for Merchants credits and reputation for that Merchant which in the storms of aduersitie sheweth to be a good pilot deserueth great commendation of the care and endeuours which he vseth to preuent the ship-wrecke of his reputation and credit especially with a good conscience which will be vnto him a continuall feast although the seas be turbulent for he is armed with patience and not destitute of comfort and on the contrarie those that like cowards become carelesse of their credit or being of an euill disposition seeke to defraud their creditors and to inrich themselues by their breaking paying little or nothing they do not onely deserue a name of defamation but ought to be met withall by some seuere punishment by the Law Seuerepunishment of Bankrupts It is not long since namely in the yeare 1602 that there was a Merchant at Roan in Fraunce who together with his sonne and a Broker had confederated to buy great store of merchandises vpon their credit of purpose to breake and to inrich themselues which being knowne made them to be apprehended and the court of Edicts did proceed criminally against them as theeues to the common-wealth whereof they were also conuicted and all three of them hanged in the market place obseruing that the reprehensiue Prouerbe Dat veniam Coruos vexat censura columbas was to be remembred To punish the small theft or litle theefe and to suffer the great theefe to escape which is vnreasonable The statute against Bankrupts The Statute of Bankrupts made and prouided by our law against Merchants and Citizens only was done to a verie good intent if it were executed accordingly with due consideration of the qualitie of persons and their behauiour But some can preuent the meanes of suing forth the same and so breake the strength of it as easily as a Spiders webbe whiles plaine dealing men are laid hold of that haue an honest intention to pay euerie man according to their abilitie present or future as God shall enable them for Vltra posse non est esse But these well meaning men are oftentimes hindred to performe their honest intentions by the hard and obstinate dealing of some of their creditors to the vtter ouerthrow of them their wiues and children and the generall losse of all the rest of the creditors these men therefore are to bee ouerruled by the Lord Chaunceller who may compell them to bee conformable with the other creditors according to the Customes of Merchants in other countries and there hath beene in times past during the Raigne of Queene Elizabeth Commission for the reliefâ— of prisoners a Commission granted vnder the great Seale of England for the reliefe of distressed prisoners in the prisons of the Fleet and the Kings Bench which Commission if it were renewed for the reliefe of the one and finding out of the other would worke much charitie and contentment to the subiects Howbeit to preuent these extreames is more commendable for many Merchants and Shopkeepers doe flourish and become rich againe if their creditors be fauourable vnto them and doe pay euery man to the full Therefore are the Letters of Licenses deuised amongst Merchants Letters of License giuen to debtors which are as a Pasport for the persons and goods of the debtors giuen by the creditors by way of couenant that they shall not for and during such a time or terme of yeares trouble or molest the persons and goods of the said debtors nor cause to bee molested arrested or troubled vpon paine and forfeiture of their said debts to be pleaded in Barre against them for euer as a full paiment of the same For the better encouragement and to retaine men in their duties The Custome of Merchants concurring with the course of the Ciuile Law herein Restauration of credit doth make a restauration of credit to those that pay their debts to the full notwithstanding their losses which they haue sustained and they may haue a publication made of it by way of intimation to all men vpon the Exchange or other publike places for a perpetuall remembrance to posteritie of their honest religious and commendable endeuours and behauiours to the honour and credit of their house kindred or good descent which is more especially regarded in Spaine A gentlemans priuiledge in Spaine where a Merchant or Cittizen being decayed in his estate and hauing payed according to his abilitie yea although hee doth not pay at all shall be freed from all arrests and troubles touching his person if he make proofe that hee is a Gentleman by birth which extendeth so farre that all Merchants Strangers may haue and inioy the like priuiledge vpon Certificate made by any that is Ambassadour and agent for their countrey who commonly will doe it vpon the verification of it by the Heraulds or otherwise which causeth men not to degenerate in vertuous actions although aduerse fortune playeth her Tragedie which they ouercome with constancie and magnanimitie The said Statute against Bankerupts is made vpon verie great consideration which lieth not against a Gentleman so that to call a decayed Gentleman a Bankerupt although he haue had dealing in the world beareth no action at the Common Law vnlesse hee were a Merchant or Shopkeeper c. Commissioners for the Statute of Bankerupts The Commissioners appointed by the Lord Chanceller vnder the Great Seale to execute this Commission of the Statute of Bankerupt must be Councellers at the Law ioyned with some Citizens or Merchants which are to seize of the partie which by the said Commission is proued to be a Bankerupt all goods debts chattels and moueables into their hands and to appoint one or two of the creditors to be Treasurer of the same which is afterwards to bee distributed by the said Commissioners vnto all such as they shall find and admit to be right creditors to the partie and with his priuitie and consent vpon such specialties bookes or accounts as they shall produce and be made apparant vnto them which must bee done within foure moneths after the date of the said Commission The contents of the said Statute For if it bee after the foure moneths expired they may exclude any creditor if they see cause so that the said distribution shall be done to those only which haue beene admitted within the said time according to their seuerall principall summes due vnto them without any interest for the forbearance since the specialtie was due or any forfeiture howbeit charges in Law expended for the debt shall be by them allowed according to their discretion So likewise is it in the discretion of the Commissioners to admit any creditor to come in where the partie was suretie for another if that partie be likewise decayed For it is vsuall for interest money that two or three are bound together and the collaterall Bonds which they giue each to other to saue harmelesse are to be considered both by the said commissioners and the creditors It is
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
doth pay for it Factors therefore must bee very carefull to follow the Commissions giuen them very orderly and punctually and because Merchants are not able to prescribe euerie thing so exactly vnto their Factors as is conuenient it behooueth them to make good choice of the persons which they doe imploy for their welfare dependeth vpon Trafficke otherwise the Factor groweth rich and the Merchant poore because his gaine of Factoridge is certaine howsoeuer the successe of Merchants imployment doth prooue But hauing a good Factor which word Good implyeth all and more than an honest Factor who may bee honest and neuerthelesse simple in his proceedings and others also may be wise and not honest This Good Factor therefore may bee trusted Ample Commissions with an addition and all Commissions giuen vnto him may be ample with addition of these words Dispose doe deale therein as if it were your owne this being so found the Factor is to be excused although it should turne to losse because it is intended hee did it for the best according to his discretion which is and ought to be the truest director making a conscience to see their Masters losse if they can preuent it but being limited to the contrarie they can but grieue when their counsell and aduice doth not take place either in the selling of commodities in time foreseeing a greater losse or buying some commodities deere ouer hastily as also in keeping a commoditie without purloyning the same A Passionate Commission sometimes vpon a passionate humour as a Merchant of Amsterdam did of late yeares to his Factor in London for being a loser by some Spanish Wines by writing in these words My will is that vpon the receit of this my Letter you goe to the next Ironmonger and buy a Hammer and run into the Sellor and strike out the heads of all the Butts of Wine and let it run into the Sellors For seeing the deuill hath eaten the horse let him haue the bridle too The Factor did herein vse his discretion and kept the Wines which he afterwards sold to benefit for he remembred that losers haue leaue to speake Difference by Law betweene a Factor and a Seruant Factors doe deale most commonly for diuers men and euery man beareth the hazard of their actions but if a Seruant doe deale for others by his Masters direction and they breake the Seruant can be no loser for hee is taken to haue no other credit but his Masters which is the cause that Intimations Citations Attachments and other lawfull courses are executed against Seruants and take no place against Factors vnlesse they haue Procurations Now let vs set downe such obseruations as Factors ought to know Obseruations concerning Factors IF a Factor do sell at one time vnto one man seuerall parcells of commodities or goods belonging to diuers mens accounts to be paied iointly in one or more paiments without any distinction made by the buyer for what parcels he payeth any summe in part of payment of the said debt weekely or monethly as shop-keepers do then is the said Factor to make a proportionable distribution of the moneys so receiued vpon euerie mans account Commodities bought and sold. according to the summe that euerie mans parcell did amount vnto vntill all be paied and if any losse doth happen or that all be not paied the said losse is to be distributed vpon euerie mans account accordingly If a Factor do sell afterwards more goods to the said man or any other who is alreadie indebted for other commodities formerly bought as aforesaid bee it for his owne account or other mens accounts and in the Interim receiue some more monyes in part of payment and account between them then is the said Factor to distribute the said monyes as before vntil the said old and precedent debt be first payed vnlesse there were cause of controuersie for them or that the payment were indorsed vpon the Bill made for the later goods sold vnto that man for that Bill may bee transferred or set ouer vnto another man and so is not hee the receiuer of that money but the other man If a Factor doe sell goods to another man payable at time for his owne account and rcieveth the money for the same at the time of payment and in the meane time letteth other mens monyes remaine in that mans hands vnpayed for goods by him formerly sold this Factor is to be answerable for that money vnto those other men although hee should neuer recover one penny of it For hee cannot without fraud beare with the non-payment of other mens monies after they be due and procure the payment of his owne money to another mans losse and preiudice In like case if a Factor doe sell vnto a man certaine goods of another mans account either by it selfe or amongst other parcells and this Factor giueth not aduice to the owner or proprietarie of the sale of the said goods but afterwards hauing had more dealings with that man in selling of goods and receiuing of monyes this man becommeth insoluent The Factor is to make good that debt for the said goods so sold because hee gaue no aduice to the owner of the sale of the said goods at conuenient time euen as if he had sold those goods vnto a man contrarie to the Commission giuen vnto him for the Salarie of Factoridge bindeth him thereunto If a Factor by order or Commission of a Merchant doe buy any Commodities aboue the price limited vnto him by the said Merchant or that they bee not of that sort goodnesse or kind as he is willed to doe This Factor is to keepe the same for his owne account and the Merchant may disclaime the buying of them The like hee may doe if the Factor hauing bought a commoditie according to his Commission doe ship the same for another place than he hath Commission to doe If a Factor doe sell a commoditie vnder the price limited vnto him he is to make good the losse or difference of the price vnlesse he can giue a sufficient reason of his doing so wherein hee is to consider the disposition of the Merchant for whom hee dealeth as is before noted If a Factor buy commodities according to his Commission and afterwards the price of them riseth and thereupon fraudulently hee ladeth them for another place contrarie to his Commission to take the benefit thereof in this case the Merchant shall recouer damages against the Factor by the Custome of Merchants vpon proofe made thereof If a Factor by the aduice of a Merchant doe buy a commoditie for that Merchants account with the said Merchants mony or by his credit and the Factor giueth no aduice of the buying of it to the said Merchant but doth sell the same againe for his owne benefit and gaine the Merchant shall recouer this benefit of the said Factor by the Office of Prior and Consulls according to the Custome of Merchants and shall be moreouer amerced for
of Antuerp the Factor in this case Exchange and Rechange doth accept from time to time many Billes of Exchanges and payed them accordingly and taketh vp the mony by the direction of E.F. of Amsterdam for Spaine and other places and so continueth the same for a long time by way of rechange from one place to another vpon the said credit of A.B. of London At last this Factor C.D. becommeth suspitious because of this long continuance of mony by exchange and rechange and writeth vnto the said A.B. of London to know whether he is contented to continue his former credit by him giuen to E. F. of Amsterdam A. B. continueth the same but with a limitation to a certaine summe Limitation of Letters of Credit not knowing what summe of money the said C.D. was engaged for the said E.F. of Amsterdam for C.D. gaue him no notice of it at that time hereupon it falleth out that E.F. of Amsterdam becōmeth insoluent and being much indebted vnto C.D. the Factor of Antuerpe this Factor requireth his satisfaction at the hands of A.B. of London according to the former Letter of Credit A.B. doth answere That he had restrained and limited the said Credit to a certaine summe which indeed did cut off all former matters seeing C.D. gaue him no notice of the moneys owing before and A.B. was onely to answere for the money which was taken vp by the second Letter of Credit according to the summe limited otherwise A. B. had beene cleered of all But if C.D. did continue those monyes by exchange and rechange vpon the credit of A. B and the Factor with whom hee had correspondence doth become insoluent and thereby C.D. the Factor is damnified and payeth the monyes running by exchange or is bound to pay the same This Factor is to be saued harmelesse by A. B. because hee tooke vp or caused to be taken vp The Efficient Cause alwaies to be regarded the said monyes originally So that his Credit was the Efficient Cause of it and the Factor is to bee regarded herein in all reason If a Factor doe accept Billes of Exchanges of a Merchant with order to Rechange the same againe vpon him or to take it vp by exchange for another place or places where he the said Factor shall find it to be for the most benefit of the Merchant if this Factor take vp the same according to his best skill and knowledge although it be found contrarie to the Merchants intention the Factor is not to be charged and the Merchant is to saue him harmelesse for the principall with exchange rechange and all charges of factoridge If a Factor do make ouer money for another mans account by exchange vnto another man or Merchant before he haue notice that this Merchant is broken and the Bills of Exchange are not due this Factor hath authoritie to countermaund the payment of this money although the partie vpon whom the Bill of Exchange is directed had accepted the same And if the said partie should pay the same before it was due he is to repaie the same againe to the said Factor as hauing paied it in his owne wrong contrarie to the custome of Merchants in exchanges If a Factor do fraight a ship for some voyage to be made Fraighting of ships going and comming for a Merchants account and by his Commission or order wherof a charter partie of fraightment is made by Indenture between him and the Master of the ship this Factor is liable for the performance thereof and to pay the fraight and all things accordingly But if the ship be only fraighted outwards and the Factor ladeth the same with some goods then these goods are lyable for the fraight and the Master can demaund nothing of the Factor by the charterpartie but must looke to be paied by the partie that receiueth the goods according to the Bill of lading whereby it is conditioned Bills of lading that the fraight shall be paied vpon the receit of the said goods And so is it also if a ship be fraighted to go to diuers parts as it were bound from one place to another and to be free in the last place of his discharge for the Master must still haue an eye to be secured by goods vnlesse there were an expresse Condition made in the charterpartie to the contrarie or that the ship were fraighted by the Great for a certaine summe of money to be paied by an agreement If a Factor do fraight a ship for another man or for his owne account and when it commeth to the place appointed to vnlade there are no goods to relade the same or there wanteth money for the lading thereof if the Master doe not stay out all his daies of demourer agreed vpon by the charterpartie of fraightment Protest for not lading and make a protest against the partie that he was consigned vnto to giue him his lading within that time but commeth away before that time be expired and although he maketh a protest for that he is not laden yet the Factor is to pay him no fraight at all vnlesse for the fraight outwards it were conditioned by the charterpartie But if the Master do stay out his time then the Factor is to answere the fraight although the Master had laden his ship with Salt for his owne account for if the said ship had bin laden only with Salt by the Merchant which it may be would not pay halfe the fraight yet the Factor or Merchant may at their pleasure abandon the same to the Master for his fraight Goods to be abandoned for the fraight and the Master can demaund no more of the Factor by the charterpartie But if the Master do take in Salt and ladeth his ship by his owne meanes before the daies of demourer are expired and that by some condition made with the Factor he may claime fraight then the Factor is to haue the benefit of the Salt in defalcation of the said fraight If a Factor do fraight a ship for a Merchant and afterwards the said ship is taken to serue the king for some few daies within the time agreed vpon for the lading and hereupon the Merchant disclaimeth the fraighting of the said ship albeit the Factor did proceede to lade the same In this case the Factor is not to beare any losse but what damage shall be adiudged to the Master the Merchant is to saue the Factor harmelesse of it If a Factor do hire a ship by the moneth for another Merchant or for his owne account and ladeth the same being readie to depart afterwards the king maketh a generall Embargo or restraint vpon all ships for a time the Master cannot demaund any fraight of the Factor for and during the said time of arrest And if the ship be vnladen againe and employed in the kings seruice the Factor is free of all agreements or couenants with the Master Money giuen for fraighting If a Factor do receiue
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
night and vpon speciall occasions being absent hee may leaue his Mate and other that may supply his place That they doe not too much meddle with merchandise or trade whereby they shall bee hindered in the due care of the charge of the ship The Master is duely to pay the Mariners wages without any abatement vnlesse it be for monyes lent them before or cause to pay any thing to the Owners The wages due vnto Mariners for places neere at hand are to be payed but by two payments but for remote and long voyages in three payments one at the departure another vpon the vnlading of the goods and the third vpon the ending of the voyage by equall portions in third If a Masters vpon some reasonable occasion wil discharge his Pilot either vpon the vnlading or relading he is to pay him full wages If Mariners be vnruly and giue occasion to hinder the voyage any way by their misbehauiour to be prooued by two other Mariners the Master may set them on land or cause them to be punished according to their demerite If Mariners will not testifie of their fellowes misbehauiours the Master vpon his oath shall be beleeued and the Mariner to be punished accordingly If a Master doe conceale the offences of Mariners hee shall forfeit and pay fiftie Dollers halfe to the Magistrate and halfe to the poore If a Mariner should kill another the Master is to keepe him in Yrons vntill hee bring him vnto the first judicature to bee iudged c. If a Pirat or Theefe shall come aboord and the Mariners are willing to defend the same and yet the Master will not fight this Master shall neuer bee put in trust any more nor haue credit as an honest man nor bee suffered to dwell in any of the Haunce Townes If a Master be put in trust to bring ouer Pearles Precious Stones or Money which are wares of no volume to pay fraight but a consideration the Master is to haue the fourth part of it and the other three parts are to be the Owners If a Master being part Owner wil sell his part or cause his Owners to pay deare for it the said part is to bee valued by indifferent persons and the Owners or some of them are to pay accordingly If a Master without cause will saile in another Hauen than hee is fraighted and losse doe happen hee shall answere the same of his owne meanes If a Master shall sell the ship and the Merchants goods and runne away hee shall not remaine in any of the Haunce Townes and shall bee pursued to answere for the same to the vttermost by all meanes If by contrary wind and weather being entred into another Harbour the Merchant doe sell his goods the Master is to haue his full fraight or to goe the voyage If a Master find himselfe in places where neither himselfe nor his Pilot is acquaited and may haue Pilots but will not vse them hee is to pay one marke of Gold for his punishment If a Master haue his lading in Corne which becommeth hot hee is to coole the same in conuenient manner if wind and weather doe not hinder him and the Mariners are to haue two shillings lups for euery Last for doing of it Of the hiring of Mariners No Master shall henceforth take any Mariners to hire without they haue a pasport of their last seruice vpon paine of two Dollers which pasports euery Master is to giue and shall bee printed with Blankes for the names None shall hire another Mariner by intisements of words or by giuing greater wages but take them of course vpon paine of tenne Dollers c. And if the Mariner take his owne leaue the Master may claime halfe the wages which another shall giue him The Mariners shall keepe their promise of fidelitie to the Master and be of good behauiour and quietly liue together vpon paine as followeth If any one doe put himselfe forth to bee a Pilot Boteswaine or any other officer and shall be found insufficient by two credible honest men or be prooued by his company they shall not onely lose their wages but also be punished according to the fact If a Mariner be entertained and at the Masters charges and before the voyage the Master take dislike of him hee may discharge him giuing one third of his wages but it shall bee of the Masters purse and not for the Owners to beare any part thereof When the Master hath entertained the Mariners at the ship expences the Mariners are to make their lodging on boord and to content themselues with it When the ship is come to some Port or arriued at the place the said Mariners are not without the Masters leaue to goe on shoare vpon paine to be imprisoned and further to bee punished as cause shall require The Mariners shall haue no guests on boord without the Masters consent No Mariner shall haue his wife on boord in the night vpon paine of a Doller if he doe offend No Mariner is to discharge any Ordnance or shoot without the Masters commandement vpon paine to pay double for the powder and shot All Mariners shall both at Sea and in the Harbour keep true watch night and day according to the Masters appointment vpon paine of halfe a Doller to bee abated of his hire and by default to bee punished c. Whosoeuer be found to sleepe vpon the watch shall forfeit eight shillings lups and he that findeth him sleeping and conceales it shall pay the like No Boteswaine shall loose a Cable without the Masters or Pilots commandement When a ship is detained by wind and weather in any strange place no Mariner shall depart or goe on shoare without the Masters leaue vpon paine to lose halfe wages the halfe of it to the Master and halfe to the poore Neither shall the Mariners goe on shoare when the ship is at Anchor without the masters leaue vpon paine of halfe a Doller If any mariner go on land without leaue and become wounded the master is not to looke to see him healed If a Boteswaine being absent be the cause of some great harme or losse he shall answere for it and if he haue no means he shall be then imprisoned one whole yeare with bread and water and if by his default the ship perish or some bodie be slaine he shall answere for it with his life or be punished according to his offence When the master with some of his mariners goeth on land the mariners are to attend in the boat for him or to follow his order and if any remaine all night on shoare he shall lose his portage and be punished When a master hath hired his companie for a certaine place and he hath afterwards aduice of his Owners or Partners that more profit is to bee made in another place the mariners are to be content therewith and to take content for their wages wherein if they cannot well agree then the most antient are to conclude or other
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
according to the said customes if he be a substantiall man of credit and reputation for although the said C. D. was the first deliuerer of the money vnto A. B. by the thousand ducats for Venice and might alleage that hee receiued no money of him but a Bill of Exchange for Venice whereof hee had no aduice whether it were accepted or not yet such is the precise and commendable Custome vsed in Exchanges that hee may not stand vpon any euasions or allegations which might interrupt the said course without manifest discredit vnto him vnlesse there were cause of doubt that the Bills of Exchanges of A. B. should not bee accomplished at Venice neither may A. B. without discredit countermand the payment of the thousand Ducats at Venice vnlesse there were iust cause to call the credit of C. D. in question For the manner of these Exchanges are vsuall in all the places of great Exchanges as Lyons Bizanson Madrill and Venice where the most standing Bankes are and where they doe get money ingeniously by the calculation vpon their payments at the Faires or Markets by intermissiue times either twice or thrice within the yeare in regard whereof and to auoid this obseruation in that strictnesse they haue vsed to say in their Bills of Exchanges Per la Valuta Cambiata for the value exchanged with such a one The value of money exchanged and not for the value receiued as aforesaid because they make their paiments as it were all at one time which is otherwise in those places where no Bankes are kept or may be also in some of these places if the money be payable without the Banke as we haue noted before Many Merchants trafficking onely in Exchanges become good obseruers and as ingenious as the Bankers themselues according to the Adage Fabricando fabri fimus whereby they know the variation of their Compasse and the points to direct their course by obseruing the Accidentall causes of great payments of moneys to be made in some places and of imployment to be made vpon commodities in some other places or the scarcitie of money for some places and the plentie for other places or the generalitie of both calling it as the Spaniards say La placa eâ—â—a larga lo estrecha The exchange or place is streight or plentious so that those Merchants running with the streame can make their Exchanges beneficiall vnto themselues and that without Stocke or Capitall of their owne but meerely by taking vp money for one place and deliuering the same for another place at an vndervalue in the price of Exchange sending many times the moneys in specie which haue beene taken vp by Exchange when the same doth yeeld more than the price at which they tooke vp the same as in our precedent Treatise hath beene declared more amplie This orderly course of payment or satisfaction to be made for Bills of Exchanges doth admit no rescounter or stoppage but voluntarie Rescounter in Exchange is voluntarie that is to say If I owe you one hundreth pounds by a Bill of Exchange by mee accepted and within three or foure dayes you shall owe mee the like hundreth pounds for another Bill of Exchange by you accepted I cannot rescounter these payments to answere each other vnlesse you condescend thereunto although the money were due to be payed but euerie Bill of Exchange is to bee answered and payed in his proper nature For let vs suppose that some countermand be made by him that caused this money to be made ouer vnto you before you were to pay the said Bill which for some causes you are to conceale for a time you are for all that to be payed of your hundreth pounds or the diligences which are requisite to bee done herein are both wayes to be obserued accordingly But when it is done by voluntarie consent and agreement then is it questionlesse for Voluntas est mensura actionum Will doth regulate actions c. The Will doth regulate the Action and if any Factor doe the same for another mans account without commission he shall be answerable for it as before is declared in the Title of Factors and Seruants and the Commissions giuen vnto them For the better explanation of Exchanges for moneys taken vp for one place and deliuered againe for another place let vs obserue this example Tenne thousand Ducats were taken vp at Antuerp for Venice at Vsance of two moneths at seuerall prices of 113 ½ pence 114 pence and 115 ½ pence for the Ducat being the Medium or one with another at 115 pence made Flemish money R. 4791 13 4 These R. 4791 13 4 Example of Exchanges and Rechanges of moneys were made ouer for London at Vsance being one moneth at diuers prices whereof the Medium was 32 shillings foure pence and made 2875 ll 0 ss 0 d These R. 2875 sterling being receiued and Factoridge Brokeridge and port of letters deducted remained 2860 ll which were made ouer for Antuerp againe at seuerall prices and the Medium was 34 ss 2 ½ d. 4894 ll 15 10 The tenne thousand Ducats at Venice were taken vp for Frankford at 130 Florins of 65 Creutzers for 100 Ducats wherunto Factoridge and Brokeridge added it amounted to 13130 Dollers or Florins of sixtie fiue Creutzers and with Brokeridge and Factoridge at Frankford was Florins 13260 Flo. 0 ss 0 d The 4894 15 10 Flemish receiued in Antuerp were made ouer for Madrill in Spaine at diuers prices whereof the Medium was 106 pence for a Ducat of 375 Maluedeis to bee payed in Banke at foure moneths time with fiue vpon the thousand and made Ducats 11132 Duc. 12 ss 6 d These 11132 Ducats twelue shillings six pence of a Ducat were made ouer from Madrill to Lixborne in Portugall and deducting Factoridge and Brokeridge there remained 11010 Ducats of 440 Reas for euerie Ducat of 375 Maluedeis or 11 Ryalls is 4844 U 620 Vlas and Ducats 12111 Duc. 11 ss 0 d These 12111 Ducats or Crusats of Lixborne made ouer to Antuerp Factoridge and Brokeridge deducted remained 11990 Ducats at 98 pence Flemish euerie Ducat or Crusat was Flemish R. 4895 18 4 The 13260 Florins of Frankford taken vp for Antuerp at 81 pence R. 4530 10 0  R. 365 8 4 These moneys payed Brokeridge and Factoridge for Venice and deliuered for London and for Madrill 38 2 4 which must be deducted R. 38 2 4 So there was aduanced by industrie with other mens moneys R. 327 6 0 CHAP. IX Of the Feats of Bankers performed by Exchanges WEE haue in the First Part of this Booke made a description of Bankes and Bankers in regard of the payments and Exchanges made in Bankes for commodities bought and sold and hauing in the precedent Chapters declared the foure manner of Exchanges and the merchandizing Exchange by denomination of it to be the canker of Englands Common-wealth let vs now intreat of the Feats of Bankers Some men of iudgement haue found my writing
plentie the price thereof deare or by scarsitie better cheape as hath beene noted but Exchange hath a contrarie meane of working for plentie of money maketh a low Exchange and scarsitie of money maketh a high Exchange and the price to rise which is of great consideration because it ouerruleth money and commodities which neuer entred in the politicke studies of Aristotle Seneca or Cicero who were but in the infancie of Trade And Ciuilians can tell vs that Commercium is quasi Commutatio Mercium but went no further in this iust and princely studie of State affaires to augment by all lawfull meanes of Ius gentium the wealth of their Kingdomes and Territories as also to preuent the diminution thereof by the carrying away of their moneys and treasure True it is that the Statute Lawes of England haue had a care heereof but the remedies haue beene hitherto defectiue by mistaking the Efficient cause thereof which remedies may be distinguished three manner of wayes 1 First the Statute of imployment for Merchant strangers Commodities made for three especiall causes 1 For the aduancing of the price and sale of our natiue commodities 2 To preuent the ouerballancing of forraine commodities 3 To preserue the moneyes within the Realme 14. R. 2. 2 The lodging of Merchants strangers with free hoasts who had an inspection in their negotiations for commodities and moneys 3 The keeping of Staples for Woolls Woolfels and other commodities beyond the Seas with their Correctors and Brokers to register Merchant strangers dealings 4 To cause Denizens to pay strangers Customes inwards and outwards 5 The sundry treaties and conferences with the Commissioners of other Princes about Merchandise Moneys and Exchanges 6 The seuere Proclamations for the obseruation of the Statutes made for and concerning the same and the Articles of Entercourse 7 The prohibition to export commodities but at great Ports 8 The prohibition for strangers to sell wares by retaile 9 The prohibition for English Merchants to ship goods in strange Bottomes 10 The transportation of money made Felonie by Act of Parlement Moneys 11 The attendance of Searchers Waiters and other Officers 12 The strict information in the Exchequer and other Courts 13 The swearing of the Masters of Ships for exportation of moneyes 14 The reformation of the ouerheauinesse of our pound weight Troy in the Tower 15 The ouerrichnesse of our sterling standard of moneys 16 The alteration of the proportion betweene Gold and Siluer 17 The making of more prices out of the pound Troy by the Sheyre 18 The inhauncing of Siluer and Gold Coynes in price 19 The imbasing of moneys by Allay or Copper 20 The vse of many standards of money and reduced to two againe 21 The increasing of coynage money to hinder the exportation 22 The prohibition to cull out heauy peeces to melt or transport 23 The banishing of light Spanish money and Gold to bee molten 24 The giuing more for Bullion in the Mint 25 The prohibition for Goldsmiths to buy Gold or Bullion 26 The making of the principall forraine Coyne currant in England 27 The binding of Merchants to bring in Bullion 28 The prohibition to pay Gold vnto Merchant strangers 29 The prohibition to take gaines vpon Coynes 30 The Bullion in the Mint to be deliuered by weight to restore by tale 31 The inhauncing of Gold and vndervaluing of Siluer 32 The punishment of transporters in the Starre-chamber by Fines 33 Exchange The prohibition by Act of Parlement to make Exchanges for moneys for forraine parts without the Kings especiall license 34 Money deliuered to Sir Thomas Gresham Knight out of the Exchequer to rule the course of Exchanges by Bills 35 The Office of the Kings Royall Exchanger neuer put in practise since the merchandising Exchange beganne erected by King Edward the first in the eleuenth yeare of his raigne by an Act made at Acton Burnell as aforesaid Heere wee are to obserue the Statute of employment to bee defectiue when Merchants both English and strangers haue an abilitie giuen them by Exchange to take vp money here and to deliuer a Bill of Exchange for it payable beyond the Seas and can send ouer the money in specie and bee a great gainer thereby insomuch that if I receiue here one hundreth peeces of twentie shillings I can send nintie peeces to pay my Bill of Exchange and put ten peeces in my pocket for an ouerplus and gaine The like may bee done by making ouer money from beyond the seas to be payed here by Exchange which being receiued I can transport with 15 vpon the hundreth gaines in two moneths and lesse and aduance a hundreth vpon the hundreth in one yeare which exceedeth all the benefit to be made by commodities wherewith I need not to intermeddle neither can the said statute be any helpe herein to remedie the same This gaine ariseth by the vnderualuation of our moneys in regard of the inhancing and ouerualuation of forreine coynes so that the cause is extrinsique and comprised vnder the said Exchange of money and not intrinsique in the weight and finenes of moneys which are considered in the course of true Exchange betweene vs and forreine nations and thereupon it followeth that neither difference of weight finenesse of standard proportion betweene gold and siluer or their proper valuation of moneys can be any true cause of the exportation of our moneys so long as a due course is held in the Exchange which is grounded thereupon Hence ariseth the facilitie of the remedie by the refoâ—mation of the Exchange in causing our moneys to be truely answered by Exchange according to the verie value or aboue the same which cutteth off the said gaine had by the exportation of moneys and causeth also in effect that the forreine coynes beyond the seas are not taken in payment aboue their values although they be receiued at a higher rate because the commodities of the realme are sold according to the price of Exchange which counteruaileth the same according to their inhauncing of coynes or imbasing of the same by allay or copper All men of common vnderstanding when they do heare of the raising of moneys beyond the seas are readie to say We must do the like For they conceaue the saying of Cato Tu quoque fac simile sic Ars deluditur Arte to be a proper application hereunto But they do not enter into consideration what alterations it would bring to the State and that the matter might run ad infinitum as shall be declared But let vs suppose that this will be a sufficient remedie to inhance or moneys as they do theirs to imbase our coynes as they do theirs and to imitate ouerualuation of gold and siluer as they do which requireth a continuall labour charges and innouation Is it not an excellent thing that all this can be done by the course of Exchange with great facilitie and that without inhauncing of our moneys at home or medling with the weight and finenesse
against the Law 5 That they doe not award any thing whereby any matter alreadie determined by decree in Chancerie or judgement at the Common Law or any sentence judicially giuen in the cause be infringed or medled withall These points ought to be obserued for the reasons following For touching the first if the award be not deliuered vp in writing vnder the Arbitrators hands and seales if the condition of the Bond doe so limit the same then haue they no authoritie to doe the same after the time which is limited vnto them by the consent of the parties For the second point reason requireth in all humane actions a reciprocall act from one man to another by deed of performance called Quid pro quo The reason of Quid pro quo although it were a mans sallarie for his paines which in some cases causeth men to award that each partie shall pay so much to the Scriuener or Notarie for writing the said award but this is no collaterall act betweene the parties neither is it any matter compromitted to the Arbitrators It is therefore better to expresse and award that each partie shall seale and deliuer either generall acquittances each to other or with some exceptions therein as the award will lead them The third point is considerable where the differences are by both parties or either of them deliuered in Articles in writing to the arbitrators for herein it is not sufficient to say That the said arbitrators shall haue power and authoritie to determine all questions differences doubts controuersies matters of accounts reckonings or any other vsuall or generall words from the beginning of the world vntill the date of the bond but they must giue their award vpon euerie particular Article and vpon all of them The fourth point That the Arbitrators doe not award any thing which is vnlawfull is to be vnderstood of all things which are euill in themselues called Malum in se and of things called euill because they are vpon some respects and considerations prohibited and therefore termed Malum prohibitum as the wearing of hats at all times transportation of corne eating of flesh in Lent and the like wherein there is a further consideration which requireth a distinction As for example an Arbitrator or many Arbitrators doe award A notable good distinction in Law that a summe of money shall be payed vnto such a man during all the time he is vnmarried is good in Law but to bind the partie by award that he shall not marrie because he should enioy the money still is vnlawfull and void by the Law The fifth point is of verie great consequence to bind the actions of men to the obedience of the Law whereunto such reuerence is due that decrees judgements and sentences of judiciall Courts of Record are alwayes of a higher nature than Arbitrators awards Neuerthelesse in many doubtful questions the Ciuilians themselues after long and curious debates doe assigne them to be determined by Arbitrators hauing skill and knowledge of the Customes of Merchants which alwaies doe intend expedition and that is the cause wherefore an vmpire chosen vpon arbitrable matters An Vmpire hath absolute authoritie hath an absolute authoritie to himselfe giuen to end the matter alone without hearing the Arbitrators if hee will for albeit this is not without some danger and that the ending of Arbitrators is to bee preferred yet breuitie and expedition of justice in Merchants affaires is so much regarded that by all meanes the same ought to be furthered Hence it proceeded that the Merchants Courts gouerned by Prior and Consulls whereof we intreat in the next Chapter haue authoritie to reforme or confirme the sentence of Arbitrators Arbitrators award subiect to the Prior and Consulls when Merchants will appeale their arbitrement before them rather than to goe to Law and with this prouiso That the appellation of the sentence of the said Arbitrators shall not be receiued by the said Prior and Consulls before the arbitrement bee performed by the partie that doth appeale conditionally that restitution shal be made if there be cause vpon the end of the processe And the said Prior and Consulls are to note that no Merchant nor other being of their jurisdiction can transport or make ouer their interest to any person priuiledged and not subiect to the said jurisdiction be it by gift sale or exchange or by any other meanes to the end thereby to auoid their authoritie vpon paine that the same transports or possessings shall bee of no effect and the losse of their right and cause And all notaries who shall receiue any such transports shall be punished by the said Prior and Consulls in a penaltie arbitrable and further shall be condemned to pay vnto the aduerse partie all his costs and charges which hee hath sustained by meanes thereof Reference of causes to Merchants And to the end this expedition may by all meanes be furthered the said Prior and Consulls may distribute and referre causes vnto the most ancient and expert Merchants in the matters in question to make a true report of the state of the cause according to the allegations and proofe of the parties without any sallarie to bee giuen to the said Merchants howbeit in Italy some reward is giuen vpon the Ricorse of Merchants These Merchants are to take the aduice of the Aduocate Councell and Atturney of the said Prior and Consulls in matters difficult the better to discerne the right of the cause to make their report more compleat for the sooner ending of it according to reason and right by the true affirmations of the Merchants and not by fained subtile and craftie writings which oftentimes do darken the truth vnder the colour of faire phrases declared in them causing protraction and delayes Difference betweene ludges of the Law and Arbitrators Marcus Tullius Cicero hath truely set downe the difference which is betweene Iudges of the Law and Arbiâ—rators inclining to the most easie and lesse chargeable course saying The one is seruile the other is noble the one is bound to the Law and the other is not the one doth consist in fact the other in justice the one is proper to the Magistrates the other is reserued to the Law the one is written in the Law the other is without the Law the one is in the power and the other is without the power of Magistrates howbeit it is not forbidden but all Iustices of Peace may compound differences and their authoritie doth inable them better thereunto And in this regard it is said That an vmpire doth represent the Lord Chancellors authoritie because that the Commissioners report of the Masters and others of the Chancerie or of Merchants is the ground worke whereupon the Lord Chancellor doth deliuer his sentence and maketh vp his decrees And the said Commissioners haue a further authoritie and power than Arbitrators Difference betweene Commissioners and Arbitrators for they may examine witnesses vpon oth vpon
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
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
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
a dog vseth to bite or gnaw vpon a bone so that he that biteth not doth not commit Vsurie for Vsurie is none other thing than a biting as I said of the verie Etimologie and proper nature of the word otherwise it cannot be called Neshech as the Hebricians say According to the definition then of biting Vsurie we are to proceed in this discourse after that we haue briefely declared the Laws and Prohibitions against Vsurie wherein wee must begin with the holie Scripture obseruing these places God saith in the 22 of Exodus Holie Scripture If thou lend Money to any of my people that is poore by thee thou shalt not be an Vsurer vnto him neither shalt thou oppresse him with Vsurie In another place Leuit. 25. If thy brother be waxen poore and fall into decay with thee receiue him as a stranger or a soiourner Deut. 23. and let him liue by thee and thou shalt take no Vsurie of him nor yet aduantage but shalt feare thy God that thy brother may liue with thee Psal. 15â— Ezech. 18. Matt. 5. Luke 6. Thou shalt not lend him thy money vpon Vsurie or lend him of thy food to haue an aduantage by it Adde vnto this the places noted in the margine and so let vs come to the holie ancient fathers Saint Hierome saieth There is no difference betwixt Vsurie Fraud and violent Robbing Ancient Fathers Saint Augustine saieth An Vsurer is he said to be who doth demand more in money or any other thing else than he hath deliuered according to which the said Saint Hierome also saieth That some do thinke Vsurie to be onely in money but let them well vnderstand that Vsurie is an ouerplus in any thing aboue that which was lent Amb. de beno mortis Saint Ambrose likewise saieth If any man take Vsurie he doth commit extortion rapin and pillage and shall not liue the life as who should say he shall die therefore To omit many other of the said ancient fathers Saint Bernard saieth That the Vsuror is a theefe in law because the Ciuile Law telleth him before hand what it is that he must rob from others as who should say such Lawes as permit Vsurors are lawfull theeueries Canon Law Hereupon the Canonists haue made Vsurors to be defamed persons and if any man make by his last Will and Testament any goods vnto them the Testament may be broken neither are they to communicate with Christians or to enter into their congregation to offer any oblation and when they are dead they should not be buried in Christian buriall and if they be the doers thereof are excommunicated Decretals Decretals and Clementines made by diuers Popes are directly against Vsurie Alexander the Pope doth straightly forbid all Vsurie not onely vnto the Clergie but also vnto the Layitie In the booke Sextus Decretalium Gregorie the tenth Bishop of Rome of that name saieth We being desirous to stop the gulfe or whirlepooles of Vsurie committed which doth deuoure soules and vtterly wasteth wealth do command vpon the threatnings of Gods curse that the constitution of the latter Concile set forth against Vsurors be without any violation at all fully wholly obserued and therupon a prohibition is made That no Corporation Colledge or Vniuersitie shall let any house or dwelling place to any stranger Vsuror Ciuile Law Baldus the Ciuilian speaketh bitterly against Vsurors in his booke of Councells saying That Vsurie is a gainefull piracie contrarie to nature vpon the loane of any thing that consisteth vpon Number Weight and Measure Bartolus saieth That all Vsurie is vtterly forbidden and offensiue to God and man So doth Panormitane and diuers others learned in the Ciuile Law Aristotle Aristotle in his Politickes sayeth That such money as bringeth forth money through Vsurie is an ougly beast that bringeth forth monsters from time to time such as are not in nature The Romanes being in their most flourishing estate made a law by their twelue Tables that no man should put forth money vpon Vsurie but after one in the hundreth called Faenus vnciarium whereas before that time rich men might take at their pleasure Afterwards it was ordained at the intreating of the Tribunes to take an ounce and a halfe and that was thirtie shillings in one hundreth pounds after that it came to foure in the hundreth called Triens and last of all to six in the hundreth called Semissis And yet all these alterations and diuersities of suffering in Vsurie notwithstanding Genitius Law one Genitius a Tribune published a law That it should not be lawfull for any man to be an Vsurer at any hand or by any maner of meanes and so by all deuises that might be it was vtterly forbidden by diuers Edicts and Proclamations which being often repressed did yet notwithstanding breake out by wonderfull strange meanes Wherefore Tiberius Caesar to remedie this euill and that no Vsurie should be vsed he caused a maruellous masse of money to be laied in banke to the summe of two millions and an halfe of Crownes being fiue hundred thousand pounds English or sterling and tooke order that euery man should haue credit for three yeares without paying any Vsurie at all Cornelius Tacitus putting in suretie for the double value of that he borrowed And Cornelius Tacitus a renowmed Writer saith The canker of Vsurie is an old venimous sore and the chiefest head and cause of rebellion and variance in Countreys and Common-weales and therefore it was altogether banished in the old time when least corruption of life appeared amongst men Lucullus so hated the excessiue dealings of the Vsurers that wheras all Asia was ouerwhelmed with Vsurie he cleered the same vtterly from all Vsurers And so did Cato in Cicilia Anthoninus Pius Alexander Seuerus Claudius Vespasian Leo Emperours and diuers other Emperors did restraine the couetousnesse of Vsurers from time to time And the Emperor Charles the fifth of late yeares at an assembly at Augusta in Germanie did conclude with the assent of the whole Empire That no manner of contract that had any fellowship with Vsurie should be allowed but rather that all Vsurie should be auoided for euer and be neuer more vsed and if any were found to haue made any such contract the same man to forfeit to the Magistrate or ordinarie Iudge the fourth part of his principall summe Plato the Philosopher warneth among other things Philosophers and Orators in his fifth Booke of Lawes That no bodie whatsoeuer hee bee that will beare the face of an honest man doe let out his money for Vsurie or gaine The like saith Cicero and many other learned Philosophers and Orators as we haue noted of Aristotle So did diuers Law-makers banish Vsurie Law-giuers and vtterly suppresse the same as Licurgus in Sparta amongst the Lacedemonians Amasis in Egypt Solon in Athens Sergius Galba in Africa being gouernour vnder the Emperour Claudius and diuers others So that Vsurie
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
eightie aspers euerie asper is ten Macharines At Alexandria in Aegypt they account by ducats There is ducat de Pargo making three ducats of Venice Ducat de Pargo also Italian ducats of thirtie and fiue maids and the Venice ducat is better and maketh fortie maids Marke Scots At Edenborough in Scotland Exchanges are made vpon the marke peece of siluer which is valued in England at 13 ½ pennie being otherwise 13⅓ pennie or thirteene shillings foure pence Scots So one marke and a halfe Scots is twentie shillings Scots and twentie pence sterling is one pound Scottish Pound Scots which is twelue to one The 18 peeces of twentie shillings is by the said Valuation twentie shillings three pence and the Taker vp of the money at London payeth for twelue pence the said marke of 13 ⅓ pence at two or three moneths Time in Scotland as they can agree Pound Irish. At Dublin in Ireland the fifteene shillings sterling is one pound Irish of twentie shillings whereupon Exchanges are made with allowance of sixe pence or eight pence vpon euerie pound payable at London and for want of a Mint no Bullion is imported thither and Exchanges are diuerted into other parts At London all Exchanges are made vpon the pound sterling of twentie shillings and twelue pence to the shilling for Germanie Pound sterling the Low-countreys and other places of trafficke and for France vpon the French Crowne for Italy and Spaine and other places vpon the Ducat or for the Doller and Florin in some places according to the Custome of the place Whereof more particularly is to be obserued in the course of Exchanges CHAP. IIII. Of the Times of Payment of Moneys by Exchange and the Termes of Art vsed therein THE discrepance of Time for the payment of moneys by Exchange hath a regard to the distance of the place or places where the money is to bee payed wherein we may consider three kindes of diuersities called by the Termes of Art in matter of Exchange at Sight Vsance and double Vsance or treble The taking and deliuering money at Sight At Sight bindeth the Taker vp of the moneys to giue his Bill of Exchange directed vpon his friend Factor or Seruant in any place beyond the Seas to pay vpon Sight of it or within three foure or more dayes so much money as hath been taken vp by him after such a rate the Pound Doller Ducat or Crown as is agreed vpon betweene them in forraine coyne either according to the Valuation of monies or currant money for merchandise which is more ordinarie because Merchants will admit sometimes to receiue some coynes at a higher rate than they are valued vpon occasion that some Species are required for transportation or some other vse to make paiments Policie of Estates which tolleration is by authoritie many times suffered to draw moneys vnto their places of jurisdiction Heerein is to be noted That if the Bill be made payable at so many dayes Sight that the number of dayes must bee expressed in the Bill or Bills for commonly there are made three Bills of one Tenor for euerie summe of money taken vp because if one Bill bee lost the other may serue in place The second Time of payment called Vsance At Vsance which is either the Time of one moneth two or three moneths after the date of the Bill of Exchange as heereafter is declared according to the Custome of the places where these Exchanges doe runne according to which Time the partie vpon whom the Bill of Exchange is directed is to pay the same vnlesse there be good cause to the contrarie as shall appeare hereafter Double Vsance and treble Vsance The third Time of paiment called double Vsance is either two or more moneths or alwayes double the Time of the Vsance respecting by Custome the course thereof and many times Exchanges are made vpon the halfe Vsance which is fifteene dayes But considering the wind and other hinderances it is better to limit the dayes after Sight in the Bill of Exchange and to send the same by Sea and Land with a Letter of Aduice which the Taker of money commonly doth deliuer with the Bill of Exchange whereunto the Bill maketh also relation and treble Vsance is accordingly Payments in Faires or Marts There is another Time for the paiment of Exchanges where great payments are made as in Faires or Marts as at Madrill and Medina del Campo by three Ferias in the yeare at Lyons by foure payments yearely and at Frankford twice euerie yeare c. The difference of the times of payment doe alter the price of Exchanges according to the Time commonly after twelue fifteene or twentie in the hundreth by the yeare So betweene the pound sterling Exchanged for the Low-countries at Sight and Vsance is betweene foure and fiue pence and double Vsance and Vsance sixe or seuen pence which ordinarily was accounted to bee but foure pence after 10 pro 100. But for the Faires and Marts it is verie vncertaine because the payments are all at one Time and the neerer the Faires are at hand Consideration in Exchanges the more shall the Taker vp of the money saue by paying lesse interest because he hath not had the vse of the money from the beginning that Exchanges were made for the Faires which in questionable matters is verie considerable Vsance from London to and from Middleborough Amsterdam Antuerpe Bridges and other places in the Low-countreys is one moneths Time from the date of the Bill of Exchange and double Vsance is two moneths Vsance for Hamborough is two moneths and for Venice three moneths Vsance from Antuerp to Rome is two moneths and from Lyons to Rome one moneth Vsance from Antuerp to Venice is two moneths to bee payed in Banke Vsance at Florence is two moneths and from Florence to London three moneths Vsance from Genoa to Rome and Naples is ten dayes Sight and for Palermo and Antuerp is two moneths by ordinarie obseruation and so is Luca From Naples to Antuerp is two monethes and the like for Palermo Vsance for Roan and Paris is one moneth but commonly at three weekes Sight From Antuerp and London to Seuill is two moneths Castile payments are in three Bankes and Ferias de Villalon Medina del Campo and Medina del Rio Sicco but many times prolonged by the King of Spaine Vsance from Lixborne to London and Antuerp is two moneths which Merchants are to know because the Bills of Exchanges doe not declare the same CHAP. V. Of the Nature of Bills of Exchanges THE Nature of a Bill of Exchange is so noble and excelling all other dealings betweene Merchants that the proceedings therein are extraordinarie and singular and not subiect to any prescription by Law or otherwise but meerely subsisting of a reuerend Custome vsed and solemnized concerning the same For the better declaration whereof let vs set downe the forme of a Bill of Exchange from
of Iohn making mention of Peter and William Here are foure takers vp of money and but effectually one deliuerer of money which is Francis for albeit that Peter was the first deliuerer of the fiue hundreth pounds he became a taker againe of the said money receiuing the same of William so that gradatim Iohn is the first taker vp of the said fiue hundreth pounds Peter is the second taker vp William is the third taker vp and Nicholas is the fourth taker vp of the said fiue hundreth pounds of Francis To this Francis is the Bill of Exchange giuen payable to his friend factor or seruant in the place for which the money was taken vp But the said Bill is made by Iohn the first taker vp of the said money declaring that the value of it was receiued of Peter for William and for Nicholas vpon the account of Francis which is the last deliuerer of the money which Bill being payed all the parties in this Exchange are satisfied and paied and this is done with great facilitie 4 There is also a custome that moneys are taken by Exchange for a certaine place by men who are not generally knowne and therefore must vse the credit of another man as a third person in the Exchange If this man do subscribe his name to the third or second Bill of Exchange it is sufficient and will be duely performed accordingly 5 It is also ordinarie that a master to draw money from his seruant into his owne hands or a merchant in the like case from his factor will make a Bill of Exchange payable to some other person and say in the Bill of Exchange For the value receiued of such a one naming a friend of his as he taketh the said person to be if the seruant or factor do accept this Bill he will be made to pay it and if this person whose name hath beene vsed will deale vniustly the master or merchant shall be remedilesse vnlesse he haue some collaterall writing for the same because the Bill of Exchange must be maintained 6 Againe if a knowne seruant do take vp moneys beyond the seas vpon his master and giue his Bill of Exchange for it vpon the said master the master is liable to pay the same although he did not accept the Bill of Exchange for it is vnderstood that by his credit and not by the seruants credit the money hath beene taken vp so that vntill he make a publicke declaration denouncing his seruant to the Brokers of Exchanges and otherwise the master is to pay all by the Custome of Merchants to be kept inuiolable 7 There is also a custome that a master vnto his seruant or one friend vnto another will send Bills of Exchanges with the names in blanke from one countrie into another as from Hamborough to Embden or from Antuerpe to Amsterdam and from thence to Dansicke and at Amsterdam the names are put in to whom to be payed and of whom receiued and this dependeth vpon the credit of him that made the Bill of Exchange and this is also accomplished verie orderly 8 Againe a Merchant may take by Exchange in another mans name or in his owne name and another mans name together money to be paied in any place where Exchange is vsed and subscribe his name and that mans name or that mans name alone and this man whose name is vsed is liable and answerable to the said Exchange if it be proued that it was done or the like vsed to be done by that other partie with his consent or priuitie for to auoid inconueniences in the course of Exchanges 9 Nay this goeth yet further to be considered of in equitie and so adiudged that if a man do take vp money for any place by Exchange posito from London to Middleborough and there the money is payed and taken vp againe by Exchange for Antuerpe and there it is also paied by money taken vp for Amsterdam and at Amsterdam it is paied for the said money was taken vp there againe for Middleborough and at Middleborough it was againe returned and taken vp for London in one or more summes running in account betweene all these parties dealing therein but here at London it is not paied but goeth backe againe to Middleborough by Protest and there the taker vp of it becommeth insoluent Now if it be proued that those moneys were originally taken vp in London by the credit of that first taker which hath beene a principall cause of the continuance of it by Exchange this man of London is to be charged with it as well as the taker vp of the moneys beyond the seas Thus may we see how tender and noble a Bill of Exchange is of nature which by the proceeding thereupon will be made more apparant * ⎠* CHAP. VI. Of the Non-acceptation of Bills of Exchanges and Customes obserued concerning the same THis high nature of a Bill of Exchange requireth such precisenesse of proceedings to see the performance thereof that euerie man ought to be verie vigilant to obserue the same and therefore as soone as a Merchant receiueth a Bill of Exchange whether it be payable at Sight Vsance or double Vsance he is to present the said Bill of Exchange to the partie vpon whom it is directed to know whether he will accept the same which if he do or promise by writing vnder it the word Accepted First obseruation or with the addition of his name Accepted by me A. B. then the partie is to pay it at the time contained in the Bill but if the said partie be not resolued to accept the same then after twentie and foure houres past it is conuenient to present him the said Bill with a Notarie to make intimation of it vnto him and to know whether he will accept the same as you did before if he denie to accept it then the Notarie doth Protest against him in words that the Merchant doth intend to recouer all dammages which he or the deliuerer of the money beyond the seas or himselfe for others might or shall sustaine thereby whereunto the partie needeth not to make any replie but if he doe and withall desire the Notarie to declare the same in the Notariall Act or Protest which he maketh for the Non-acceptation then the Notarie is to put it down in writing accordingly and to deliuer the same to the Merchant to be sent beyond the seas with all expedition because the deliuerer of the money there may take notice of it and secure himselfe of the partie if there be cause and in the sending of this Protest of Intimation The opportunitie of the first Post is to be obserued to send the same by Second obseruation If the Merchant to whom the Bill is payable were absent or sicke or departed this life neuerthelesse any friend or seruant of his may cause this Protest to be made by the Notarie who doth declare the name of him at whose request he doth present the
bread and water for a time at the discretion of the Iudge But if the debtor be so poore and notwithstanding hath such a cruell aduersarie that will make dice of his bones that is say to haue his debtor die in prison and to hang vp a bale of dice for him in the Crowne Office as is done by the Officer in place or the Goaler then hath the Law beyond the seas prouided some reliefe for this poore man for the custome is in Germanie France Italie Spain and the Low Countries that no man is imprisoned for debt aboue a yere and a day in which time the creditors haue power to take seise and sell all the estate of the debtor which being done or before the woman in most places may claime her dower for her reliefe children and the rest is diuided amongst the creditors as far as it will go and so the debtor is freed from those debts for euer for by the Ciuile Law Qui vult cedere bonis liberatus est a debito if the debtor do relinquish his estate to the creditor he is free from the debts and all goods falling to him afterwards are his owne But this man is euer after disabled to come to any preferment and such a creditor as is the cause of it will be hated and accounted worse than a Iew or Pagan For the manner of Cedere bonis or to make cession of goods is verie hainous The manner of Cedere bonis and of wonderfull disgrace so that most men will rather die in miserie than to come vnto it because it happeneth not once in twentie yeares yet is it farre inferiour to the punishment of the pillorie or the striking ouer the legge vsed in Russia at the creditors instance whereby the debtor is set at libertie and the debt paid The partie commeth before the towne-house and standeth vpon a stone in the view of all the people and vnloosing his girdle he desireth them and all the world to take notice that he hath nothing left him to pay his creditors and so renounceth all what may be found to be his or what any manner of waies he might pretend and in token thereof he may not weare his girdle any more nor be imployed in any businesse as a liuing man yet afterwards by some composition to be made with the creditors he may be restored by a declaration to be made by some Officer vpon the said stone and then he is permitted to weare his girdle againe In the said countries no gentleman or man of qualitie may be imprisoned at all for debts his estate onely is liable thereunto and yet with reseruation of such necessarie things as Honestie Honour Humanitie and Christianitie doth challenge namely the souldiours Person his Armes his Apparrell Bed and Chamber conueniently and necessarily furnished which may not be taken for debt and the like reseruation is made to euerie other man of qualitie so that imprisonment of men bodies for debt according to the common practise of England is a greater burden and bondage than is to be found in any other christian or heathen countrie And for asmuch as the mischiefe and incoueniences arising to the King and Common-wealth by the imprisoning of mens bodies for debt haue beene propounded heretofore in Parlement by a printed remonstrance which like vnto a Pamphlet may be lost whereby good matters are many times put in obliuion I haue thought conuenient to make an abstract thereof in the maner as the said reasons are laid downe to be inserted in this booke in hope of some releefe vnto decayed Merchants whose estates may remaine liable to answere their creditors without imprisoning of their bodies against the Law of God the Law of man the Rule of justice the Law of conscience and christian charitie and against the Practise of other countries as aforesaid and finally against the creditors owne profit The Law of God willeth and commaundeth euerie man to follow a vocation to doe the honour Against the law of God duties and seruices owing to his Prince and countrie and Parents and to maintaine his wife children and family and to instruct them in the feare of God so that whatsoeuer directly or indirectly forbiddeth the said christian duties in the performing thereof by an imprisonment is against the law of God whereupon all humane lawes ought to be grounded No law of God willeth or commaundeth imprisonments of mens bodies for debt nor is it warranted by any example in the word of God and the efficient meanes bringing men into prison as vsurie is appeareth plainely to be forbidden by the word of God as hath beene noted out of the old law neither hath the law of the Gospell a word of commaund or warrant for imprisoning a christian brother for debt Exod. 22.26 Deut. 23.19 Leuit. 25 35. Ezech. 18 8. Ieremy 34.14 but rather containeth a commaund to relieue him if he be fallen into decay to take care how and wherein he shall sleepe to set him free at sixe yeares end and then to reward him By the Law of man it was not so Ab initio for by the Common Laws of England Against the law of man which are the most ancient most eminent most binding lawes no man may be taken or imprisoned for debt but the creditor was to take satisfaction vpon the debtors estate of goods lands according to Magna Char. 3. H. 3. and 14. Ed. 3. although after accountants onely were to be imprisoned vntill they paied which was made generall against all debtors by the statute of the 25. Ed. 3. cap. 17. yet prisoners in Execution might and did follow their vocation and affaires by baile mainprise or baston as by the statute of 1. Rich. 2. cap. 12. and from that time forwards were prisoners tied vp shorter to the writ of Habeas corpus or the Kings speciall mandate vpon surmises Habeas corpus that the said debtors made secret estates in trust to defraud their creditors or were wilfull and obstinate to pay them being able To answere these obiections it is vniust to punish all promiscuously aswell frauders as non frauders without and before any proofe made yet if the fraud were proued or his abilitie and sufficiencie either there is no cause to imprison his bodie because the law doth giue the estate fourthwith to the creditor whether the debtor will or no so it is still needlesse to imprison the bodie for twentie yeares imprisonment discounteth neuer a pennie of the debt and yet the debtor hath suffered more miserie and punishment than a guiltie Traytor or Rebell suffereth for the highest offence It is against the rule of Iustice and law of Nature Against the rule of Iustice. that men equally free borne should be depriued of the common and equall libertie and bee giuen into the power of another without criminall cause or guilt The debtor is either punished for guilt or cohersion if for guilt it is against the rule of
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
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
they shall speake truth to that which shall be demanded of them 3 That they shall not require without iust cause any time of prolongation 4 That they haue not nor wil attempt to corrupt witnesses 6 The sixth time vpon the contestation and interlocutorie sentence you must obserue nine things 1 That the witnesses be presented in presence of the partie against whom they are produced 2 That they bee freemen and honest and not hired nor corrupted 3 That they bee sworne and the producent payeth his charges 4 You may inquire of the partie that doth produce the witnesses as also of the witnesses by certaine articles what may appertaine to the cause in regard of their admittance for to bee sworne because their deposition is the ground of the matter 5 That the plaintife hauing had three seuerall times to produce his witnesses shall not haue any other time to examine any more vnlesse he do sweare that he knoweth not what the former witnesses haue deposed and the Iudge do assent thereunto 6 If the witnesses haue declared any thing obscurely they may declare the same more plainely if the Iudge do desire the same at the intreatie of the partie according as he shall direct 7 After publication of the witnesses depositions there may not any other witnesses be deposed vpon the said interrogatories or any matter touching the same 8 That the witnesses be examined of the time of the place and of the case it selfe whether they haue seene or heard the same what they beleeue or know thereof or of the report they haue heard 9 That to auoid charges there be not too many examined A Maximo of the Law of Arragon The seuenth time is when all must bee alledged which may any manner of waies make for the state of the cause and if it fall out that two witnesses tell one tale as it were verbatim their euidence is voide and the eight time the Iudge proceedeth to a definitiue sentence and the ninth time which must be done within tenne daies the partie may appeale and therupon for the tenth time the pleyto or suite with all the records goeth out of that Iudges court to a higher court where it may not depend aboue a limited time The obseruations doe minister an occasion that many controuersies are ended without law for the parties are not sure to obserue these times and the defendants which seeke delaies are not contented with so short a time of pleading the complainant also may know whether it be safe for him to take his oath as aforesaid that hee is in conscience persuaded of his right To abridge the multiplicities of suits and moreuer paying a fine for wrong molestation abridged with them heretofore the multiplicities of suits Omitting now to speake of other courts of equitie and calling law and Equitie to bee the Common Law so much commended aboue the Ciuile Law by the said M r. Fortescue sometimes Lord chiefe Iustice of the Kings Bench in the time of King Henrie the sixth who hath obserued fiue points wherein the same consisteth let vs obserue many more to extoll the excellencie of the said Common Law as followeth summarily 1 First because of the antiquitie thereof Excellencie of the Common Law of England for that in all the times that the Realme was inhabited by fiue seuerall nations the same was still ruled by the said Customes that it is now gouerned withall which if they had not beene good some of the Kings of these seuerall nations mooued either with justice or with reason and affection would haue changed or abolished the same especially the Romanes who iudged all the world 2 Secondly for that the Kings of England at their Coronation doe take a solemne oath to cause all the Customes of the Realme to be faithfully obserued according to the former institution 3 For that the said ancient Customs or Maximes therof are inexpugnable and doe stand of their owne authoritie as Principles which need no reason to confirme their authoritie as the Lawes of Solon Draco Carondas Licurgus Numa Pompilius and the Law of twelue Tables c. 4 Because all differences and controuersies which happen betweene the King and his subiects are tried and determined by the Law and if it be done in Parlement or by the Iudges it is still according to the Law 5 Because the King personally giueth not any iudgement especially when himselfe is a partie seeing it is against the Law of Nature to be both judge and partie 6 For that notwithstanding the decease of the Kings of England from time to time the Iudges of the Courts of Record that is to say of the Chancerie of the Kings Bench of the Common Pleas which doe sit as Iudges by the Kings Letters Pattents doe remaine authorised and their power ended not immediately with the King howbeit the succeeding Kings doe confirme them in their offices whereby all seditions are preuented during the inter Regnum 7 For that with indifferencie without regard of persons it commandeth as well the Nobilitie and other persons of dignitie by way of vtlagare or outlaw as the meanest subiects 8 For exercising a power ouer the Iudges which are not to judge of the Law but by the Law and therefore is the word Iudicium properly attributed to their determinations euen as the word Decretum is vnderstood of the ordinances or sentences of the Magistrates following equitie as it were without Law For there is the like proportion betweene the Law and the execution thereof called Legis Actio as there is betweene Equitie and the dutie of a Magistrate called Iudicis Officium 9 For that the officers thereof are authorised according to the qualitie and due execution of it by a proportionable distribution namely The Iudges for terme of life and officers subalterne changing from yeare to yeare to the end the administration of justice may bee more indifferent 10 For the diuersitie of the triall thereof in seuerall Courts according to Law and Equitie is the cause of an agreeing and most necessarie discord as it were Concordi Discordia whereby the bodie of justice is supported by striuing as the stones vpholding a vault as Cato saith 11 For that the Iudges in criminall causes doe change from time to time their circuits and inferiour Iudges of the Court doe execute the place as well as superiour Iudges whereby partialitie is preuented 12 For that the Law tendeth most carefully for the good and preseruation of life and goods of euerie good and honest man seeing that euen in criminall causes it hath prouided as much as may stand with justice a helpe and fauour permitting the Iudges to order the pleading of offendors and to instruct them to auoid mispleading and giuing them leaue to except against the Iurors which they dislike 13 For that it doth forbid the sale of offices thereby intending due administration of justice for where offices are sold as it were by the Great there justice is commonly solde by
Coelo the rather for that so many good Acts of Parlement haue beene made long since concerning the same when the Staple of our commodities did flourish both here and beyond the Seas in the time of King Edward the third The maintenance of â—ree Trade Anno 1622. And hauing of late published tenne causes of the decay of Trade it may be thought conuenient to examine the same vpon the said points 1 The vnderualuation of our moneys by Bills of Exchanges and the ouerualuation consequently of forraine coyne vnto vs which is the Efficient Cause of the want of money in England 2 Vsurie Politike practised by many and abandoning Trade 3 The litigious suits in Law to the hindrance of Trade 4 The neglect of the fishing Trade preoccupied by other Nations 5 The endraping of Wooll in other countreys of late much increased 6 The policies of Merchants of seuerall Societies 7 The false making of Cloth and other manufactures 8 The exportation of the materialls of Woolls Woolfels c. 9 The warres of Christendome Pirats and Bankerupts 10 The immoderate vse of forraine commodities within the Realme But before we come to this examination The beginning of the Staple let vs obserue the beginning of the Staple and their priuiledges in the gouernement thereof The most ancient foundation of Merchants and merchandising in this Kingdome both for Trade and Gouernement had by continuance of time before King Henrie the third did obtaine the name of Staple the commodities of the Realme as Woolls Leather Woolfells fells Lead Tinne Butter Cheese Clothes and other commodities were called Staple Merchandise The Ports from whence the said commodities were to bee transported were called Staple Ports as London Westminster Hull Boyston Bristoll Southampton New Castle and other places The places of residence of these Merchants both within this land and beyond the seas were called the Staples the Lawes and Ordinances made by the said Merchants were called Staple Lawes vnder their gouernement consisting of a Maior two Constables and other Officers hath the trade of this Kingdome time out of mind flourished to the great inriching of the Kings and Kingdomes and it hath beene supported and assisted by the wisedome of the State in all ages as may appeare by the seuerall Acts of Parlement made for that purpose in the times of Henrie the third Edward the third Richard the second Henrie the fourth Henrie the fifth Henrie the sixth and King Henrie the seuenth So that comprehending the Merchants aduenturers Societie with them which began in the said time of King Henrie the seuenth it is aboue foure hundreth yeares standing that the said Societie hath beene as we haue noted For by the prouidence of all those Princes the Staple Trade was from time to time established and especially by King Edward the third in whose raigne a great number of memorable Lawes were made for the purpose appointing the said officers and their fees to preuent extortion and all the Kings subiects that would bring their goods to the Staple and trade The ancient free Trade according to the Lawes and Ordinances thereof were admitted to be Merchants such was the free trade of this kingdome in those daies wherein the subiects of all sorts vpon all occasions might freely participate vnder gouernment At these Staples were the Kings Customes duely collected and by the officers of the Staple at two seuerall times paied into the Kings Exchequer and by their gouernment were many inconueniencies preuented whereby the former causes of the decay of trade were either moderated or reformed namely 1 The moneys of the Realme were required to bee answered in true exchange according to their intrinsike value and their Doller or other forraine coyne was by the Maior and Constables valued accordingly for there was no merchandising exchange vsed neither were Bankers knowne and when there wanted money in the kingdome or was like to want order was taken by them to import Bullion either the 1 â— or 1 â— part of the value of commodities exported The debts betweene Merchants were transferred or set ouer by bills to bee registred before the Maior or Constable which was currant without the strict proceedings of our Common Law And the like may be done now by a Register authorised by his Maiesties letters Parents 2 In those dayes vsurie was accounted to bee an abominable thing for it was not vsed by any course politike but seeing it is now so generall in all countreys the best remedie to abate the same in price is to procure plentie of money within the Realme by the meanes before mentioned which will bee more effectuall of course than any law that will be deuised for the moderation thereof 3 To auoide the litigious suits in law the said Maior and Constables of the Staple had authoritie to determine them with all expedition and if it were vpon a difference betweene a Stapler and a Merchant stranger there were two Merchants strangers admitted and ioyned with the Maior or Constables to determine the same and that with a present execution without delay especially vpon a Statute Staple acknowledged before the Maior or Constable as aforesaid 4 The fishing Trade was not preoccupied by forrain nations as it hath beene within these hundreth yeares as hath beene noted albeit such Ships as were permitted to fish in the Kings Seas and dominions payed six pence for euerie tunne burthen which is now eighteen pence and this trade might be established with vs notwithstanding that the seuerall Societies of the Merchants Aduenturers Russia and Eastland Merchants are of opinion that England cannot maintaine the same and the cloth Trade together as they haue certified 5 The indraping of wooll or making of cloth being of late much increased beyond the Seas and lesse cloth made with vs may giue the better meanes to establish the fishing Trade as aforesaid 6 The pollicies of Merchants of seuerall countries is to bee met withall as the Staplers did in times past looking to the sales both of woolls and all other Staple commodities and the prices of forraine commodities to preuent the ouerballancing in price of the said forraine wares with our natiue commodities 7 To preuent the false making of cloth let vs obserue that at these Staples Merchants goods were alwaies diligently and carefully viewed and subscribed by the Correctors and other Officers of the Staple to the end that all goods exported might bee answerable in goodnesse to their expectation vpon the view required whereby this Staple Trade continued without any interruption for they were the sole Merchants of the Realme without competitors vntill the time of King Henrie the fourth at which time certaine Mariners and Mercers of London vsing to barter English clothes in Holland Zealand Brabant and other places had by the said King Henry the fourth a gouernour set ouer them onely to bee a iudge to heare and decide their controuersies and to punish their misdemeanors with license that they might congregate themselues for that