see by this discourse Now comming to the Feats of Bankers it is not since yeasterday that the same haue beene obserued much lesse by mee inuented but in the yeare 1576 the wise and famous Councell of Queene Elizabeth caused the same to be examined by discreet persons who did make report thereof albeit they missed of the remedie and they did distinguish the manner of Exchange to be threefold viz. For the Bankers priuate gaine and benefit TO lay their money with gaine in any place of the world where any Exchange lyeth To gaine and waxe rich and neuer meddle with any Princes commodities To buy any Princes commoditie and neuer bring pennie or pennieworth into the Realme but doe it with the subiects money To grow rich and liue without aduenture at the Seas or trauaile To doe great feats hauing credit and yet to be nought worth To vnderstand whether in coniecture their money imployed on Exchange or buying of wares will be more profit To know certainely whether and what the Merchants gaine vpon their wares they sell and buy To liue and increase vpon euerie Princes subiects that continually take vp money by Exchange and whether they gaine or no. ☞ To wind out euerie Princes treasure out of his Realme whose subiects bring in more wares than they carrie out of the Realme To make the Staple of money run thither where the rich Prince will haue it to be brought and pay for it To vnfurnish the poore Prince of his prouision of money that keepes his wares vpon interest money if the enimie will seeke it To furnish their need of money that tarrie the selling of their wares in any contract vntill they make them come to their price To take vp money to engrosse any commoditie either new come or whereof they haue some store to bring the whole trade of that commoditie into their owne hands to sell both at their pleasure For the aduancing of one Common-wealth aboue all other Common-weales TO hide their carrying away of any Princes money To fetch away any Princes fine money with his owne or any other Princes base money To take vp Princes base money and to turne into his fine money and to pay the deliuerer with his owne and gaine too To get vpon credit into their hands for a time all the Merchants money that will be deliuered and pay them with their owne and gaine too ☞ To make the Realme gaine of all other Realmes whose subiects liue most by their owne commodities and sell yearely the ouerplus into the world and both occupie that increase yearely and also their old store of treasure vpon Exchange To vndoe Realmes and Princes that looke not to their Common-wealth 〈◊〉 when the Merchants wealth in such and the great houses of one Countrey conspire together so to rule the â—xchange that when they will be deliuerers they will receiue in another place aboue the standard of the Mint of the Princes money deliuered And when they will bee takers they will pay the same in another place vnder the standard of the Mint of the Princes money taken vp To get readie money to buy any thing that is offered cheape To compasse readie money to get any offered bargaine out of anothers hands and so by outbidding the other oftentimes to raise the wares For the destruction of a Common-wealth TO get a part and sometimes all his gaines that imployeth money taken vp by Exchanges in wares and so make others trauell for their gaine To keepe Princes for hauing any Customes Subsidies or Taxes vpon their money as they imploy it not To value iustly any wares they carrie into any countrie by setting them at that value as the money that bought them was then at by Exchange in the countrie whither they be carried For the better explanation of the premisses let vs remember the description of a Banke heretofore declared Payments in Banke limited and therein obserue that great power and commaund which is giuen them by the common-wealth to incorporate moneys by the meanes of Exchanges making it to become a merchandise and to ouerrule the course of commodities Some men are of opinion that the price of Exchanges are made by an indifferent course because the Bankers at the time of the payments of Exchanges in the principall places as Lyons in France Madrill and other places in Spaine Florence and Genoa in Italie Bizanson and other places elsewhere haue a meeting and by certaine tickets in writing euerie man doth deliuer his opinion what the price of Exchange ought to be for all places then exchanging for the next Faire or time of payment And according to the same the calculation is cast vp by the Medium that is to say Exchanges cast vp by the Medium if there be seuen or more voices or tickets the said seuen are added together and the seuenth part is the Medium if there be ten then the same being cast vp the tenth part is the Medium and so for greater or lesser numbers accordingly But these men are ignorant of the Bankers obseruations for they all know how the plentie of money lyeth by Exchanges and they concur in making
appertaine by the first of Our Officers or Serieants that shall bee required whom Wee enioyne to performe the same accordingly to the intent that all those charges and extraordinarie expences which Merchants may bee put vnto in following their suits against their Factors and dealers before many Iudges might by these meanes be vtterly auoided Furthermore Wee haue permitted and doe giue authoritie to the said Prior and Consulls Halfe of the forfeitures to the Prior c. that all such penalties of moneys as by them shall be inflicted vpon men for contempts or any other offences shall be forfeited the one halfe to Vs the other halfe to the vse of the said Common Place or Bourse of Roan to supply the wants thereof allowing them likewise absolute libertie and power to chuse and constitute one Councellor A Councellor and one Atturney and one Atturney who shall by all lawfull means labour the benefit and aduancement of the said place and shall defend the same to direct their proces and causes as well before the said Prior and Consulls as before all other Iudges And to the end that the Merchants may assemble themselues as well to consult of their common affaires as to constitute the said Councellor and Atturney without being subiect to repaire to Vs or to Our Iudges for leaue when need shall require Therefore all such judgements as shall passe before the Prior and Consulls being sealed with their Seales and signed by a Register by them appointed be it by imprisonment sale disposing of goods or otherwise shall be held for reall and lawfull being past in manner aforesaid without any constraint to haue Our further commission or liking euen according as was permitted by Our most honourable Our Father the King vnto the Merchants of Our Citie of Lyons by his letters Patents giuen in the moneth of Februarie Appeale to the Parlemeâ—t in the yeare of Our Lord 1535 reseruing vnto Our said Court of Parliament at Our said Citie of Roan for a last conclusion and by appeale the jurisdiction and knowledge of the said discords and differences And to the end that all such appeales as shall proceed by reason of the iudgements and sentences that shall be giuen and declared by the said Prior and Consuls may be speedily and without delay ended in our said court Wee haue ordained and doe ordaine inioyne and commaund all Our louing and truâ—tie Presidents and Councellors holding Our said court of Parliament to declare to the said Merchants without delay one day in euerie weeke such as they shall thinke conuenient to heare determine and dispatch the said appellations by order of roll for that purpose ordained Iustice with all expedition And in regard of the processe by writing there shall be one other roll made a part to the end that the said appeales may be ended in the same day to auoide the prolonging of suits to the ruine and consuming of the suiter And to the end that the said place of meetings of the Merchants twice a day may be quiet and without disturbance Our pleasure is and Wee do straitly commaund that none of Our Serieants and Officers presume to enter into the same place No arrest to be made vpon the Burse c. not to make any arrest for any cause of any person whatsoeuer during the time of those two accustomed houres of meeting And if such arrest should bee made during the said houres Wee haue declared heretofore and doe declare at this present the same to bee void and insufficient charging all Our Iudges not to haue any regard thereunto And as Wee are informed that the trade of Assurances is of late greatly aduanced by the Merchants of the said citie of Roan a worke so honourable that it doth euen beautifie and greatly aduance the trade and commerce of the said citie Wee to the end those said pollicies of Assurances and all other writings thereunto belonging may receiue full vigour haue permitted and doe permit that all Merchants frequenting the said place both now and hereafter to come to assemble themselues at all times when it shall be needfull to chuse and nominate according to the most voices one Merchant amongst them such a one as they shall thinke meet being a man trustie and expert in the knowledge of the trade of Assurances who shall make and register the said pollicies A Register for Assurances whereunto the Assurors shall set their hands at all times hereafter in the said place and liberties of Roan when it shall please the Merchants whose office shall likewise be to draw forth accounts of such arrerages as shall happen being thereunto called receiuing for his paines and time spent about the businesse of the same Assurances according as it shall bee thought meete by the said Merchants and keepe a perfect and true Register of the same Assurances To the which Register and Copies thereof and all other Acts and Writings by him made concerning matter of Assurances and by him signed Wee will and ordaine that all manner of credit shall be thereunto giuen before all Iudges and others to whom it shall appertaine without that any other person or persons shall haue to do or meddle in the said busines of Assurances or any thing thereunto belonging vnlesse he be before chosen and admitted thereunto by the said Prior and Consuls and by the said Merchants as aforesaid And Wee doe commaund and giue in charge to all persons holding Our courts of Parliament great Consells Admiralls Vice-Admiralls Stewards and their deputies and to all other Iudges and Officers whom it shall concerne that you do cause to be read proclaimed and registred this Our present Will Declaration Permission and Ordinance and the same to be obserued and kept by all them accordingly that the Merchants may vse and inioy the force and benefit thereof plainely and peaceably without any contradiction Moreouer Wee doe charge and commaund Our Atturney generall that he do with all dilligence cause all these things to be plainely and truely executed and that he do certifie vs of his diligence so done for such is Our pleasure for that of Our meere motion and power Wee will haue it done and that notwithstanding any ordinance customes statutes priuiledges commandements defenses or letters to the contrarie the which in this cause without doing preiudice to other causes Wee haue made void and doe make void And for that men shall haue occasion to vse this Our grant in diuers places Our pleasure is that credit shal be giuen to all such copies as shal be made by any Our louing and trustie Notaries and Serieants Secretaries or vnder in ample manner as to the originall and to this effect We do giue you full power authoritie and especiall charge and commission by these presents commaunding all Our Iustices Officers and subiects to obey you in this case And to the end this may remaine established for euer Our owne right in all other causes reserued Wee
dignitie and to bee cherished for by them Countreys are discouered Familiaritie betweene Nations is procured and politike Experience is attained Whereupon I haue beene mooued by long obseruation to put the worthines of the Customarie Law of Merchants in plaine and compendious writing by vndoubted principles familiar examples and demonstratiue reasons without affectation of curious words more than the grauitie of the Theame in some places did require I haue intituled the Booke according to the ancient name of Lex Mercatoria and not Ius Mercatorum because it is a Customary Law approued by the authoritie of all Kingdomes and Common-weales and not a Law established by the Soueraigntie of any Prince either in the first foundation or by continuance of time And beginning with Time Number VVeight and Measure I doe descend to the three Essentiall Parts of Trafficke diuided into three parts accordingly by comparing them to the Bodie Soule and Spirit of Commerce namely Commodities Money and Exchange for money by Billes of Exchanges The first as the Bodie vpheld the World by Commutation and Bartring of Commodities vntill money was deuised to bee coyned The second as the Soule in the Bodie did infuse life to Trafficke by the meanes of Equalitie and Equitie preuenting aduantage betweene Buyers and Sellers The third as the Spirit and Facultie of the Soule being seated euerie where corroborateth the Vitall Spirit of Trafficke directing and controlling by iust proportions the prices and values of Commodities and Moneys For euen as Merchants are the Instrumentall Cause of Trade euen so is the Exchange for Moneys the Efficient Cause with vs in the course of Trafficke and become Predominant or ouerruling the price of Commodities and Moneys as aforesaid This is manifested by three Paradoxes alluding to the said three Essentiall Parts of Commerce which for a Corrollarie I haue added in the latter end of this Booke with such other worthy obseruations as in the first Chapter are declared And euen as the roundnesse of the Globe of the World is composed of the Earth and Waters So is the Bodie of Lex Mercatoria made and framed of the Merchants Customes and the Sea-Lawes which are involued together as the Seas and Earth In the description whereof I have vsed to make repetition of the Materiall points according as occasion did minister vnto me for to make application thereof for the better vnderstanding of the Iudicious Reader which is the maine Scope that all Writers are to regard and care for The meanes whereby the differences and controuersies happening betweene Merchants in the course of Trade are ended is also declared which most of all require Breuitie and Expedition and had need of a peremptorie proceeding as was inuented for the Common Law of the Realme of England the due commendation whereof is added heereunto shewing also how of the same there might bee made an Art or Science and what obseruation of other Lawes are concurring with ours both in the strictnesse of Law and the lenitie of Equitie most consonant with the Law-Merchant the knowledge whereof is of so great consequence that without it all Temporall Lawes are not compleat but imperfect The Scope of all therefore is That the Rule of Equalitie and Equitie may take place betweene Vs and other Nations which Velut Ariadnae caecaregens filo vestigia non modo nos errare non sinit fed etiam efficit vt aberrantes in rectam viam deducamur as hath beene mentioned in our last Treatise of the maintenance of free trade lately published Concluding gentle Reader vpon all the premisses handled as I hope substantially I commend and submit the same to the louing entertainement of the profound and discerning iudgement of the discreet wise and experienced wishing that like matter set downe by the Penne of Apollo they may sound sweetly in your apprehention and giue to your conceit most harmonious Musicke Pleasure and Delight London the 25 of Nouember 1622. Thine to vse alwaies readie GERARD MALYNES A TABLE OF THE CONtents of the first part of Lex Mercatoria or the ancient Law-Merchant concerning Commodities compared to the Bodie of Trafficke Chapter Pag. 1 AN induction to Lex Mercatoria or the Law-Merchant and the antiquitie thereof 1 2 An obseruation concerning Time 8 3 Of Number and the mysteries thereof 17 4 Of Weights and Measures vsed in all places of the world with other obseruations 19 5 Of the three essentiall parts of trafficke namely Commodities Money and Exchange of money by bills of Exchanges 58 6 A geometricall description of the world especially of Europe measured by millions of acres of ground vpon the map 66 7 Of the Commodities of all Countreyes whereby commerce is maintained 70 8 Of Commutation or bartring of commodities 83 9 Of ordinarie buyings and sellings of Commodities 91 10 Of Suretiship and Merchants Promises 93 11 Of the reuolution of buying and selling of Commodities in the course of Trafficke 95 12 Of the transferring and setting ouer of Billes obligatorie betweene Merchants and others 98 13 Of the Nature of Billes obligatorie beyond the Seas and in England 101 14 Of Letters of Credit and Blankes signed 104 15 Of Letters of Atturney or Procurations and Transports and Conueyances 106 16 Of Factors and seruants and Commissions giuen vnto them 111 17 Of the beginning of Sea Lawes 119 18 Of the manner of proceeding in Sea-faring Causes 121 19 Of buying and selling of Commodities by Contracts 122 20 Of Bankes and Bankers 131 21 Of the Fraighting of Ships Charterparties and Billes of Lading 134 22 Of the Master of the Ship his power and dutie of the Master to the Merchant 142 23 Of the dueties and priuiledges of Marinors 144 24 Of the office of Assurances and the ancient custome of the same 146 25 Of Pollicies of Assurances and the substance of them and of contributions 150 26 Of the manner of Contribution or Aueridges 157 27 Of the particulars to be obserued in Assurances 159 28 Of the manner of proceeding for Assurances in case of losses 161 29 Of Shipwrecke and things found vpon the seas 167 30 Of partners and ships voyages 169 31 Of moneys taken vpon bottomarie by the Master of a Ship called Foenus Nauticum 171 32 Of Shipping and Nauigation 173 33 An Abridgement of the imperiall Sea Lawes of the Haunce Townes made in the yeare 1614. 175 34 Of Nauigation and Communitie of the seas 182 35 Of the distinct Dominions of the seas 185 36 Of Customes Subsidies and Impositions paied vpon commodities 193 37 Of Merchants Wagers Stipulations or Conuentions 197 38 Of Merchants markes set vpon commodities 199 39 Of the buying and selling of commodities by Brokers and by the Candle 201 40 Of buying of Commodities by Condition termed Capiticus and selling things vpon casualties 203 41 Of diuiding of commodities by Lots 205 42 Of Assotiations Monopolies Engrossings and Forestallings 210 43 Of Merchants Oppignorations 218 44 Of the proceedings vsed against Bankrupts 221 45 Of Manufactures 229 46 Of
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
and weal publicke Hereupon replication being made by the King fault was found of the generall dearth of all things within his Realme without any scarsitie of the said things seruing for the backe and belly which wee doe attribute vnto you Husbandmen said the King Food deere and no dearâ—h for food is deare and yet there is no dearth The Husbandmen did excuse themselues and laid the fault vpon the Noblemen and Gentlemen for raising of their rents taking of Farmes into their hands and making of Enclosures Noblemeâ— and Gentlemen did impose the cause vpon Merchants and Artificers for selling things dearer than in times past which caused euery man to make the most of his owne according to his profession wherein the Artificers were easily dispensed withall considering their labours and Workemens wages buying also al things dearer So that the fault did wholly remain vpon the Merchants who haue the sole disposing of all Commodities exported and imported for the good or hurt of the Commonwealth which caused the King to enter into consideration of the aforesaid three Essentiall Parts of Trafficke namely Commodities Money and Exchange for Money by Bills of Exchange And ingeniously perceiuing that the vitall spirit of trafficke did consist in the matter of exchange for monyes because the same is the publike measure betweene Nation and Nations and that gaine was the radicall moisture of commerce which had his effectuall power in Exchanges his Maiestie thought good to call diuers Merchants to the consultation of this businesse being within their element to heare their opinion how to remedy the said inconuenience Three manner of Merchants Whereupon his Highnesse obserued three manner of Merchants The first which were the greatest number were ignorant of the fundamentall reasons of Exchanges and being carried with the streame neuer tooke notice of it but were guided therein by ignorant Brokers of Exchanges according to the rule of forraine Nations The second sort of Merchants were those that did altogether practise to make a benefit by Exchanges and Transportations of Monies and neuer did deale in Commodities at home or beyond the Seas and these would not confesse that there was any abuse committed by exchange The third sort of Merchants being the smallest number were men of wisedome and experience and yet they found the matter of Exchange to bee a mysterie vntill examination of the properties thereof and then like good Patriots they tooke a care for the welfare of the Common-wealth The first sort he did not regard because of their ignorance The socond sort he did compare vnto Vinteners Offenders vnfit to make Lawes who are not fit to be called to be Assistants in making of Lawes against drunkennesse and so reiected them But the third sort hee did imbrace as worthie Counsellors to reforme abuses and some of these were of opinion that by reason of the Base Money coyned in the latter end of the reign of King Henry the 8 al the forrain commodities were sold deerer which made afterwards the Commodities of the Realme to rise at the Farmers and Tenants hands and that the same was made deerer through plenty of Money and Bullion Inhaunsing of Siluer altereth the price of things which came from the West Indies and especially because an ounce of Siluer was inhaunced by the said King from fortie pence to fortie fiue pence and afterwards in processe of time was valued at threescore pence and that the operation of the said alteration doth still continue Others said that the prizes of things being risen was of no great moment because it was by denomination and not really for that which was called fortie before was now termed threescore according to the coynes of Siluer valued by the ounce as aforesaid But the wiser sort did goe further and comparing the prizes risen of forraine Commodities farre more than the prizes of our home Commodities they did acknowledge that there was an ouer-ballancing of commodities and found that the course of Exchange for Moneys was the efficient cause thereof For they did obserue that as the elements are ioined by Symbolization the aire to the fire by warmenesse the water to the aire by moysture the earth to the water by coldnesse So is Exchange ioyned to Monyes and Monys to Commodities by their proper qualities and effects whereby it did appeare vnto them First that our Monie being vndervalued in Exchange causeth the price of our home Commodities to be abated and to bee sold better cheape in forraine parts and is also the cause that our Monyes are exported Secondly the Monyes being transported taketh away the liuely course of trafficke of our said Commodities and causeth young Merchants to runne by Exchanges vpon Billes to maintaine their Trade paying great Interest for money which they cannot take vp by their single Bond as they can doe by Bill taking vp the same by Exchange without Sureties Thirdly this causeth young Merchants and others to make rash sales of their Commodities beyond the Seas to pay their Billes of Exchanges whereby they ouerthrow the Markets of others anâ— make them sell better cheape So on the contrarie the coynes being ouervalued in exchange and also inhaunced beyond the Seas caused the price of forraine Commodities to increase more than our natiue Commodities and our Merchants are compelled of course to make returne thereby because they cannot import those ouer-valued monyes but to their exceeding great losse And by exchange they find few Takers vnlesse it be our young Merchants which doe consume their estates by Exchanges and Rechanges For of the said three Essentiall parts of Trafficke Causes of the ouerballanceing of Commodities we haue but the vse of one as they obserued which is the buying of forraine Commodities to make returnes increasing therein the consumption of the said wares and not our owne monyes remaining hereby plentifull beyond the Seas the rather for that Bills of debt are as readie money passing betweene man and man causeth with them a liuely course of Trade whereby their Commodities are aduanced in price and sale neither are they compelled to sell them but at their price because they find money at interest at fiue and six in the hundreth This plentie of money is daily increased by our Merchants trading Spaine and all others who doe diuert the Royalls of Spaine from vs because of the inhaunsing of monyes beyond the Seas where they haue 25 vpon the hundreth gaine when with vs they make but 10 ê‘ cent This gaine is practised by exchange and would otherwise bee but imaginarie as shall be declared hereafter whereby we shall find that the said Exchange is still predominant and ouerruling the Monyes and Commodities CHAP. VI. A Geometricall Description of the World especially of EVROPE Measured by Millions of Acres of ground vpon the Mappe The Measure is one Million or ten hundreth thousand Acres THE Circumference of the roundnesse of the whole Globe of the world composed of Water and Earth is accounted to bee
triall in Law it was adiudged to be a sufficient discharge for them all in nature of a generall acquitance These obseruations at the Common Law and such like Booke cases as I haue put downe I hold to be necessarie for Merchants to know albeit wee handle the Law-merchant in this Treatise and not matters of the Common Law If you take beyond the Seas any Bill Obligatorie for money deliuered vpon two or three liues or for wagers or layes which are conditionall Bills Obligatory vpon two or three liues let the partie be put to prooue if vpon proofe of liues make the Bill payable at a day certaine vnlesse one of the parties were dead whereby the partie is bound to pay or else to prooue the decease of the one on the contrarie if you make the Bill to be payed if they be all aliue or liuing then must you prooue they be liuing To conclude Abundans Cautela non nocet Finally if a Bill be thirtie yeeres old and neuer demanded or questioned it is void by the Ciuile Law and the Law or Custome of Merchants doth not take any knowledge thereof CAHP. XIIII Of Letters of Credit and Blankes signed THE Credit of Merchants is so delicate and tender that it must bee cared for as the apple of a mans eye Hence it doth proceed that Letters of Credit are had in such reputation that the giuer of them will be well aduised before hee doe make them and the partie to whom they are directed will be carefull to accomplish them for it doth concerne both their Credits The giuers Credit of the Letters will bee had in question of insufficiencie known to the other that he doth not accomplish them or he that doth not performe them may bee thought to be weake and to want meanes to doe the same Definition of Letters of Credit To make Letters of Credit is properly a Participation of Credit to another which is performed as followeth A Merchant doth send his friend or his seruant either within the Land or beyond the Seas to buy some commodities or to take vp money for some purpose and doth deliuer vnto him an open Letter directed to another Merchant requiring him that if his friend such a one the Bearer of that Letter being either his friend or seruant haue occasion to buy commodities or to take vp monyes to the value of so many hundreths or so many thousand pounds in that place or thereabouts that hee will either procure him the same or passe his promise Bill or Bond for it and hee will prouide him the money or pay him by exchange or giue him such satisfaction as hee shall require the partie to whom this Letter is directed will accordingly doe his endeuour and performe the request of the other and keepe the Letter for his assurance or securitie and what hee doth thereupon vndertake is made apparant by such Writings or Euidences as hee taketh of the said Bearer of the Letter that thereupon hee may bee well dealt withall accordingly But if it should fall out that for some knowen cause to this partie he doth not accomplish his request contained in the said Letters of Credit Then the Bearer of the same keepeth the said Letters and returneth them vnto the giuer without any other proceeding Protests for the non-performance of Letters of Credit vnlesse it be in case where this partie is a debtor to him that gaue the Letters of Credit and then he must take witnesses of it and with a Scriuenor or Notarie make a Protest against him protesting to recouer of him by all lawfull and conuenient meanes all the damages charges and interest which hee or any other shall sustaine thereby by reason of the nonperformance of the said Letters of Credit and that in time and place as occasion shall serue which Protest is a sufficient meane amongst Merchants and before any Iudges of the Ciuile Law to recouer the same vpon proofe at all times accordingly But if the partie to whom these Letters of Credit were directed do make a reasonable answere for his excuse and requireth the Scriuenor to put downe the same in the Act or Instrument of the said Protest then is the cause considered withall and the losses and damages may fall vpon another for if the giuer of the said Letters of Credit were a debtor to the other that did receiue them to bee payed by them either by commodities to bee bought or monyes to bee taken vp as aforesaid then the said Protest may serue the receiuer of the said Letters of Credit to recouer his damages of him that gaue him the same wherein the Magistrates will haue a great consideration as a matter whereby the Commerce is interrupted which is the cause also that men must bee aduised on the other side not to bee too rash to affirme the goodnesse or sufficiencie of another mans Estate Credit or Reputation whereby a third man becommeth a loser losse being the greatest hinderer of Trafficke and Trade The Ciuilians therefore haue a Title in their Lawes which is strictly obserued as you shall vnderstand hereafter The Signing of Blankes is also a Custome amongst Merchants whereby they strengthen the credâ—t of their Factors or Seruants in the like occasions which is a matter of great confidence Great confidence among Merchants considering the easie transferring of Bâ—lles alreadie spoken of For a Merchant setting his name to a Blanke paper his Factor or Seruant hath an abilitie to wrong his Master many wayes Therefore such as are prouident doe restraine that power by certaine Couenants or Declarations and yet the same being knowne vnto the parties that doe make vse of the said Blankes might become scrupelous thereupon to be well dealt withall howsoeuer we see what honest and plaine dealing is vsed amongst Merchants and what aduentures they beare to compasse their businesses A Merchant of Antuerp will send his Seruant at Amsterdam to buy him 500 Last of Corne vpon aduice he hath that Corne is spoiled or the Haruest faileth in Spaine Portugall and other places and because he is vncertaine what his Seruant can effect doubting that other men might haue the like aduice and preuent him hee deliuereth Blanke paper by him subscribed with order to his said Seruant that hee shall vpon such an occasion write his Letter vpon the said paper to such a man his Factor at Dansicke in the East Countries to buy for him the quantitie of Corne which he cannot buy at Amsterdam and shall date the Letter as if himselfe had written the same The Factor of Dansicke doth presently performe the Commission giuen him and so the businesse is accomplished complished But in this the confidence may bee as great as in the making of Billes Obligatory and yet the aduenture farre inferiour thereunto for vpon these Blankes there is an Addition to the name or a Precedence in words namely Your louing friend A. B. c. which is impertinent and not to bee vsed in Billes
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
And to conclude concerning Fraightments and Charterpaâ—ties let vs obserue that equitie in all things is to be considered and especially in sea-fairing causes and cauillations are to be auoided as for example A Merchant fraighted a ship with all his furniture by the moneth and putteth into her the Master and Mariners and victualled the same at his charges and maketh a charterpartie with the owner promising to pay for the vse of the shippe and furniture twentie pound euerie moneth at her returne into the riuer of Thames and so ladeth in her for the Straits Equitie in sea-faring causes much to be regarded and to go from Port to Port in seuerall places with merchandise and after two yeares or thereabouts hauing taken her lading in Barbarie commeth for London and by storme and tempest the ship was cast away neere Douer and the goods were saued hereupon the Merchant denied to pay the fraight monethly to be reckoned because the ship did not arriue in the riuer of Thames according to the words in the charterpartie Herein the owner was much wronged for the money is due monethly and the place is named onely to signifie the time when the money was due to be paied for the ship deserueth wages like vnto a labourer or like a mariner which serueth by the moneth who is to be payed for the time he hath serued although he dies before the voyage be ended as we find daily that the East-Indies companie payeth to their wiues or friends The labourer is worthie of his hire The ship is not fraighted by the great to run that aduenture which is noted before neither was she wanting her furniture of Cables Anchors Sailes Ropes or any thing whereby she was disabled to performe the voyage and might be the cause of the casting away for if it were so then there were great cause giuen to denie the payment of the fraight Againe where it was alleaged that the said owner hath made assurance vpon the ship for more than the same was worth and did thereby recouer of the Assurors a benefit towards his losse this did not concerne the Merchant but the Assurors and if the assurance were orderly made the said Assurors haue paied the same duely that is to say If the pollicie or writing of assurance did declare That the owner did value his ship in such a summe whereof hereafter you may read in the proper place intreating of the nature of Assurances A Merchant valued one barrell of Saffroh at 1000 ll hauing priuately put so much in Gold in the same the Gold was taken but the Saffron was deliuered and the Assurors did pay for the Gold And the like is for Pearles or other things so valued Item when Coffers Packes or Pipes and other marked commodities or goods are deliuered close packed or sealed and afterwards shall be receiued open and loose the master is to be charged for it vntill a due triall and that consideration thereof be had he must also answere for the harme which Rats do in the ship to any merchandise for want of a Cat. The Merchant on the other side is to be bound by the said charterpartie to pay the fraight of the goods by him laden either by the Last Tunne or by the Packe and Fardel according to the agreement accounting for a Last Tunne or other thing after the rate of a Tunne lading wherein pesterable wares which take a great deale of roome are excepted and must be agreed for and the goods laden are liable for the paiment of the fraight The Merchant likewise doth couenant to pay Pilotage if a Pilot be vsed to bring the ship into the harbor also primage and petilodmanidge to the master for the vse of his Cables to discharge the goods Pilotage Primage Petilodmenidge and to the mariners to charge and discharge them which may be sixe pence or twelue pence for the Tunne lading with some other clauses and agreements made betweene the said Merchants and Master wherein it is not a misse to limit a good summe of money on either side to be paied for the performance of the charterpartie and to couenant the same by the said charterpartie whereof I do here prescribe but one forme considering the diuersities of conditions therein vsed as the Merchant and Master can agree which euery Scriuenor doth vsually make accordingly as in this Chapter is rehearsed * ⎠* CHAP. XXII Of the Master of the Ship his power and duetie of the Master to the Merchant Law of Oleron THe whole power and charge of the ship being committed to the Master requireth a staied man and of experience whereunto the Owners are to take great heed for his power is described partly by the Owner or setter forth of the Ship and partly by the Common-law of the sea by meanes and vertue whereof the Master may if need be borrow money in a strange countrie with the aduice of his companie vpon some of the tackle or furniture of the Ship or else sell some of the Merchants goods prouided that the Merchant be repaied againe at the highest price that the like goods are sold for at the market which being done the fraight of those goods so sold and repaied shall be also repaied by the Master to the Owner of the Ship aswell as the fraight of the rest of the Merchants goods except the Ship perish in the voyage in this case onely the price that the goods were bought for shall be rendred and for no other cause may the Master take vp money or sell any of the Merchants goods although it were in the danger of ship-wrecke The dueties of a Master of a Ship c. Such is the duetie of a Master of a Ship that is prouident that he ought not to make saile and put forth to sea without the aduice and consent of the most part of his companie especially when the weather is stormie otherwise he shall answere the damages that commeth thereby principally if he haue not prouided an expert Pilot or if the Ship happen to fall ouer in the harbour The Master shall be punished also by damages if the ouerloope of the Ship be vntyth or the Pumpe be faultie or a sufficient couering be wanting especially for Corne Victuall and such like commodities He is also before his departure to deliuer the names of all the persons which he is to transport and of his mariners which with vs is but lately established and at his returne he is to deliuer a true Inuentorie of the goods of any persons which shall happen to depart this life in that voyage not onely because his kindred and friends may haue intelligence of it but also because their goods may bee safe and forthcomming for one whole yeare of which goods in the meane time the bedding and appurtenances may bee taken by the Master and his Mate to their vses as also such clothing and other things then vpon his bodie may bee deliuered to the Boats-man and the
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
thereof and not to the lender I meane of perills proceeding by storme violence spoyle or such like occasions which cannot be eschewed by any diligence of the borrower Therefore if the borrower employ that mony vpon commodities and that the said commodities become forfeited for non-paiment of Custome the lender shall be cleere of any damage thereby It is also to be noted That money lent at maritime interest without hazard but vpon securitie should pay no profit otherwise than the money lent at interest because the securitie is giuen ouer and aboue for the lenders assurance Againe suppose it were money not entred in the pursers booke and yet lent for the need of the companie within the ship during the voyage if before the day appointed for the payment ship-wrecke or spoile happen then should the losse come in contribution betweene them because if that money had beene lying by the lender still vnlent it had beene in common daunger with the rest but if the time appointed were past with the perils aforesaid then shall the borrower pay that money so borrowed free from all contribution Further in case the borrower detaines any such money lent as aforesaid beyond the time appointed for the repaying he shall at his returne not onely pay the profit agreed vpon before the voyage but also augment the same according to the longer time and shall pay the profit of that first condition accordingly Some Merchants there are that will deliuer money in nature of Vsura Maritima ioyning the vse money and danger of the seas either vpon the ships or goods all in one consideration and so take 25 or 30 vpon the hundreth at the returne of such a ship from such a voyage wherein they haue an eye to the person that taketh vp the money making account to be better assured by a vigilant eye vpon a Merchants trafficke whom they must trust if they will make benefit of their moneys rather than to deliuer their money vnto another of whose dealing they cannot giue so good a iudgement Combination of interest money and assurance As for example They know that such a Merchant doth deale for Turkie and that in knowne ships trafficking that way the deliuerer of money goeth vnto him and maketh an offer to lend him 1000 ll for a voyage to be made with Kersies and Tinne to Tripoli and that he wil beare the aduenture of that money during all the voyage which he knoweth is commonly performed within the yeare for saieth he you know that I am an Assuror and you do vse to assure your goods and to increase your trade you take vp moneys at vse of others in smaller summes it may therefore be verie commodious for vs both to include the price of assurance and the vse money together and so with the returne you shall be prouided to pay me againe if God do prosper the ship and make homewards speedily if not I can demand nothing of you and must be contented to beare the losse with patience Hereupon a contract is made ten in the hundreth is accounted for the vse money Contract of interest and assurance iointly and tenne in the hundreth for the aduenture of the goods outwards and another ten in the hundreth for the aduenture of the returne homewards in conclusion there is 30 pro Ceinto So that vpon the returne of the said ship he is to haue 1300 ll within such a time as they commonly agree be it one or two moneths after This is a good bargaine for the lender howsoeuer the borrower of the money may speed for the lender hath not to do with the sale of the goods nor with the returne of them but he will be sure that at the returne of the ship he may haue his money payed him not onely by the prouenue of the Kersies and Tinne which was bought with the thousand pounds he lent but also with the returne of all other goods which the borrower did lade more in the said ship for Tripoli as aforesaid and in like manner for other places CHAP. XXXII Of Shipping and Nauigation VNder the name Nauis is all kind of shipping vnderstood and Nauigium is a generall word many times vsed for Nauigation So that it is not of any moment to describe the diuersitie of ships as Carracks Galleons Galeasses Galleys Centaureis ships of Warre Flyboats Busses and all other kind of ships and vessells But that we may vnderstand the sea lawes and customes obserued therein appertaining to the law Merchant as also those things which properly may concerne ships as followeth All ships being made for failing are to be prepared accordingly both for goodnesse and sit timber and conuenient building as for the placing of the Rudder of the ship vpon the right paralell of the keele of the ship The Paralell of Equalities for therein consisteth a maine point for swift sayling which is found to be a great defect in many ships partly new built and repaired for new timber and old mixt together doth neuer indure long especially if the ship be not repaired in time before she be much decayed which often commeth to passe when the owners of it cannot agree therein The law therefore is commendable That if the most part of the owners or those that haue the greatest interest and part therein cause the same to be repaired that he who prouideth not his money for his part within foure months after shall lose his part to the other owners if he refuse to be conformable with the rest or with his partner in the said ship who did disburse the same and moreouer he is to pay the consideration of the money also for the time that the same was laied out Some make a question Whether a ship so amended repaired shal be taken to be the same But it is cleere that so long as the keele of the ship remaineth it is still the same ship and not to be called another ship so is it alwaies belonging vnto the owners of the ship although they had fabricated amended the same with another mans timber for the selling of a ship is not a sufficient course to alienate the same but the quiet possession thereof must be deliuered vpon the sale made And although the sale be made and the possession of a ship deliuered if neuerthelesse it afterwards shall appeare that some haue committed piracie with the same the party who lost his goods may lay an action to the ship in place conuenient Hence the prouerbe ariseth A ship which cannot drinke of all waters That such a ship cannot drinke of all waters Albeit this law is not generall no more than a ship driuen by tempest into a Harbour or Port is subiect to pay custome there albeit some demaund the same although no bulke be broken which seemeth to be vnreasonable A contract therefore taketh his strength from the parties contracting and the place where it is made according to the customes thereof It is therefore
with six weekes respit vpon the condition after twentie pound were equal nineteene and twentie one and without respit of time presently to say to be deliuered at three moneths the fiftie Last at twenty pound amounteth to 1000 ll you aduance the interest warehouse-hire charges lackage besides the commoditie that you haue bought with the money a bargaine of fiftie Last when it would pay but 2 ½ Last vpon condition to take or leaue One hundreth pounds deliuered out to pay the first yeare one pound the second yeare two pounds increasing euerie yeare one pound amounteth in fifteene yeares to 128 pounds in twentie yeares 210 ll to the 20 adde one multiplie with ½ of 1 to 20 is 10 and so of all other augmenting be it of 1 2 6 8 c. The Conditions are diuers The certainetie of the money which you do aduenture to losse being well considered of may turne you to gain especially in places bordering vpon the seas or riuers to serue the In-land people as Calice Dunkerke for Flanders Henault Arthois and other prouinces The like might be practised in many coast townes of England But strangers are more addicted to make casuall bargaines for buying of commodities For selling of commodities vpon casualties therein are we more frequent especially of things not vendible at all times to sell them payable vpon the returne of such a voyage from Venice Turkie or other places or vpon the decease of such a man or woman or at a marriage day or the first second or third child either male or female In all which sellings money and wares may be ioyned together But in deliuering money with wares at interest the contract is vsurious by the law * ⎠* CHAP. XLI Of diuiding of Commodities by Lots ALl extreames being vicious hath giuen me cause to write this exorbitant chapter concerning the diuision by Lots because there are men in this age so precise by some called Puritanes that they can be well contented to buy a commoditie in companie with their neighbours when their owne meanes and credit cannot compasse the same but afterwards to diuide those goods by the Lot between them they are verie scrupulous and hold it a prophane action and they are as they say bound vnto it of necessitie or else to take that which their partners do giue vnto them and so let them cast the Lot amongst them and what remaineth vpon equall diuision they will rather accept of than that any Lot should be cast for them yet they will more fauour the Lot than the casting of the dice or the measuring by strawes To these weake stomakes thus troubled with a Nausea I would not minister any Cordials Electuaries or Potions to rid them of that distemperate humour but a plaine vomit is fittest the Moone being in Aries or Capricorne which must be thus preparéd As in Gods Church there neuer wanted true religion reuealed from God himselfe so amongst heathen and all nations there neuer wanted meanes to acknowledge a soueraigne power which caused them to deuise a certaine shadow of religion by worshipping their imaginarie gods with a kind of diuine seruice the contemplation and vse whereof they did esteeme to be the highest degree of felicitie or summum bonum in so much that euen in their blindnesse they did attribute the successe of all things to proceed from aboue vsing for to attaine to the knowledge of the diuine pleasure diuers means of Diuinations Imprecations Oracles and casting of Lots because they wanted the illumination of the most glorious and transparent Sunne of the word of God whereby we are taught to obey the knowne will of God and to reuerence with admiration his secret will not declared vnto vs. Diuinations and imprecations being not accompanied with visible and sensible apparitions caused all Oracles to be in greater veneration as that of Dodona where Iupiter answered striking the Caldrons with a siluer wand That of Iupiter Hammon in the confines of Aegypt That of Delphos where an old woman answered in Greeke verse That of Latona and that of Motenzuma in America and others All which ceased when and where the Sunne beames of the word of God did disperce the mistie clouds of darknesse and then all was abrogated and onely the casting and drawing of Lots did remaine as a custome of great antiquitie amongst all nations recorded not onely by prophane Historiographers but also by diuine Prophets and Euangelists To which purpose we may obserue two especial examples in the holie Scripture Ionas 1.7 The first is of Ionas the Prophet who flying from the presence of God in a Ship sailing for Tarsis was exposed to a verie great tempest at the seas endangering the ship and mariners to be cast away at euerie moment when it pleased God to manifest by the Lot drawne or cast by the Master and Mariners That Ionas was the cause of the said tempest Luke 23.24 Iohn 19 24. Psal. 22.19 The second is of the Lot cast by the Souldiers vpon the garment or coat of our Sauiour Christ according to the Prophesie of Dauid allotting the same to some particular person according to his good will and pleasure But least these men should obiect That the aforesaid examples are actions of the Heathens and but mentioned in the holy Scripture we pray them to remember That the children of Israel had no other meanes propounded vnto them to obtaine victorie against their enemies by remouing the offence of the interdict or forbidden goods Ioshua 7.14 but the vse of casting the Lot which fell vpon Achan who had hid some of the forbidden goods which were to be burned according to the commandement of God who was pleased that Iosua should find out the man by Lot and not by Reuelation Acts 1.26 The Apostles hauing appointed Barsabas and Matthias and prayed the Lord to shew them Whether of the two should succeed in the Ministerie of the Apostleship from which Iudas by transgression fell gaue forth their Lots as the Scripture saith and the Lot fell vpon Matthias Ioshua 14.2 What shall wee say of the Diuision and Partition of Lands and Goods when the land of Canaan by Lot was diuided amongst the Israelites And the like vse remaineth vntill this day amongst diuers nations The saying of the Wise-man being true That the Lot is cast Prouerb 16.33 1.14 18.18 but the successe thereof is according to the prouidence of God which caused him to speake so often of Lots in his Prouerbes Plutarch The Grecians did make election of their officers by the drawing of Lots which they called Ostracisme according to which the Venetians in their rare gouernment of Aristocracie do at this day vse the like by their Ballotting and so do the Russians in their gouernment of Monarchie So to conclude all Nations doe continue the vse of Drawing or Casting of Lots in all occasions Wherefore I hope these precise men will bee hereafter more resolute to accept of their part
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
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
occasion to aske him Triall of the Pixe whether the last and supreme triall of the moneys which was made commonly once a yeare before the Lords at the Star-chamber was done in like manner And he answered me it was and withall he desired me to resolue the question betweene the Warden and the Mint-master concerning the two pennie weight of siluer hid from report as it is supposed according to our former conference I told him that according to the issue ioyned between him and me that the Mint-master had not pocketted vp any such two pennie weight of siluer as his account was charged withall I would make that plaine by demonstration which he said was his desire whereupon I framed my answere as followeth Foure Assayes of bullion and money I make no doubt sir but you haue marked my obseruations of the foure seuerall Assayes made concerning bullion and money namely the first of the Ingot before melting the second of the pot Assay after melting the third of the moneys compleate made thereof and the fourth and supreme triall of moneys at the Star-chamber as it were before the King and his Councell all which being done in manner alike you haue from time to time told me that their operation or effect was also alike for the triall of the Ingot there the copple had drunke in two pennie weight of siluer for the Pot Assay there two pennie weight was drunke in also the Assay made of the compleat moneys hath drunke in the like two pennie weight and last of all the highest triall of all hath drunke in the like two pennie weight of siluer how can it then be pocketted vp by the Mint-master when it was in the bullion remaining in the pot found in the moneys and confirmed to be so by the supremest trial and why should the Mint-Masters account bee charged either with an imaginarie or substantiall thing which he neuer had or inioyed A Tacite Resolution To this the Assay-master answering rather by signes than words said It was otherwise taken and vnderstood and himselfe tooke now better notice of it and wished that Truth might preuaile according to the saying Magna est veritas praeualet praeualuit praeualebit and so ended our supposed discourse Now let vs come to the mysteries of the Mints beyond the seas to recompence them that might take offence for discussing the premisses and let vs be like Nathaniel in whom there was no guile Qui vadit planè vadit sanè howbeit discretion is requisite The assayes beyond the seas are most made according to the proportion of the marke which is eight ounces Troy and they take twentie graines to make their assayes by which is correspondent with our fifteene graines Thirtie two grains beyond the seas is more than 24 grains with vs. for they diuide their English or penny weight in thirtie two Ases or graines which from twentie foure vnto thirtie two differeth one third part so is fifteene vnto twentie also a third part For this marke weight of eight ounces is twofold the one is called English weight and the other French weight in the Low Countreys But the English weight is most vsed which is diuided into eight ounces euery ounce twentie English or penny weight English marke and euery English thirtie two graines as aforesaid is 5120 graines to the marke This marke and one halfe maketh within a little our twelue ounces Troy for the pound weight being in graines 7680. The French weight called penny weight is also eight ounces French marke euery ounce foure and twentie penny weight and euery penny weight twentie foure graines is 6912 graines for the twelue ounces or 4608 graines for the eight ounces These graines are also diuided in twentie foure Garobes or Primes and the Primes in twentie foure Seconds and the Seconds in 24 Tercies or Malloquen which is superfluous notwithstanding all the said weights and diuisions to make assayes they vse another weight Assay weight which euery man maketh according to his fancie but most commonly they will diuide the marke in twelue deniers or pence and the penny into twentie foure graines and then graines subdiuided of paper making ⅛ 1 10 and 1 32 part of a graine which concurreth neerest with our assay weight for if one pound of siluer doe containe 1 12 part copper they call this eleuen deniers fine as we say eleuen ounces fine For the gold likewise they doe vse the same weight accounting for euery denier or penny weight two carrats so twentie foure carrats for twelue deniers or ounces and consequently eleuen deniers is twentie two carrats c. So the gold marke is twentie foure carrats Gold marke Siluer marke a carrat is twelue graines so 288 in the marke So the siluer marke of twelue deniers of twentie foure graines are 288 graines also which are bigger graines diuided into foure Primes or Siliquas is 1152. They vse also a manner of speech to say Twelue shillings to the marke pound Marke pound euerie shilling twelue pence and euery penny twentie foure graines is 3456 graines in the marke all which is done to make the knowledge of these things intricate In like manner for the sheiring of their moneys Sheire monies they will for euery peece make a penny as if there be made seuentie eight peeces out of a marke they will say it ☞ holdeth sixe shillings and sixe pence in the sheire or for 62 peeces fiue shillings two pence and so obscure things to take aduantage vpon others For the Mint-masters of the Low Countreys and Germanie are verie experienced in Mint matters and the assayes being made vpon the graines may deceiue much if by triall the calculation be not rightly made and if the said Mint-masters were not subtile yet the Generalls which follow the Prince or State doe nothing else but studie these things alwaies therefore let vs obserue more particulars of their proceedings as followeth In the making of coynes of gold and siluer they will vse many times to make peeces of fine gold and courser gold as the Emperiall Royall and the halfe Royall the one twentie three carrats 3 ½ grains and the other but eighteene carrats or the Flanders Crowne of 22 carrats In Germanie the ducat and the gold guildren which for workes being mixed are seruiceable admitting by conniuence the melting of the moneys rather than for want of it Bullion should not be brought to their Mints therefore they also take little for the coynage because it should sooner come vnto them than vnto other Minters where the coynage or seignoriage is great and albeit the same bee but small yet will they find meanes to make other Princes to pay the same Moneys made for transportation and cause moneys to be made for transportation especially for the East countreys to buy corne to bring the same vnto their Magazins whereby trade is increased and Spaine and Portugall supplieth the same by suffering moneys to bee
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
as particular shall be bound to haue this our ordinance with the figures alwaies readie vpon their Bankes or Counting-houses as also a proclamation fit to be affixed in print declaring the Valuation of the said coynes to the end euerie man may gouerne himselfe accordingly vpon forfeiture of fiue Netherland Ryders to be paied as often as they shall be found without them in their said Offices or Counting-houses 20 Prohibiting all Receiuers Bankers and Exchangers their Deputies and Officers together with all Merchants or other persons of what qualitie and condition so euer to cull out any coynes to separate the light ones for to be issued and with the weightie ones ' to make a benefite vpon forfeiture of twentie and fiue Neatherland Ryders 21 Prohibiting also that none of the coynes of Gold and Siluer which are valued by this Our Proclamation vnlesse it be the Spanish Ryall of 8 with his Proportions shall be deliuered into any Mint to be molten to which end we commaund all the Mint-masters of these Prouinces that they do not receiue any of the said coynes for to melt them There will be no cause to do it and if any be so brought vnto them to detaine the same and to giue notice thereof vnto the Generalls of the said Mints to proceed therein as it shall appertaine And whoseuer shall be found to go about to sell the said coynes or hath sold or broken the same We will haue the same to be forfeited and the double thereof ouer and aboue 22 Prohibiting also the importation of any coynes not valued by these presents either of Gold or Siluer to be brought in for to be distributed 23 And for the better discouerie of the said first authors or importers of prohibited coyns We do command all Our Officers to do their vtmost endeauours to inquire of those with whom they shal find any of the said coynes of whom they had the same and so from person to person vntill the first importers causing them to be punished as aforesaid vnles some can name his first author wherwith he shal be cleered of the said forfeitures and if he do voluntarily accuse his author he shall inioy the one third part of the same and the said first importer shall be banished out of all the said Prouinces 24 If any Officers shall make doubt that any of the said persons haue not dealt well or misbehaued themselues then shall they with the Magistrate haue authoritie to put them to their oath of whom they haue receiued the said coynes and at what price they haue receiued and paied out the same and if they denie to declare the same by oath hee shall be taken as conuicted of the said trespas according to this ordinance But if without equiuocation he will roundly declare the trueth wherby the fault shall appeare he shall be pardoned of the forfeiture and also enioy one third part of the offendors penaltie if it be to be had 25 And in like manner they may and We do authorise them by these presents to seize and open coffers trusses and the letters of Messengers where they haue suspition to containe any coyne Prouided alwayes that the said opening be done in the presence of him to whom the said coffers trusses or letters were directed if they can instantly come at them besides some one of the Magistrates where the said seizure is made to the end that thereby the name may bee knowne of him who hath sent the said moneys at higher prices and to no other effect 26 All which penalties and forfeitures shall be distributed the one third part to the poore of the towne where the penaltie falleth the other third part to the accuser and the other third to the officer who shall challenge the execution to be done vnlesse it were that the said forfeitures did exceed the summe of fiue thousand Guilders In this case the one halfe shall bee for the benefit of the common cause and the other halfe to be diuided proportionably betweene the said three parties And to the end the accuser herein may doe his vttermost diligence his name and person shall be concealed so long as possible it may be 27 And herein we vnderstand that not onely the person which hath committed the said trespasses shall bee subiect to answere for himselfe but also for them of his family The Husband for his wife the Parents for their children the Masters and Mistresses for their seruants men or maides vnlesse it were the said seruants had done the same without their priuitie or knowledge 28 And to the end that this our present ordinance may bee kept and fully accomplished in all her points We doe order and command all the officers of our said Prouinces and euerie one in his office to haue an especiall care and regard of the infringers and transgressors of this our ordinance and to bring them before the Magistrates of their iurisdiction Without that the said forfeitures be any wayes diminished vpon penalty to be deposed of their offices and euer after to be disabled to serue in any office without that they may excuse themselues by ignorance or by a generall transgression of our ordinance which excuse shall not be auaileable vnto them but our intention is to punish them for their negligence and sloth 29 We doe further command all Magistrates and Iustices that setting aside all other businesses and affaires they doe proceed herein summarily onely the truth of the fact being knowne to the condemnation of the transgressors as soone as by two witnesses they shall bee conuicted And â—heerein shall the testimonie of the like offender be admitted and their sentences shall be without appeale or any preiudice 30 We will and command That whensoeuer it shall manifestly appeare that the persons haue transgressed and are found vpon the fact or that by two witnesses the same can be prooued against them the offendor shall be bound to deposite the said forfeitures before he shall be admitted to defend himselfe by the Law whereunto he is to be compelled instantly by the apprehension of his person and otherwise And if it be found that hee is not able to pay the said penalties hee shall be punished by corporall punishment as the cause shall require 31 The Iudges and Magistrates shall haue no authoritie to diminish or moderate their decrees and sentences concerning the said penalties vpon forfeiture to pay themselues the double value thereof and if any of the said offendors should obtaine of the higher powers any fauour or abatement yet shall they bee bound to satisfie the accuser and the officer for their said part proportionably according to the said forfeitures 32 And to the end that Our ordinance may bee better obserued We doe will and order That the Councell of State of the said Prouinces vnited shall call before them the Receiuer Generall of the said Netherlands the Receiuer of the Contributions Confiscations and other ordinarie meanes which are letten to ferme or to be
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
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
clothes which cost him six hundreth pounds and the Custome and charges fortie pounds And hereupon hee armeth two accounts vnder the name of voyage into Spaine or voyage to Lixborne or some other such name of the said commodities as euerie man thinketh good so these voyages are Debitor for the commodities customes and charges therof and the Magazin is discharged and made Creditor as abouesaid Magazin discharged and likewise Cash is made Creditor hauing payed the Customes Impositions and charges aforesaid This Merchant not willing to beare so great an aduenture of sixe hundreth pounds or seuen hundreth pounds in one Ship doth cause himselfe to be assured of three hundreth pounds in euerie Ship Money for assurance at foure and fiue vpon the hundreth and payeth the same vnto the assurors Hereupon he maketh the said voyages Debitor and Cash Creditor for so much namely thirteene pounds for Lixborne and sixteene pounds for Seuill and so committeth the same to Gods will and pleasure and all these parcells are entred into the Bookes Money receiued And B. M. the Mercer doth pay more two hundreth pounds whereof Cash is made Debitor and B. M. is made Creditor and discharged of the 3 hundreth pounds he did owe Money deliuered aâ— interest whereby the Merchant finding some money to spare he deliuered out two hundreth pounds at interest vnto another Merchant for sixe moneths and thereupon he maketh this Merchant C.D. Debitor Cash Creditor declaring to haue his bond of three hundreth pounds for the payment of two hundreth and ten pounds at such a day in such a place Interest mony And for the interest money of tenne pounds hee maketh him likewise Debitor and the account of profit and losse Creditor But some men do make a particular account of interest which is at a mans pleasure Now the two hundreth pounds which N. W. oweth are due Moneys owing continued at vse and hee desireth to keepe the money for sixe moneths at interest and to giue his bond for it which is so agreed betweene them the interest is ten pounds for which hee maketh likewise N.W. debtor and profit and losse Creditor The Merchants estate standeth now thus View of a Merchants estate by the Bookes at Hamborough one thousand two hundreth and sixtie pounds at Seuill seuen hundreth thirtie and sixe pounds at Lixborne sixe hundreth fiftie and three pounds at interest foure hundreth and twentie pounds with the interest and but little money in Cash because of his daily expences Suppose now that the Ships of the Companie of Merchant aduenturers are come from Hamborough Returne of voyages and our Merchants clothes are sold to diuers Merchants and others there to bee payed at sixe and sixe moneths Money paied by way of anticipation for which they haue giuen their Bills obligatorie to pay the same accordingly But some of these Merchants are desirous to pay their money by way of anticipation hauing interest allowed them for it after the rate of eight in the hundreth for the yeare and so pay readie money to our Merchants Factor and therevpon the said Factor maketh ouer by exchange foure hundreth pounds sterling by two Bills of exchanges to be paied here at vsance which is two moneths after the date of the Bills by Merchants strangers Money made ouer by exchange These Merchant strangers doe accept the said Bills of exchanges and you make them seuerally Debitors for the same and your Factor of Hamborough Creditor for the said foure hundreth pounds Moreouer your Factor hath set ouer some of those Merchants Billes of debt for forraine commodities and hath taken in paiment two Cases of Veluets Veluets bought beyond the Seas which did cost eight hundreth pounds and hee sendeth them in these Ships with an account of the charges customes and factoridge of the said Veluets amounting to fortie pound so the Veluets cost in all eight hundreth and fortie pounds for this you make a new account for Veluets or the returne of the Hamborough voyage Debitor and your Factor Creditor for the said eight hundreth and fortie pounds Money taken vp by exchange as aforesaid And because you are to pay great Custome and Imposition of these veluets and your Cash is not well prouided you take vp by exchange here sixtie pounds to be payed by your Factor at Hamborough and deliuer your Bill of exchange for it and receiue the money now Cash is made Debitor for the same and your Factor that is to pay the money is made Creditor for it accordingly Cloth sold beyond the Seas and account sent of them This Factor doth now by land send vnto you the account of your hundreth clothes sold vnto diuers Merchants as aforesaid and this account is made in Hamborough or Lups money and it is supposed amongst Merchants that six and twentie shillings and eight pence of their money is correspondent to our twentie shillings sterling according to this you reduce your Hamborough money into sterling money after the rate Hamborough money reduced into sterling and your Factor in the said account hath alreadie deducted his factorige customs and all charges incident vpon the clothes sold by him so that casting your account vpon the nett Prouenu of your clothes hee hath receiued cleere money one thousand foure hundreth and eightie pound sterling heereof now you doe make your Factor Debitor and the voyage for Hamborough Creditor and comming to your Leidger Booke you find the said voyage Debitor one thousand two hundreth and sixtie pounds and now to be made Creditor one thousand foure hundreth and eightie pounds so you find here is two hundreth and twentie pounds cleare gaines by the account vnlesse you should become a loser in the veluets for the money deducted for interest to him that paied before his time is alreadie deducted in the account of clothes so that to cleere this account of the voyage you make the same Debitor for the said two hundreth and twentie pounds and the account of profit and losse Creditor for the same You haue now sold your two cases of Veluets the one for readie money and the other at sixe and sixe moneths dayes of paiment to W.W. Mercer amounting to fiue hundreth and twentie pounds whom you haue made Debitor for the same and your veluets Creditor and for the other you haue made Cash Debitor for foure hundreth ninetie pounds which you haue receiued and likewise your Veluets Creditor for the same summe so in both one thousand and ten pounds and casting vp your charges Customes and Impositions of your Veluets you find them to amount vnto 80 ll and for this summe you make Veluets Debitor and Cash Creditor so your Veluets did cost with all the said charges 920 ll and they were sold for 1010 ll so there is 90 ll aduanced by the said Veluets whereof to cleare this account you make Veluet Debitor and Profit and Losse Creditor as aforesaid Hauing now money in
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
shillings or seuentie two pence and 72 ½ pence for the said French Crowne in Exchange when the Crowne in specie is paied him in France for seuentie fiue soulz The like consideration are we to haue of the Dollers of Germanie of the Polish Guilders or Florins and all other coynes inhaunced aboue the Par of Exchanges heretofore calculated amongst Merchants and especially with the admittance of Princes The operation heereof in the course of trafficke is of verie great moment more than in times past when the difference was not so sensible which made me to compare the same vnto the serpent Aspis which stingeth men in such sort that they fall into a pleasant sleepe vntill they die which is meant by particular persons whose estate is consumed by running vpon Exchanges Or like vnto the crueltie of the Planet Saturne which maketh his spherecall course in thirtie yeares with great operation although wee doe not so sensibly perceiue his motion which is meant in the reuolution of State affaires in progresse and continuance of time CHAP. XI Of Attachments and Arrest THE Common Law of England doth not vse the course of Attachments as is vsed by the Custome of the Citie of London which was borrowed from Merchants actions obserued in forraine Countreys and was thereupon by Custome here established it being a readie way whereby men may secure themselues of present meanes if they doubt of their debtor For if the creditor do know any debts or goods belonging vnto his debtor he may instantly vpon a specialtie to be exhibited vnto the Magistrate haue authoritie to attach the said debts and goods in the hands of any person where he findeth the same onely Priuiledged places excepted or Ecclesiasticall persons in most places To this Attachment if the partie doe appeare and put in baile either by himselfe or his Atturney then the Attachment is ipso facto void and declaration being put in dependeth in Court vpon the said baile and if no declaration bee put in the next Court day or within three dayes then the said baile is likewise discharged by the said Custome albeit this is not so duely obserued as the Customarie Law of Merchants requireth But if the partie doe not appeare and the Attachment doe proceed three Court dayes or three defaults to be entred then for the fourth default judgement or sentence is giuen that hee who did make the Attachment shall recouer the said debt and goods and take the same into his owne possession vpon good sureties to be put into the Court to answere the value thereof within one yeare and a day in which time the proprietarie may disreason the said recouerie by disprouing the other parties surmises or allegations prouing that the specialtie was paied whereupon the Attachment was grounded For the Attachments beyond the Seas cannot be made vpon any pretended Action but must bee done vpon a Bill of debt and many times the Magistrates will sequester the goods or debts into their owne hands to auoid incertainties of honest dealings Besides Merchants will be aduised before they make Attachments because both the Ciuile Law and Customes of Merchants doe impose great damages vpon the partie if hee haue made his Attachment without iust cause to the ouerthrow of the other parties credit And moreouer if it be vpon debts appearing by specialties or Bills Obligatorie it may fall out that the said debts are transferred or set ouer vnto other Merchants according to the Custome heretofore mentioned whereby the propertie is altered I remember a case of mine owne that happened aboue twentie yeares since which concurreth with the matter in hand A Merchant being indebted vnto me by a Bill Obligatorie the summe of 800 ll payable at six moneths was perswaded by a friend of his with whom I had some differences and controuersies of accounts to suffer an Attachment to be made in his hands of the said moneys by the Custome of London vpon promise made vnto him That he would giue him long dayes of payment for the said moneys whereupon my Debtor appeareth to the said Attachment and did acknowledge the said debt of 800 ll relying vpon the long dayes of paiment and he that made the Attachment did proceed in the Law and had judgement thereupon making no doubt to obtaine execution accordingly Being aduised by learned councell in London Attachments to be remoued after judgements wee suffered him so farre to proceed and then we did speake in Arrest of execution and brought a Writ of Certiorare out of the Kings Bench vnder the hand of the Lord Chiefe Iustice putting in speciall baile in London to satisfie the judgement The record was remoued to the said Court of Kings Bench and there wee did put in other baile and vpon that brought a Supersedias into London and discharged our especiall baile and by the Law the said Attachment and all proceedings were made void and this Merchant was taken Pro confesso and ordered to bring the money instantly into the Court whereas he had yet six moneths for the payment the interest whereof was 40 ll whereby the Prouerbe tooke place Fallere fallentem non est fraus Here the Law did preuaile against Custome but in another like matter of attachment Custome hath preuailed against the Law One being indebted vnto another the summe of one hundreth pounds payable at a certaine time it came to passe that the Creditor went ouer beyond the Seas before the money was due the cautelous Debtor vpon vntrue surmise to defraud the Creditor made attachment of this money in his owne hands by the Custome of London and put in sureties to bee answerable for it for one yeare and a day according to the manner and order of the Court in which time the said Creditor was to disreason the said pretended debt but the Creditor being beyond the Seas and ignorant of these proceedings came ouer after the expiration of the yeare and a day and the Debtor had judgement vpon the said attachment and execution awarded vnto him in his owne hands The Creditor being now come ouer demanded his money the other denied to owe him any in briefe the Bill was put in suit at the Common Law the Debtor did plead the said judgement and recouerie in London and by that practise and fraudulent meanes defeated his Creditor and being done by Law it is taken to be no cousenage to be punished by the Starre-chamber or other Courts onely the partie is A.K. Touching Citizens or Merchants arrests beyond the Seas there is a Custome that no Officer may arrest after Sun set No arrest to be alter Sun set such therefore as goe abroad but at those times are said to Fly with the Owle by a common Prouerbe and it is hoped by the said Custome that the Debtor may by hauing accesse at some time vnto his Creditor compound with him and preserue the good opinion and credit wherein hee liueth and thereby not onely haue meanes to recouer himselfe but also be
for in the execution consisteth the life of all lawes and the perfecting of mens actions which aime at some certaine end For it hath beene well obserued by some that the actions of a wise man and a foole differ in this Differences betweene the actions of a wise man and a foole That the wise haue a regard to the end in what they vndertake and the foole without consideration permitteth the end to manifest in selfe whereof ignorant men iudge according to the euent although the enterprise were neuer so aduisedly taken in hand and as if the successe did not depend vpon the diuine power to be guided by his prouidence The determination of all causes and controuersies especially of Merchants affaires is done and executed as followeth 1 Concerning Sea-faring causes which are determined according to the sea-lawes alreadie written and in the premisses abridged Foure meaneâ— to end controuersies wee shall in this chapter briefely declare the manner of it 2 The second meane to end controuersies is by Arbitrators chosen and elected by both parties to end their differences with breuitie and expedition to auoid suits in law which vnto Merchants are inconuenient 3 The third meane is the authoritie of Prior and Consulls of Merchants for the Merchants Courts according to the priuiledges which princes haue granted vnto them for the aduancement of their trafficke and maintenance of their Customes whereof most Iudges are either ignorant or contented to determine matters accordingly 4 The fourth and last meane to determine questions and differences is by the ciuile or imperiall law or the common law of the kingdome or jurisdiction of the seuerall dominions of princes according to the fundamentall lawes of them wherein we are especially to obserue That the Law-Merchant is predominant and ouerruling for all nation do frame and direct their iudgement thereafter giuing place to the antiquitie of Merchants Customes which maketh properly their law now by me methodically described in this booke which alloweth to euerie man and nation his proper right and due and hureth no man Three precepts of all Lawes according to the three generall precepts of all lawes set downe by Caius and after him by Tribonianus namely Honeste viuere Alterum non laedere Ius suum cuique tribuere whereof the second trieth and ruleth the two other whereof more hereafter Touching the first meane to determine Sea-faring causes it shall not be needfull to speake much of the definition of an Admirall at the seas An Admirall called by the Romanes Magnus Dux Classis and Drungarius magnus or Admiratus from Amiras a word vsed by the Spaniard to See or Adelantado as going before the rest of ships also by the Italians L'amiraglio or Admiral in French because his calling is known to all But let vs obserue that for the readier obedience to the great Admiralls of the seas it is agreed by common consent of all nations that they should haue in regard of their power ouer the liues of men a soueraigne iurisdiction onely proper to themselues The Admiralls Court. in all Sea-faring causes and debates ciuile and criminall so that no other Iudge should meddle therewith and the Iudge of the court being his deputie iudicially to decide them by the Aduocats and other Assistants for the better and iust proceeding of the said court Also the Admirals clerk is veric necessarie and herein it hath been thought conuenient that all Proctors or Attorn'eys of that court should take their oath before they be heard Aduâ—â—ates and Proctors c. that they shall do nothing maliciously but as soone as they find their action to be vnrighteous in any part of the proces they are to tell it to their Clyent and if the Clyent will insist then to shew it to the Iudge The Proctors oath also that they shall not reueale their Clyents secrets to the aduersarie and lastly that they shall not propound delay nor be peremptorie against their consciences and the like oath is to be taken of other officers at their admission The causes to be determined in the Admiraltie Court do extend verie far and many are otherwise decreed or determined especially by the Merchants Courts Causes to be determined by the Admiralty and office of Assurances whereas heretofore the Iudges of the Admiraltie did minister justice vpon all complaints contracts offences pleas exchanges assurances debts accounts charterparties couenants and all other writings concerning lading and vnlading of ships fraights hires moneys lent vpon hazard of the Sea and all other seafaring businesses done on the Sea or beyond the Sea with the acknowledging of writs and appeales from other Iudges letters of reprizall or mart to arrest and put in execution to inquire within and without liberties by the oathes of twelue men vpon all offences and trespasses and namely First touching the reuealers of the King and Countrey their secrets ouer Sea especially in time of warre Against Pirats their assisters or abettors Outreaders or Receiuers Against fortefiers of the Kings enemies and harmers of friends Against the breakers of the Admirals arrests and attachments Against goods forbidden and merchandise not Customed and yet transported Against the resisters of the Admiralls Officers in executing his precepts Against Forestallers Regraters and dearthers of corne and victualls c. Finally against transporters of Traitors Rebells manifest transgressors and fugitiues from justice or casters of ballast sand or any other thing in harbours or channells extortioners by ships and boat-wrights for taking away the boigh from the anchor cutters of cables or towes false weights and measures by sea shedders of other mens blood on sea or in any port or lamed by misdemeanour Customers and Water-bailifes taking more custome or anchorage than they ought for absenting from musterings in time of warre for all transgressions committed by sea-men ferry-men water-men fishers pilots ship-wrights prest men containing the Admiralls authoritie and to amerce them for his owne benefit the goods of pirats felons capitall offendors their receiuers assisters attainted conuicted condemned and outlawed waife and stray goods wrecke on the seas and cast goods Deodando that is to say the thing whether boat or ship c. that caused the death of a man or whereby a man did perish Beacons to giue light on the seas shares lawfull prises or goods of the enemie or Lagon Floatson and Ietson before declared with the anchorages beaconages swine sturgeon and whales cast on shoare all fish of extraordinarie greatnes called Regall of all these the Admirall hath authoritie to deale correct and punish according to their deserts and the lawes prouided for the same by statutes enacted and all other lawes and meanes before declared The Clerke of the Admirall ought to be very skilfull and honest and is to haue diuers Registers for congees safe-conducts pasports sea-briefes without which no ship in time of war is to passe The Registers of the Clerke nor yet in far voyages in time of
peace another Register for the true knowledge of captaines and masters of ships and their returne a third Register for the names of Merchants passengers and owners which the master ought to deliuer vp to haue them inrolled and all pilots names although recorded in the office called the Trinitie house ought to be set downe and knowne to the Admirals clerke also all moneys deliuered vpon hazzard or bottomarie as is heretofore declared called foenus nauticum or pecunia traiectitia Now the manner of proceeding in seafaring causes The manner of proceeding is according to the lawes aforesaid or the customes written and if the debate or cause cannot be determined thereby the last refuge is according to the opinion of skilfull and vpright men in their owne trading but all this must be done as the law saieth Velo leuato so briefely and summarily without the solemnitie of other ordinarie courts and iudgements onely looking to God and the trueth and all complaints to be ended instantly especially of ship-wrecke for it were a crueltie to vexe so miserable persons with tedious proceedings whereupon in this case the Iudges may proceede to execution vpon euerie interlocutorie and make restitution presently vpon good caution to be giuen to satisfie the appellation if any be made And herein there is a further priuiledge to them for whereas by the common rules of the law where no litiscontestation is past or as we say bill and answere depending no witnesse should be receiued nisi ad eternam rei memoriam Extraordinary priuiledge ac aduersario ad id citato yet in shipwrecke as a case to bee commiserated any of the ship-broken-men may come to the Iudge of that part where the wrecke happens and by witnesse brought with him may make proofe And as this is an extraordinarie priuiledge euen so may merchants ordinarily and masters sailing together beare witnesse each one to other of their societie within the ship if they haue neither to lose or gaine therby and especially mariners for or against the master when the voiage is ended Ordinarie priuiledge and they free of his commandement For by the consent of the doctors when trueth cannot be otherwise tried then vnable persons may be heard And to the end that trade be not interrupted by vexation of quarrelsome persons it is prouided that not onely the common caution Iudicio sisti iudicatum solui be kept on the part of the defendant but also that the plaintife or pursuer shall find caution de expensis soluendis if he faile in proofe Likewise if the partie do not appeare to defend himselfe or his ship after three citations or foure at the most called quatuor defaltae hee is taken for contemptuous the Iudge may ordaine the Marshall or Officer to put the plaintife in possession by his sentence or Primum Decretum Prouided that if the partie appeare within the yeare and pay the costs and expences he shall be admitted and heard vpon the proprietie and in like manner if any attachment be made vpon the ship or goods it shall vpon caution giuen summarily be heard and determined for this law of Admiraltie intendeth nothing but expedition for the better aduancement of Trafficke and Commerce * ⎠* CHAP. XV. Of Arbitrators and their Awards THE second meane or rather ordinarie course to end the questions and controuersies arising betweene Merchants is by way of Arbitrement when both parties do◠make choise of honest men to end their causes which is voluntarie and in their owne power and therefore called Arbitrium or free will whence the name Arbitrator is deriued and these men by some called Good men giue their judgements by awards according to Equitie and Conscience obseruing the Custome of Merchants and ought to be void of all partialitie or affection more nor lesse to the one than to the other hauing onely care that right may take place according to the truth and that the difference may bee ended with breuitie and expedition insomuch that he may not be called an Arbitrator who to please his friend maketh delayes and propagateth their differences but he is rather a disturber and an enemie to Iustice and Truth and therefore the manner to elect Arbitrators The manner to choose Arbitrators is worthy the obseruation Some are contented to name foure or sixe persons on either side in writing and referre the naming or electing of foure out of them by reciprocall proceeding when one named the first person another the second and then againe the third and the other the fourth person Others putting seuerall names in a paper are contented that a meere stranger shall vpon the backside of the paper pricke their names with a pinne or that as they are numbred the dyce shall bee cast vpon them accordingly by the number Others put their names in seuerall papers and cause them to bee mingled and drawne by way of lot by an indifferent person which course may be thought allowable as we haue noted in the Chapter of the diuiding of commodities by lots Others will doe the same by nomination of them and drawing of the longest or shortest straw or by any other extraordinarie meanes of pointing numbring or describing all tending to one end to haue indifferencie and that partialitie may be auoided by all meanes Consideration must be had also whether two three or all foure shall haue authoritie to determine the cause Awards are to be giuen vnder hands and seales if they can to bee done within a limitted time wherein their award is to be deliuered vp and whether they may name an vmpire or not all which must be declared in the Bond of Compromise vnlesse the question be onely vpon one point to be determined wherein no Bond is needfull but by way of assumpsit by deliuering a peece of coyne each to other and thereby binding themselues reciprocally vpon the penaltie of a summe of money to stand to the iudgement it is ended And the said penaltie or forfeiture by assumpsit may be recouered by Law and the Merchants Courts as well as the forfeitures vpon Bonds if the partie doe not performe the sentence or award if the award be lawfully made Fiue points to be obserued in awards to which end Arbitrators are to take notice of the fiue points following which by the Law doe make void all awards 1 That the award be giuen vp in writing within the time limited by the bonds of Compromise made betweene the parties 2 That there bee limited or appointed by the award some reciprocall act to be done by each partie to other which the Law requireth to be Quid pro qu◠albeit neuer so small 3 That they make a finall end and doe determine vpon all the points or differences produced before them by specification or otherwise if they be required so to doe and authorised thereunto 4 That they doe not award any of the parties to doe or performe any vnlawfull act or thing prohibited and
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
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-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
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
coynes which is of late yeares established to preuent the inhancing of coyne and yet it cannot be sufficient to preuent the said incertaintie of the price of commodities If the standards of the said moneys were by allay of copper altered much lesse would the aduice giuen that Merchants accounts should no more be kept in liuers and soulz but in French crownes to hinder the inhauncing of moneys which in some countries is secretly practised to bee done of meere policie when by publicke authorie it is forbidden and might be effected as within the realmes of England Scotland and Ireland and other his Maiesties dominions where the moneys are not inhaunced betweene man and man and remaine currant according to their price vntill the kings authoritie doe alter the valuation by Proclamation albeit by exchange it is not so and therefore according to my third Paradox we shall find That the imaginarie moneys in exchaunge doe ouerrule the substantiall moneys in specie The third Paradox For the Merchants valuation of moneys in exchange doth ouerrule the Kings valuation of moneys within the realme For when the King hath valued the shilling peece at twelue pence Merchants vndervalue the same in exchange at 11 ½ d and 11 d not only in the price of exchange but also receiuing beyond the seas the inhanced moneys aboue their values and not valuing of them in exchange accordingly as before hath been obserued concerning the valuation of moneys and the imaginarie coines or rather moneys wherupon exchanges are made for so many seuerall places The late Earle of Donfermelling Lord Chancellor of Scotland did propound vnto the Kings maiestie in the yeare 1610 Proposition of the Earle of Donfermelling a certaine proposition touching the inhauncing of gold his lordship being of an excellent iudgement in mint affaires That the French crowne of the Sunne which went neuer in England to vse his owne phrase all Queene Elizabeths time aboue six shillings English money went now for seuen shillings and three pence and that the English double soueraign of twentie shillings went in France for eleuen francque or twentie two shillings and that both waies there had bin no alteration in the standard Whereupon he did demand in writing what was the cause of the said difference or alteration if this proceed said he from the goodnes of the gold that it is better in finenesse and allay or in weight or from the weakenes of the siluer that it be worse than it was either in finesse allay or in weight then is the cause intrinsick and substantiall and may be easily considered and resolued if it bee good or euill to be intertained maintained and set forward or reiected and stayed from all further course if there be any other cause or reason it must of force bee extrinsicke and accidentall let the same bee searched out if it bee good to the Prince and estates weale and commoditie it should be assisted and continued if it be tried euill proceeding from the policie and craft of trades-men tending onely to priuate gaine and commoditie preiudiciall to the Prince and State to be gainestood and expelled This proportion being sent vnto mee by a great personage then in high place was made plaine by demonstration to proceed of an accidentall cause by aduancing the Valuation of gold partly in England when Crowne gold was valued from fiftie fiue shillings the ounce to three pound and partly in France when they did aduance the French Crowne in specie fiue soulz aduising therewithall that to remedie the same it was not to bee done by inhauncing of our gold still more and more but in the price of exchange betweene France and vs otherwise wee should vnderualue too much the siluer of the Realme to our exceeding losse shewing withall how easily this might bee done without alteration of the proportion obserued betweene gold and siluer for most places But the contrarie was approued and Crowne gold was more inhaunced to sixtie six shillings the ounce by two seuerall Proclamations Nouember 1611. which hath proued the losse of our Siluer in bullion or weightie coyne daily breeding greater inconueniences by the want of our moneys which by reason of the vndervaluation in exchange and not by vndervaluation in specie are continually exported none imported but diuerted by gaine for other places as hath beene declared All which commeth to passe for want of true iudgement and experience in mint affaires with the consideration of the said Essentiall parts of trafficke so often mentioned whereof I hope that in generall meetings for the publicke more regard will be had to the end it bee not recorded of vs as it hath beene of some Parlements in Fraunce that in populi republica sententiae numerantur non ponderantur and then we shall be said to vnderstand the Par by right distinction betweene the actiue and passiue Pâ—ys 3. lib. ca. 3. Aristotle saith that Action and Passion are meerely Relatiues and that they differ no more than the way from Thebes to Athens and from Athens to Thebes let vs discerne therefore the one from the other and we shall find that as the Liuer Money ministreth spirits to the Heart Commodities and the heart to the Braine Exchange so doth the Braine Exchange minister to the whole Microcosme or the whole Bodie of trafficke Let the Heart therefore by the Liuer receiue his tintured Chylus by his owne Mouth and Stomach and the Bloud full of Spirits shall fill all the Veines and supplie the want of moneys the easie course and recourse of whose Exchange shal bring all things in tune serue all mens turnes For euen as there are two courses obserued of the Sun Two courses of Exchange like the two courses of the Sunne the one annuall and the other by dailie declination rising and going vnder within the Aecliptique line euen so must we obserue in Exchange two courses the one according to par pro pari or value for value the other rising or falling from time to time as hath beene sufficiently declared whereof the said Aristotle Seneca nor Cicero nor any other Phylosopher or Orator could take notice in the infancie of trade Exchange not being then inuented neither do we find that any Temporall or Ciuile Lawyer hath entred into this important studie for the welfare of kingdomes and Common-weales by the rule of Equalitie and Equitie hitherto To conclude therfore this Paradoxicall discourse I cannot omit to doe the same with another Paradox by me obserued in the making of moneys of gold and siluer namely That a man may commixe Bullion to make a certaine standard of moneys either of gold and siluer A very strange Paradox and after the commixture made shall alter the standard and make the same better or worse without putting any allay or siluer and gold vnto it That is to say I will melt downe eleuen ounces and two pennie weight of fine siluer and eighteene pennie weight of copper both one pound Troy
circumstantibus and empannell them that is To take other persons of the standers by which is done before the Iudge at the time of the Triall When the Iurie haue deliuered vp their verdict Verdict Iudgement and Execution if nothing bee alleaged in respite of judgement then judgement is had of course and alsoe execution is awarded to bee executed as the finall end of Law Neuerthelesse there are three meanes to dissolue the said judgement and execution namely By a Writ of Attaint a Writ of Error and an Audita Quaerela which Writ is grounded vpon Equitie by Law and Conscience The Writ of Attaint is not onely tedious and thargeable Writ of Attaint but also neuer or seldome tried for the same is brought by the partie grieued against the twelue men and the partie for whom the sentence is giuen And whereas before commonly vpon the first enquest they be all Yeomen or men of meane calling now vpon this Attaint must goe twentie foure Gentlemen of greater qualitie and fortie eight must be warned to appeare then there must in the Attaint no more euidence be brought in but onely that which was brought in and alleaged before the first enquest which not appearing of record is hard to bee made a plaine matter againe Gentlemen and others are loth to discredit their neighbours yet if the matter bee so apparant that they must needs find them attainted then meanes are found to deferre the judgement and it may bee the parties shall be brought to an agreement or at the least one of them that was of the attainted Iurors will dye in the meane time and then the Attaint ceaseth yet in this case if the partie be in prison which brought the Writ of Attaint he may be bailed as is in Natura Breuium The Writ of Error is more easie Writ of Error and was heretofore vsuall to prolong suits in Law before the Statute of Ieofaile was made meaning in good French I'ay failly For euerie small Error if it were but false Latine would ouerthrow a Cause but now it runneth into another extreame for if the partie grieued speaketh in arrest of judgement and sheweth some materiall Error vpon motion made the aduerse partie may haue it amended as often as Errors are opened the Record therefore ought to be first remoued and not onely by transcript be put into another Court but the partie is to plead thereunto in nullo est erratum and then the danger of opening Errors is past if there be no trickes vsed in amending of the Records vnder hand wherein lyeth a Cerciorare to satisfie the Court where the Record is brought namely from the Common Pleas to the Kings Bench Court from the Kings Bench to the Exchequer which heretofore was done in Parlement and therefore the partie grieued and in prison of the Kings Bench cannot be baileable vpon a Writ of Error after judgement and execution as hee is vpon a judgement of the Common Pleas in the Court of Kings Bench for this Court of Kings Bench in regard of the Pleas of the Crowne challengeth some prioritie herein The Writ of Audita Quaerela The Writ of Audita Quaerela is graunted out of the Kings Bench Court if the judgement doe depend there and returnable in the said Court or else out of the Chauncerie returnable in the Kings Bench whereupon the Lord Chancellor taketh foure bailes in the vacation Time before a Master of the Chauncerie and the matter doth meerely depend vpon the baile The suggestion of the Writ in matter of Law is a later contract after judgement and execution an escape in Law if the prisoner bee by the Gaoler permitted to goe abroad without the Kings Writ or if he breake prison in which case the Gaoler is to pay the debt or vpon a payment made since the execution also a wrong recouerie by an executor whom the Prerogatiue Court doth afterwards disavow Such and the like suggestions are to be tried by another Iurie vpon euidence to be produced to proue the said allegation A strict Law This Common Law is so strict that the Prouerbe is Summum ius summa iniuria for example If a man seized of lands in Fee hath issue two sonnes the eldest sonne goeth beyond the Seas and because a common voyce is that hee is dead the yonger brother is taken for heite the father dyed the yonger brother entred as heire and alienateth the land with a warrantie and died without any heire of his bodie and after the elder brother commeth againe and claimeth the land as heire to his father in this case by the Law the eldest brother shall be barred by the warrantie of the yonger brother Againe parteners cannot sue each other by the Law Parteners cannot sue each other by the Law if two men haue a wood ioyntly and the one selleth the wood and keepeth all the money wholly to himselfe in this case his fellow shall haue no remedie against him by the Common Law for as they when they tooke the wood ioyntly put each other in trust and were contented to occupie and deale together so the Law suffereth them to order the profits thereof The Law therefore is not compleat without the Courts of Chancerie or Equitie for the imperfection and rigour of it are qualified thereby called to be Aequum Bonum which may bee considered in this case Two strangers ioyntly did deliuer in trust vnto a widow woman a round summe of money with condition not to deliuer the same out of her hands but when they both should demand the same within a while after one of them commeth vnto her and doth assure her by good indices and probabilities that the other his companion is dead and thereupon doth intreat her to deliuer him the money which shee did not suspecting any fraud so the partie went away with the money Afterwards commeth the other who was said to be dead and demandeth the money of the woman and vnderstanding that she had paied the same vnto the other was much offended therewith and caused her to be adiourned before the Iudge The woman appearing did declare the matter according to the truth shewing how the other had deceiued her and she did wholly relie vpon the integritie and justice of the Iudge Example of Law and Equitie Here an Action of the case might haue beene brought against the woman by the law and cause her to seeke the partie that had deceiued her but the Iudge tempering the rigour of the law did giue sentence That the woman should pay the money vnto the partie so as he brought his companion with him to demaund the same according to the couenant they both iointly hauing reposed a trust in her Here I call to mind the question which no Iudge could determine A couetous Doctor at the Ciuile law would not instruct a young Student vnlesse he did pay him a great summe of money whereunto the Student did condescend conditionally that he should