a summe of money of the owners of a ship in consideration that he fraighteth the said ship for a voyage promising to repay the said money at the returne of the said voyage if the said Factor haue fraighted this ship for another mans account this Merchant is to haue the benefit of this money during the time and if the Factor conceale the same he is to repaire the damage thereof which is to be considered both for the interest and aduenture of the seas for the said owners beare the same and it is supposed that the Merchant would haue assured so much the lesse or by imploying that money towards the lading of the ship he should disburse to much money lesse to make the said voyage and it may be thought that in regard of that money the fraight is made the greater whereof the said owners of the ship haue had a consideration by disbursing the same Assurance If a Factor be required to make assurance for a Merchant vpon a ship or goods laden for a certaine voyage and haue moneys in his hands to pay for the Premio or the price of assurance and this Factor doth neglect the same and giueth no notice of it to the Merchant who might haue made assurance in another place and the said ship or goods do perish at the seas this Factor is to answere the damage vnlesse he can giue some sufficient reason for the non-performance of the said order or Commission Composition made without order If a Factor hauing made assurance vpon goods laden which afterwards are taken by the enemie maketh any composition with the assurers for the same without order or Commission for it he is to answere the whole assurance to the Merchant A Merchant caused a ship to be fraighted and laden with commodities for Constantinople by a Factor of London himselfe dwelling at Antuerpe and being a subiect to the king of Spaine in the late warres caused 2000 ll to be assured at London vpon the said goods the ship and goods was taken by the Gallies of Sicilia and brought to Palermo where it was proued that the goods did appertaine to the King of Spaine his subiects but that there was 2000 ll assured at London by English Merchants their enemies in those daies pretending thereupon to take the said goods for forfeited or so much of them as should amount to the summe so assured Hereupon the Assurers hauing intimation from the Factor of it desired to make some composition to auoid that danger whereby the goods also might bee sooner cleered and the possession obtained for the owner and proprietarie thereof which was the Merchant of Antuerp wherein expedition was required The Factor in regard of the said expedition did not stay to receiue an answere from the Merchant what hee should doe but maketh a composition with the assurors for 60 pound for the hundreth pound to be payed instantly The goods were afterwards all recouered whereof so much as had beene assured was formerly relinquished to the assurors for the Merchant would not condescend to make any composition with the assurors So that the Factor did beare the aduenture to lose 2000 ll for some 1200 ll which hee had receiued if the goods had not beene recouered and therefore the said Factor tooke to himselfe the benefit of this composition by the aduice of the experienced Merchants If a Factor by errour of account doe wrong vnto a Merchant Accounts hee is to amend and to make good the same not onely for the principall but also with the interest for the time So on the contrarie if a Factor for his owne wrong haue forgotten to charge the Merchants account with some parcells payed out for him or made ouer by exchange the Merchant is to answere for it with interest for the time In these precedent obseruations are comprised all other cases of differences which may happen betweene Factors and Merchants CAHP. XVII Of the beginning of Sea Lawes HAuing in the former Chapters methodically intreated as also in this hitherto of the matters therein intended neuerthelesse according to the Contents of them the matter being of seuerall natures runneth promiscuously but in the end will performe the worke For as the roundnesse of the Globe of the world is compounded of the Waters and the Earth So this worke of the Law-merchant cannot be compleat without the Sea Lawes so called Lawes because they are written and knowne for without Nauigation Commerce is of small moment so that the Land affaires shall be intermixed with Sea-faring matters accordingly Some doe attribute the first making of Sea Lawes to the Pheniciaus and Carthaginians because Plinie doth ascribe the Art of Sayling vnto them But by the most ancient Records the Beginning must be from the inhabitants of the Island of Rhodes Rhodian Law scituated within the Mediterranean Sea who were most famous for shipping and sayling as Strabo hath written and surpassing all Nations in knowledge of equitie in Maritime causes and the Mediterranean Sea was for aboue one thousand yeares onely ruled by their Law called the Rhodian Law although augmented with some additions of the Romanes At last as some haue recorded when all sorts of Lawes by the euersion and lacerating of the Romane Empire were in a manner buried the Rulers of Rome in the yeare 1075 made new Sea Lawes and Statutes and so did euery chiefe Seafaring Towne vpon the said Mediterranean Coast adding thereunto other ordinances So did they of Marseilles in the yeare 1162 Genoa in the yeare 1186 they of Peloponessus called Morea in the yeare 1200 the Venetians in the yeare 1262 Constantine 1270 Iames King of Arragon the said yeare Peter King of Arragon 1340 and they of Barselona 1434 Which Lawes are collected and extant vntill this day But on the great Ocean Seas The Law of Oleron the first Lawes were made by the inhabitants of the Island of Oleron scituate on the Sea-coast of France neere Saint Martin de Rea against the Riuer of Charante which was called Le Roll d' Oleron by which the controuersies on that Coast were determined and the said Lawes were afterwards dispersed and brought in vse in England and the Low Countries whereupon diuers Statutes both in England and Scotland haue been enacted for Sea-faring businesse and in like manner diuers ordinances in the Low Countries especially since their fishing trade began Edward the third King of England caused with the aduice of diuers men of knowledge and experience in Maritime causes diuers Articles to be set downe Admiraltie Court in France and these were enrolled and obeyed for the gouernement of the Admirall Court and the French King Iohn made his Contracts with King Edward accordingly concerning the fishing trade as by the Records extant in the Tower of London where I haue seene them may appeare Francis the French King and Henrie the third of France haue made some Statute Lawes concerning the Courts of Admiraltie but the substance of all
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
coynes which is of late yeares established to preuent the inhancing of coyne and yet it cannot be sufficient to preuent the said incertaintie of the price of commodities If the standards of the said moneys were by allay of copper altered much lesse would the aduice giuen that Merchants accounts should no more be kept in liuers and soulz but in French crownes to hinder the inhauncing of moneys which in some countries is secretly practised to bee done of meere policie when by publicke authorie it is forbidden and might be effected as within the realmes of England Scotland and Ireland and other his Maiesties dominions where the moneys are not inhaunced betweene man and man and remaine currant according to their price vntill the kings authoritie doe alter the valuation by Proclamation albeit by exchange it is not so and therefore according to my third Paradox we shall find That the imaginarie moneys in exchaunge doe ouerrule the substantiall moneys in specie The third Paradox For the Merchants valuation of moneys in exchange doth ouerrule the Kings valuation of moneys within the realme For when the King hath valued the shilling peece at twelue pence Merchants vndervalue the same in exchange at 11 ½ d and 11 d not only in the price of exchange but also receiuing beyond the seas the inhanced moneys aboue their values and not valuing of them in exchange accordingly as before hath been obserued concerning the valuation of moneys and the imaginarie coines or rather moneys wherupon exchanges are made for so many seuerall places The late Earle of Donfermelling Lord Chancellor of Scotland did propound vnto the Kings maiestie in the yeare 1610 Proposition of the Earle of Donfermelling a certaine proposition touching the inhauncing of gold his lordship being of an excellent iudgement in mint affaires That the French crowne of the Sunne which went neuer in England to vse his owne phrase all Queene Elizabeths time aboue six shillings English money went now for seuen shillings and three pence and that the English double soueraign of twentie shillings went in France for eleuen francque or twentie two shillings and that both waies there had bin no alteration in the standard Whereupon he did demand in writing what was the cause of the said difference or alteration if this proceed said he from the goodnes of the gold that it is better in finenesse and allay or in weight or from the weakenes of the siluer that it be worse than it was either in finesse allay or in weight then is the cause intrinsick and substantiall and may be easily considered and resolued if it bee good or euill to be intertained maintained and set forward or reiected and stayed from all further course if there be any other cause or reason it must of force bee extrinsicke and accidentall let the same bee searched out if it bee good to the Prince and estates weale and commoditie it should be assisted and continued if it be tried euill proceeding from the policie and craft of trades-men tending onely to priuate gaine and commoditie preiudiciall to the Prince and State to be gainestood and expelled This proportion being sent vnto mee by a great personage then in high place was made plaine by demonstration to proceed of an accidentall cause by aduancing the Valuation of gold partly in England when Crowne gold was valued from fiftie fiue shillings the ounce to three pound and partly in France when they did aduance the French Crowne in specie fiue soulz aduising therewithall that to remedie the same it was not to bee done by inhauncing of our gold still more and more but in the price of exchange betweene France and vs otherwise wee should vnderualue too much the siluer of the Realme to our exceeding losse shewing withall how easily this might bee done without alteration of the proportion obserued betweene gold and siluer for most places But the contrarie was approued and Crowne gold was more inhaunced to sixtie six shillings the ounce by two seuerall Proclamations Nouember 1611. which hath proued the losse of our Siluer in bullion or weightie coyne daily breeding greater inconueniences by the want of our moneys which by reason of the vndervaluation in exchange and not by vndervaluation in specie are continually exported none imported but diuerted by gaine for other places as hath beene declared All which commeth to passe for want of true iudgement and experience in mint affaires with the consideration of the said Essentiall parts of trafficke so often mentioned whereof I hope that in generall meetings for the publicke more regard will be had to the end it bee not recorded of vs as it hath beene of some Parlements in Fraunce that in populi republica sententiae numerantur non ponderantur and then we shall be said to vnderstand the Par by right distinction betweene the actiue and passiue Pâ—ys 3. lib. ca. 3. Aristotle saith that Action and Passion are meerely Relatiues and that they differ no more than the way from Thebes to Athens and from Athens to Thebes let vs discerne therefore the one from the other and we shall find that as the Liuer Money ministreth spirits to the Heart Commodities and the heart to the Braine Exchange so doth the Braine Exchange minister to the whole Microcosme or the whole Bodie of trafficke Let the Heart therefore by the Liuer receiue his tintured Chylus by his owne Mouth and Stomach and the Bloud full of Spirits shall fill all the Veines and supplie the want of moneys the easie course and recourse of whose Exchange shal bring all things in tune serue all mens turnes For euen as there are two courses obserued of the Sun Two courses of Exchange like the two courses of the Sunne the one annuall and the other by dailie declination rising and going vnder within the Aecliptique line euen so must we obserue in Exchange two courses the one according to par pro pari or value for value the other rising or falling from time to time as hath beene sufficiently declared whereof the said Aristotle Seneca nor Cicero nor any other Phylosopher or Orator could take notice in the infancie of trade Exchange not being then inuented neither do we find that any Temporall or Ciuile Lawyer hath entred into this important studie for the welfare of kingdomes and Common-weales by the rule of Equalitie and Equitie hitherto To conclude therfore this Paradoxicall discourse I cannot omit to doe the same with another Paradox by me obserued in the making of moneys of gold and siluer namely That a man may commixe Bullion to make a certaine standard of moneys either of gold and siluer A very strange Paradox and after the commixture made shall alter the standard and make the same better or worse without putting any allay or siluer and gold vnto it That is to say I will melt downe eleuen ounces and two pennie weight of fine siluer and eighteene pennie weight of copper both one pound Troy
Alteration of ten dayes made by Pope Gregorie the 13. IVlius Caesar the first Emperor of Rome a man learned and of great magnanimitie considering that the Romane yeares were reckoned confusedly according to the course of the Moone by the Hebrews with their intercalar moneth to make the same agree with the Sun By the counsell and instigation of Sosigenes an expert Mathematician about 44 yeares before the Birth of Christ deuised a new foâ—me of Kalendar first framed after the course of the Sunne diuiding the whole yeare into three hundred sixtie fiue dayes and sixe houres making it to containe twelue moneths whereof the names are yet in vse beginning from March for the first moneth which caused September October Nouember and December to beare their names the seuenth eightth ninth and tenth moneth yet all yeares by the Almanackes putttng Ianuarie for the first moneth beareth the name accordingly from the Heathen god Ianus painted with two faces as it were beholding the yeare past and the yeare to come Februarie was so called of certaine sacrifices then offered called Februa March of Mars an Heathen god April the denomination of the moneths of the Spring Time and the word Aperio opening all vegetibles and other things May of Maya the mother of Mercury Iune a Iuniore for that all the yong people had a meeting in that moneth for recreation Iuly of his owne name Iulius and Augustus for the inlarging of the Empire Now forasmuch as the odd six houres could not conueniently bee brought to account euerie yeare hee ordained that euerie fourth yeare one day should bee added to February because foure times six houres maketh vp a whole day of foure and twentie houres and the yeare wherein this odde day falleth The Leape yeare wee call commonly Leape yeare hauing three hundred sixtie six dayes And because it was added at the six Calends of March it is named in Latine Bissixtus or Bissextilis Annus Neuerthelesse Iulius Caesar did begin his Kalender in Ianuarie when the Sunne entreth the eighth degree of Capricorne eight dayes after the winter Solstitium Solstitium which then being the shortest day of the yeare fell vpon the twentie fiue of December And the Spring Time Equinoctium about the twentie fiue of March Equinoctium The which places of the Sunne are now changed and sliden backe in the Iulian Kalender from the said obseruation of the Spring Equinoctium as also from the Haruest Equinoctium being about the twentie six of September the longest day then falling out the twentie fiue of Iune grounded vpon this reason of preuention of the Equinoctiall to the twelfth eleuenth and tenth dayes of the said moneths and the thirteenth and fourteenth of September But the chiefe cause proceedeth by reason that Iulius Caesar did reckon the yeare to continue three hundred sixtie fiue dayes and six houres which is more than the iust Astronomers calculation by tenne minutes of an houre and fortie foure seconds accounting sixty minutes to an houre and sixtie seconds to a minute so that the yeare truely containeth three hundred sixtie fiue dayes fiue houres fortie nine minutes The difference as the account of yeares for the errour and sixteene seconds as is before declared which difference in the space of one hundred thirtie foure years or thereabouts maketh one whole day and in the space of one thousand six hundred sixtie foure yeares being the time that the Iulian Kalender was set forth vntill the last yeare it commeth to twelue dayes twentie two houres fortie minutes and twentie fiue seconds For this cause sundry learned men haue heretofore desired that the same may bee reformed to auoid inconueniences and to haue a true account of yeares and dayes And the matter was propounded to diuers generall Councells but tooke no effect till now of late yeares by meanes of Pope Gregory the thirteenth in the yeare 1582 and then it was permitted to one Aloysius Lilius professor in Mathematicke Astrologie to set downe this long desired Reformation who being resolued to doe the same exactly by true account was hindered by the Clergie for they would not agree that the same should be drawne backe any further than to the time of the Nicene Councell which was in the yeare 328 and hereupon hee brought the reckoning backe only ten daies caused the fifteenth day of December to bee called the twentie fiue day Alteration of tenne dayes and the inconueniences which is but obserued in some places and brought great controuersie in diuers countries seeing the day of the Natiuitie of Christ and other Festiuall dayes and also dayes of keeping of Faires and Markets are changed and holden tenne dayes before the accustomed time And Merchants and others in making their Contracts and Obligations are often disappointed of their dayes of payment with diuers other inconueniences Whereas men of true iudgement might haue made this argument Is it by the addition of Time growing by certaine minutes and seconds euery yeare arising to one whole day euery fourth yeare in the moneth of February Then as it is increased thereby thirteene dayes in one thousand six hundred sixty foure yeares it may by the same Rule decrease so much in few yeares A true and good reformation of the Iulian Kalender by leauing out and suspending that one day which is so added vntil it come to his first institution and calculation of the Iulian Kalender which may bee reformed in fiftie two yeares beginning from the yeare 1620 being Leape yeare and leauing out thirteene dayes which is little more than one houre in the said and is no perceptable difference and after the said fiftie two yeares expired to adde the said day againe and there will not increase any one day more but in one hundred thirtie foure yeares And all the yearely obseruations may be accommodated accordingly I made an exact Table heereof in the yeare 1604 whereby the day of the Natiuitie of our Sauiour fell out againe to bee the shortest day of the yeare This Table was shewed vnto the Kings Maiestie of Great Brittaine as I was informed and howsoeuer pleasing yet for some causes to mee vnknowne not held fit to bee established CHAP. III. Of NVMBER and the Mysteries thereof VNitie is the Spring and Fountaine of Numbers which hath a reference vnto God the only fountaine of Goodnesse the onely Father Creator and preseruer of vs all Heere let vs note that the Philosophers haue not onely with one consent affirmed That great mysteries and vertues are contained in numbers But the ancient Fathers haue also obserued the same in the holy Scripture as Ierome Augustine Origen Ambrose Basil Athanasius Hilarius Rabanus Beda and others amongst whom Doctor Rabanus hath made a booke of the vertues which are hidden vnder Number And if there were no mysterie comprehended vnder Number Saint Iohn in the Reuelation would not haue said He that hath vnderstanding let him reckon the Number of the name of the Beast
indeauour still to sell good cheape who seeth not that this bringeth an euident ouer ballencing of commodities in price which is to be ballanced by the treasure and monyes of the Realme Againe if our home commodities be sold too good cheape other nations can make a trade thereby for other countries and ouerthrow the trades of seuerall Societies of the Realme We haue seene in times past that the Westerne colour Carseyes were sold at Norenborough in Germany to the great losse and hindrance of the then Turkie trade and at this present our Suffolke clothes are sold so good cheape beyond the Seas at Amsterdam and other places that they haue made a large trade for Russia and East-land with our home commodities and thereby ouerthrowne our trade by preoccupying the Markets and ingrossing the commodities of those countries aforehand From Zealand there is a trade establisâ—ed for Barbarie with the said clothes sold vnto them thereby preuenting the trade of English Merchants which yeeldeth them but little profit and the commodities which they bring in returne as Hydes Almonds and other things are better vented beyond the Seas where our Merchants are forced to transport them and the gold which they bring affordeth but little profit The times and seasons of trade are variable so that to make commerce to be a pastime is neither beneficiall to the Common-wealth noâ— to particular persons The times or seasons of Trafficke and Trade are mutable and subiect to accidents which is the cause that at some one time commodities are well vented and at another time not the rash sale is not the profitablest Haue not wee found of late yeares that cloth was sold in greater quantitie and at greater prices when the Todd of Wooll was sold at 32 and 33 shillings and clothes accordingly than now when Wooll is sold for 18 and 20 shillings The reuolution of things may alter againe and reuiue trade if not procure you to haue foraine commodities better cheape whereof you haue not so much need as they haue of ours Striue not to vndersell others to the hurt of the Common-wealth vnder colour to increase trade Causes increasing trade and commeâ—ce for trade doth not increase when commodities are good cheape because the cheapenesse proceedeth of the small request and scarsitie of money which maketh things cheape So that the contrarie augmenteth trade when there is plentie of money and commodities become dearer being in request Concerning the particular barter or truck with Merchants euery man doth know who dealeth therein Particular barters that this is done with such dexteritie to take aduantage in the price of their coÌ„modities one against the other that commonly either the one or the other findeth himself agreeued For the ouerreaching therein is accounted an vsuall and ordinarie practise and the commodities thus bartered are plentifull and not in request whereby it commeth to passe that to haue good commodities which are vendible at all times there is part giuen in readie money or in Billes payable at short dayes of payment whereby many Merchants are ouerreached and can haue no remedie by law nor equitie Hence the Prouerbe is deriued Caueat Emptor for it is a buying and selling implying an aduantage intended by both parties how soeuer they wil seeme to colour the matter So that the Prouerbe is not to be vnderstood vpon all bargaines of commodities whereby a man becommeth a loser and he that dealeth in barter must be very circumspect and the money giuen in barter cannot be ouerset Whereupon a principall Merchant of London made once a barter in hope to ouerreach another Merchant and they both being resolued to doe their best indeauour therein agreed to esteeme and value their commodities at a high rate A cunning commutation but withall the great Merchant would haue the one moitie of the somme they should barter for in readie money and so the more hee did ouerualue his commoditie which was cloth the more money was the other to lay out The bargaine came to one thousand pounds starling whereupon the partie payed fiue hundreth pounds in readie mony instantly for all was done in two houres and deliuered him also fortie halfe pieces of Lawnes at a certaine price the first piece and in euery two or three pieces raising the price as the manner is in that kind of commoditie The great Merchant had ouerset his commoditie or clothes fiftie vpon the hundreth and the other Merchant that could not ouerset his money had valued his Lawnes at a very high rate of three for one at the least For all the said fortie halfe pieces of Lawnes were sold for 120 ll payable at two yeares day of payment and by the cloth there was not lost aboue one hundreth pounds Hereupon long after the said parties fell at variance the cause was by them compromitted vnto verie sufficient arbitrators Merchants and they did approoue and confirme the said Commutation and Barter to bee good for that the commoditie was Merchantable and they had endeauoured to trie their wits to ouerreach each other And moreouer they awarded the great Merchant to pay charges and willed him to remember the old Prouerbe Hee that buyeth Lawne before he can fold it will repent before he hath sold it But these particular commutations betweene man and man are not hurtfull to the Common-wealth vnlesse they be betweene vs and forraine Nations in the pluralitie of the things commuted betweene vs and them A Rule for commutations To prescribe therefore some kind of Rule in Permutations let vs obserue that there is in effect Three kindes of them and may bee distinguished and said to bee Discreet Temperate and Desperate Discreet commutation The Discreet is where without any compulsion or of course one kind of commoditie is either in specie or according to the rule of money bartered or deliuered for another commoditie of another Kingdome as the bargaine was to deliuer Sea-coales of New-castle into France for Salt paying the fraight on either side equally betweene them Temperate commutation The Temperate Commutation is where a Merchant doth expect a conuenient time for the selling of his commoditie according to the accidents and occasions offered and doth not ouerthrow the Market of others that haue the like commoditie to sell by his rash sale Desperate commutation The Desperate Commutation is meere opposite vnto it where a man either for want of discretion or vpon vrgent necessitie to supply his credit and occasions selleth or bartereth away his commodities for other forraine commodities to returne homewards In all which great discretion is to be vsed and this ought to be a principall studie for Societies and Companies to looke vnto Albeit the same is not of such importance as the buying of forraine commodities at deere rates when Merchants striue to engrosse them vpon the arriuall of Ships as for Corrints hath happened at Zante and Venice CHAP. IX Of ordinarie buyings and sellings of Commodities EVerie
doth concurre and agree with the Lawes of Oleron whereof we shall intreat more hereafter Fredericke the second King of Denmarke at a Parliament holden at Coppenhauen in the yeare 1561 hath abridged as also set downe certaine Acts or Statutes for the ruling of Sea matters but for the most para agreeing also with the said Lawes of Oleron which you shall find in this Treatise set downe vpon euery occasion offered vnto me to make application of them in the Chapters following CHAP. XVIII Of the manner of Proceedings in Sea-faring Causes ALl controuersies and differences of Sea-faring Actions or Maritime Causes ought to be decided according to the Sea Lawes which tooke their beginning from Customes and obseruations and from them is the interpretation of the said Law to be taken and if any Case shall fall out that was not knowne before neither written downe and authorised as a Law then the same is to bee determined by the Iudge with the opinion of men of experience and knowledge in the said Sea-faring causes And herein is all conuenient expedition required that the matter may be summarily and briefly determined especially in case of shipwracke wherein delayes or protractions in Law is a crueltie to vex such afflicted persons Therefore to preuent appellations present execution and restitution of goods is vsed in causes of spoyle vpon caution first found by the spoyled to satisfie the condemnation to the Iudge if there bee iust cause found of appellation Witnesses in causes Maritime and to this end also it is permitted that witnesses of the same Ship may be examined although the aduerse partie bee not called thereunto Merchants and Marriners sayling together in one Ship may beare witnesse each to other and Marriners against the Master when they are free and out of his command The plaintife is to find suerties to pay costs and damages if he doe faile in his proofe and the defendant is to be put in caution to satisfie the sentence Iudicio cisti iudicatum solui If the defendant doe stand out or commit a comtempt by not appearing for to defend himselfe or his Ship or things challenged the Iudge of the Admiraltie may after foure defaults entred deliuer the possession of the said Ship or any other thing or part thereof to the plaintife putting in sureties for one yeare and a day and if the partie appeare not within that time then the propertie is finally adiudged to the plaintife And if he doe appeare within the time offering to pay the expences and putting in caution to obey and performe the definitiue sentence he shall be admitted But this caution or suerties are lyable absolutely for all from the beginning and cannot be discharged as a Baile may be at the common Law Difference betweene caution in the Admiraltie and baile at the Common Law of England bringing in the partie at conuenient time Summons and Citations are not needfull where the ship or goods in question are forthcomming but may be done in the same place where it lyeth or the goods are found If any man be arrested or troubled for the like matters he is presently to be discharged vpon suerties and especially Marriners because they shall not be hindered of their voyage which he may doe with so much goods or the value thereof as he hath within shipboord at the Iudges discretion for it is intended that otherwise trafficke and commerce is interrupted CAHP. XIX Of Buying and Selling of Commodities by Contracts THE buying and selling of commodities by contracts may bee distinguished three manner of wayes namely Regall Notariall and Verball The Regall contracts are made betweene Kings and Princes and Merchants which caused the Kings of Portugall to be called Royall Merchants For whereas the Venetians had the trade for Spices and other commodities of the East Indies Regall contracts called by the Ciuilians Solemne the Portugalls vpon the discouerie of those parts by Nauigation did bereaue the Venetians of that trade as by the reuolutions of time other Nations haue almost compassed that trade of Spices and taken the same from the Portugalls The Kings of Portugall had alwayes the one moitie of the Pepper by way of contract and for that they would contract againe with the Germaines or other principall Merchants of other Nations and of their owne to deliuer the same vpon a price agreed vpon the arriuall of the Carrackes at Lixborne according vnto which it was sold againe with reputation to other Merchants and dispersed into diuers countries and so was it also done for Cloues and Mace and sometimes for Indico and the payments were made by assignation in the Bankes of Madrill Lyons and Bizanson and sometimes at Florence and other places hereupon was the Contraction-house at Lixborne erected and named accordingly where the said Spices and commodities are brought and sold againe Such are the contracts which the King of Spaine doth make with Merchants for the prouision of Corne for his townes in Africa vpon the coasts of Barbarie as Ceuta Mosegam Tangere and other places the paiment whereof hath beene made againe by Pepper vpon some especiall contract and the Merchants haue thereupon also made other contracts with Merchants of the Low-countries to deliuer them that Pepper at Amsterdam and to take Corne in paiment But the case is since altered by the incorporating of the East-India trade Such were the contracts made by the French king Henrie the third with the great Merchants of Italie called Le graund partie for Salt which they by authoritie did ingrosse for the king and brought also from other countries by sole permission causing euerie household in all France to take a proportion yearely or to pay for it whether they had occasion to vse it or not which was an Italian inuention and for this they paied by contract vnto the king six hundred thousand pounds sterling being two millions of French Crownes yearely Such were the contracts which Queene Elizabeth of blessed memorie made with Merchants of London for the prouision of victuals and apparrell for the souldiours in Ireland during the late warres with the Earle Tirone which did amount to verie great summes of money insomuch that the seuerall contracts for apparrell came to ninetie sixe thousand suits of apparrell as I haue seene by the Records and Accounts extant in his maiesties Court of Exchequer All these and such like contracts are made by commissions granted for that purpose to some great officers of the kingdome who haue thereby authoritie to contract for the same with Merchants or others Notariall contracts haue partly dependance vpon the same Notariall contracts called Publicke for when those Merchants which haue contracted with Kings or Princes are to prouide sodenly those things which they haue contracted for or to dispose of the commodities which they haue bought or ingrossed into their hands Then they deale with other Merchants either to prouide them of the said commodities or to sell them such as they haue bought
buying and selling of commodities either for readie money or payable at some daies of payment wherein the mediation of a Broker is most necessarie For as it would be troublesome to vse Scriueners in euerie bargaine so is it commodious to vse the meanes of Brokers the commodities are not onely bought and sold with more credit and reputation but all controuersies which doe arise by misaduenture or otherwise are sooner determined and a sworne Broker is taken as a double witnesse if he doe produce his booke with a Memorandum of the bargaine as the same was agreed betweene both parties whereby many variences are reconciled and differences like to fall out are preuented The most beneficiall contract I had almost forgotten the most memorable contracts that euer were whereby the Philosophers Elixar or stone is found turning Leade Paper and Inke into Gold and Siluer which is the contract of Popes for their Crusadoes or Bulls whereof there are certaine contractors who for a certaine summe of money yearely to be paied doe receiue authoritie to disperse the said Pardons or Bulls into the West-Indies Perou Noua Espagnia and all those quarters of the world and euerie resonable soule must haue one of them yearely and that this is the most beneficiall contract I proue thus In the yeare 1591 Pope Sixtus Quintus caused two ships to be laden out of Spaine for the West-Indies as aforesaid with some 100 Buts of Sackes 1400 little Chests containing each of them three ordinarie small Barrells of Quicke-siluer weighing 50 ll the peece to refine the Siluer withall in the said Indies and moreouer with a great number of Packes of the Printed Bulls and Pardons graunted at that time to make prouision against the Heretickes Forasmuch that the great Armada of the yeare 1588 had so much exhausted the treasure of Spaine These two ships were met withall at sea by Captaine White who was laden and bound for Barbarie and brought into England by him where the commodities were sold but the Popes merchandise being out of request remained a long time in Ware-houses at the disposing of Qâ—eene Elizabeth vntill at last at the earnest request of her Physitian called Docter Lopes she gaue all the said great quantitie of Bulls vnto him amounting to many thousands in number This courtly Merchant falling in communication with an Italian knight who had been a Merchant did conclude with the said knight to make a partable voyage betweene them and to send those Bulls into the West-Indies and accordingly a ship was fraighted and laden with the said Bulls and some other commodities and did perform the said voyage to the Indies but no sooner arriued the Popes Contractor for that commoditie did seise vpon all the said Bulls and caused an information to be giuen against them that they were infected hauing beene taken by Heretickes it was alleaged that they were miraculously saued but lost they were and confiscated and so couetousnesse was well rewarded But returning to prooue this beneficiall Contract The Pope his Merchandize I was at the time of the taking of the said Bulls willed by authoritie to make and estimate what the lading of these two ships might cost and what they might haue beene worth in the West Indies according to the rate of euery Bull taxed at two Royalls of plate and some foure and some eight Royalls according to their limitation euery one being but one sheet of paper and by computation the lading did not cost fiftie thousand pounds and would haue yeelded aboue six hundreth thousand pounds for these contracts are feruent and full of deuotion containing also a commandement that their beds should bee sold rather than any one should bee without a Bull for the safetie of the soule was to bee preferred before the health and ease of the bodie Now before we intreat of extrauagant Contracts in the buying and selling of commodities in some places it will not be impertinent to note the obseruations and opinions of Ciuilians concerning Merchants Contracts which they haue distinguished to be Solemne Publike or Priuate as in the Marginall notes is before declared to the end all controuersies may bee auoided in the said Merchants Contracts The Ciuilians writing De Contractibus Mercatorum Merchants Contracts are to be plaine or of Merchants Contracts make many distinctions but the conditions agreed vpon betweene them are chiefly considerable and to bee well declared to auoid ambiguitie and constructions and reciprocall things to bee performed on both sides which bindeth them better so that if a Contract be broken whereby the one partie is damnified for the want of his money or goods not deliuered whereby he can make no benefit and is hindered in his trade by Lucrum Cessans or not getting the other partie may iustly demand recompence for the same especially if hee bee a merchant otherwise some Ciuilians make the same questionable as Fisher-men Fowlers and Hunters which say they cannot demand any losse for want of their owne because by their professions they are vncertaine whether they shall catch or take any thing by their Art Neuerthelesse the Merchants Court hath an especiall care to performe well with Fisher-men Fisher-men are to be respected vpon Contracts and that with all expedition of iustice they may bee dispatched to follow their trade without any intermission of time This damage sustained by Merchants or others The first damage vpon Contrâ—cts to be regarded for the non performance of Contracts cannot bee demanded by a continuance of time running Ad infinitum during the matter in question but must bee demanded according to the first damage receiued as the partie can duely proue the same either by witnesses or vpon his oath as the cause may require Therefore when Merchants are contending in any Courts of Equitie or Law where they are delayed for many yeares in continuall suit at their great charges Then it tendeth to the interrupof trade and commerce in generall and the ouerthrow of the parties in particular whereof the Law of Merchants hath a singular care to prouide for and therefore doth many times though not without danger admit the proofe to bee made vpon the parties oath if witnesses be absent Penaltiâ—â— vpon contracts The penalties or forfeitures vpon any Contract limited and expressed be it Nomine Poene or otherwise are therefore much to bee considered of in equitie to make them stand and to bee effectuall for the mainetenance of Faith and Credit betweene Merchants and they are consequently much approoued by all Ciuilians and by their Law allowed In all Contracts made for a copartnership in prouiding of a ioynt Stocke is to bee obserued that the one or some of them doe not defraud the other Also it is approued that they may sell their aduenture to others and the buyer is to take the account according to the Contract Obseruations in partable contracts for the account giuen to other partners in Societies doth alwaies bind the buyer
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
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
also prouided by the said Statute That whosoeuer shall bee found to haue voluntarily yeelded to any arrest or his bodie to prison and so remaineth in prison for and during the time of sixe moneths thinking by that imprisonment to free his goods and to deceiue his creditors against him may the said Commission bee sued forth and executed accordingly for hee is to bee taken for a Bankerupt according to the said Statute and if the partie bee at libertie against whom the said Statute of Bankerupt is taken out the said Commissioners may if they see cause commit him to prison and giue him some allowance for his maintenance And of all their proceedings there is a Register appointed by his Maiesties Letters Patents vnder the Great Seale of England to record the same vntill the Lord Chanceller doe dissolue the said Commission by a Supersedeas Definition of the word Decoctor The Ciuilians are copious in the description of this Argument and haue attributed vnto this kind of people the name of Decoctor which is deriued from the word Decoquâ— as it were to consume the substance of things by decrease and euaporation of boyling ouer the fire otherwise called disturbers or consumers of other mens goods in the course of trafficke Neuerthelesse they doe obserue great distinctions betweene these persons as in the Treatise De Decoctoribus made by Benuenuto Straccha appeareth And the Definition of Bankerupts is three manner of waies distinguished First When a man becommeth insoluent by losing his goods and other mens by fortune mischance and casualtie which man is not taken to be infamous by the Law indeauouring to make satisfaction as he can Secondly When a man by wasting spoyling and viciously giuen consumeth his owne and other mens goods and hee by the Law is infamous Thirdly When a man is decayed partly by wasting and spoyling of his owne and other mens goods and partly by misfortune and accidents and this man is taken to be infamous if he be vicious Hereunto I may adde the fourth and most vile person who inriching himselfe with other mens goods breaketh without iust cause and onely of purpose to deceiue men according to the aforesaid example of Roan Albeit I am of opinion that the said Ciuilians haue left them out of the number to bee criminally punished as theeues to the Common-wealth by the magistrats or princes authoritie as the Banker of Florence was who breaking for many millions of ducats made a suddaine and deceitfull composition with his creditors for the one halfe and did pay them in readie money which being vnderstood by the great Duke hee caused his processe to bee made instantly and thereupon hee was executed also accordingly which was good iustice and is to be done by the Magistrates and not by the creditors Punishments of Bankrupts As of late yeares one of Genoa in Italy did vnto a debtor of his whom he knew went about to deceiue him for great summes of money whereupon hee caused a Chayre to be made and called the partie to his house and intreated him to sit therein which being made with certaine engines did suddenly so gripe and claspe in his said debtor that hee was compelled to pay him or it might haue cost him his life True it is that in Russia a man hath leaue to beat or to haue his debtor beaten vpon the hinder parts of the legs if he cannot pay and therewith is he discharged which is not so cruell as to keepe him alwayes in prison and make him to indure a lingering death wherein the vndoing of wiues and children are made partakers vniustly Concerning fraudulent dealers the Law is That by making Cession they shall not bee relieued and may bee apprehended in the Church whereas a free-man cannot bee arrested or taken in the Church but may be vnto him a place of refuge If hee bee found a fraudulent man by his bookes of account then any bargaine or sale made two or three dayes before his breaking by goods sold good cheape may bee recalled and auoyded and in like manner if he pay one man after his breaking the same may be taken to be done in fraud of all the other creditors and may be recalled for the generalitie So goods bought by him before breaking if they be found in esse may be claimed by the Seller to his particular vse and payment againe All coniectures of fraud may bee augmented and aggrauated against the fraudulent man according to the saying Semel inuentum decies factum If any man do breake in partnership the partnership is ipso facto dissolued by law but the credit of the other remaineth paying the debts of the partnership Also any commission giuen by him for the partnership is void instantly howbeit if a Factor by ignorance of his breaking haue caused his commission to be followed that which is done doth bind the Master and shall excuse the Factor Suspitious Debtors A debtor suspected by others may be touched before moneys be due and the creditor may attach some of his goods or pawns which is the cause that the writ of Latitat out of the Kings Bench court may be serued vpon them to find sureties for their apparance at the returne of the writ before the Iudges of the said court But the lawes in diuers countries do verie much differ in the proceedings and execution of these fraudulent men A question for suretiship Here ariseth a question Whether a Suretie can pretend to be discharged if the Creditors haue made or agreed with the Principal for a longer time of payment and the Principall breaketh The answer is That if he knew of the new agreement of the said partie for a longer time he is liable thereunto otherwise being bound as a Suretie for a time limited he ought to be cleered at that time or to make suit or demand to haue his satisfaction of the Principall as also of the Suretie which being neglected doth in equitie discharge the said Suretie the reason is because if the Suretie do break at or before the time of the payment the Creditor may demaund another Suretie in that mans place which is broken wherein the law is verie indifferent And this is the cause that diuers Lord Chauncellours of England for moneys taken vp at interest vpon bonds were of opinion That when the said moneys are continued or prolonged at interest the bonds should be renewed and the counter-bonds also and not to leaue the old bonds for many yeares to be vncancelled for it doth oftentimes happen vpon occasion of absence of some of the parties that a new bond is sometimes sealed and the old not taken in which breedeth contention for the new bond being made the old is void and yet may be vncancelled and also put in suit by some executor or administrator ignorant of the other new bond taken for the same and paied long before Albeit herein it seemeth there is more reason not to make new bonds howsoeuer diligent
North Starre Some Merchants are so farre wide from the knowledge of the value of coynes and the Exchanges made thereupon that they are of opinion That there can be no certaine Rate or Par of Exchange set to answere iustly the value of the coynes of forraine parts by reason of the diuersitie and disproportion of the coynes of Gold and Siluer and their intrinsicall and extrinsicall values But these Merchants are to vnderstand that the moneys of all Countreys haue a proportionable valuation relatiue within themselues according to their seuerall standards for weight and finenesse onely the smaller and baser coyne haue some little knowne aduantage which may bee considered of in Exchange Proportionable valuation of moneyes for Exchanges to be made accordingly if there bee cause that the quantitie of those moneys doe exceed the bigger and finer coyne This consideration hath beene had heretofore and especially in the Par agreed vpon between the Low-countreys and this Realme in the yeare 1575 when vpon the Philip Doller the Exchange was at twentie fiue shillings the Par and the small moneys would exceed twentie seuen shillings and vpwards but the quantitie did not surmount the better coyne The like was vpon the Par agreed vpon with the States of the vnited Prouinces Anno 1586 at thirtie three shillings foure pence and with Hamborough and Stoade to twentie foure shillings nine pence Lubish vpon the Rickes Doller of thirtie three shillings or nine markes foure shillings for our pound sterling of twentie shillings making foure Dollers and one halfe to answere the said Par which Doller is inhanced since to fiftie foure shillings and were receiue now but foure Dollers for the same and so for other places accordingly CHAP. III. Of the Denomination of the Imaginarie Moneys of all Places whereupon Exchanges are made by Bills THE Denomination of moneys which wee call Imaginarie is because there is not any peculiar or proper money to be found in Specie wherevpon the Exchanges are grounded as it was in times past in many places where some moneys were the cause to ground the price of Exchange vpon as our Angell Noble being coyned for sixe shillings and eight pence sterling whereupon Exchanges haue beene made as now is done vpon twentie shillings and so might the new peeces of our Soueraigne King Iames Laureat be taken But it is more proper to make Exchanges vpon the siluer coynes for the price of commodities is most ruled thereby in all places which by the quantitie is fiue hundreth to one Hence did proceed the cause that when our Gold in the yeare 1611 The price of Gold not so effectuall as the price of Siluer was aduanced ten in the hundreth aboue the Siluer the prices of commodities did not rise albeit forraine Nations did cause the price of Exchange to fall But if Siluer were inhanced presently the price of commodities would follow as the rule thereof and the price of Exchange would fall more for Exchange will ouerrule both In like manner do we call the moneys of other Countreys wherevpon Exchanges are made to be Imaginarie as the Dollers in Germanie the Crownes in France the Ducats in Italy and other places which by the great diuersitie you may vnderstand as followeth together with The Calculations of Merchants Accounts whereupon their Bookes of Account are kept according to their Imaginarie Moneys Pound Flemish IN Flanders Brabant and most places of the Low-countreys they keepe their Bookes of Account and Reckonings by twentie shillings Flemish euerie shilling twelue deniers or pence which shilling is six styuers In Artois Henalt Pound Tournois and other places by pounds tournois of twentie stiuers or fortie pence Flemish whereof six called guildren or florins make the pound Flemish in all the seuenteene prouinces of the Netherlands Some do reckon by pounds Parasis which are but twentie pence Pound Parasis whereof twelue make the pound Flemish but their accounts as also the reckonings of their Prince or Finances are kept by pounds Tournois which pound they diuide into twentie shillings euery shilling into twelue pence and the like is done by the pound Parasis and these haue also their subdiuisions of Obulus Maille Heller Hallinck Corte Mites Point engeuin Poot and such like copper moneys too tedious to rehearse In Germanie in the yeare 1520 Gold guilder was the gold guilder coyned for a generall coyne and valued in Holland for twentie eight stiuers which is now in specie at double the price neuerthelesse they do continue to buy and sel all that great quantitie of corne which is brought from the East countries Poland and other places by the said gold guilder of twentie eight stiuers Their doller was coyned at sixtie fiue Creutzers since risen to seuentie two Creutzers Creutzers yet their Exchange is made vpon the doller of sixtie fiue Creutzers which is imaginarie At Augusta the Exchange is made vpon the said doller of sixtie fiue Creutzers at three weeks or foureteene daies sight after the bill presented At Frankford they reckon by the guilder of sixtie Creutzers Florins of 60 Creutzers called in Latine Crucigeri being peeces with a Crosse they are Florins and their Exchange is made vpon the doller of sixtie fiue Creutzers payable in the two yearely Faires or Marts the one the weeke before Easter and the other in the beginning of September to continue for all the moneth At Norenborough their Exchang◠〈◊〉 made vpon the said doller of sixtie fiue Creutzers and many times vpon the Florin of sixtie Creutzers which they also diuide into twentie shillings and euerie shilling twelue pence to keepe their accounts by For Bohemia Bohemicos Exchanges are made vpon the doller of twentie and foure Bohemicos At Vienna they reckon by guilders or florins of eight shillings of thirtie pence to the shilling two Heller to the penie and Exchange is made thereupon At Bauiera by guilders of seuen shillings of thirtie pence Diuers guilders for Exchanges and Accounts In Hungarie by guilders of ten shillings of thirtie pence and by florins of twentie shillings and twelue pence to the shilling and Exchanges are made vpon their ducat At Breslo and Leypsich they reckon by markes of thirtie and two grosses of twelue heller to the grosse Markes of 32 grosses and they Exchange by thirtie florins Breslowes to haue at Vienna thirtie and foure florins or at Norenborough thirtie and two florins Pounds of 20 shillings 12 hellers c. At Vlme they reckon by pounds of twentie shillings and twelue heller to the shilling and their Exchange is is made vpon the doller of sixtie creutzers At Colloigne by dollers of seuentie two creutzers for Accounts and Exchanges Pound sterling At Embden they reckon by guilders and Exchange vpon the rickx doller but from London thither and hither vpon the pound sterling of twentie shillings Markes of 16 shillings At Hamborough they account by markes of sixteene shillings
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
rate according to which calculation the said Royall of eight is by vs receiued at fiue shillings and two pence which is but foure shillings 2 ½ pence or thereabouts The difference is fifteene vpon the hundreth in lesse than two moneths time adde hereunto the ten in the hundreth to be had by the said Royalls of eight that the same are better in weight and finenesse than our six pence sterling which is taken to answere the said Royall by a common calculation by reason whereof there will be giuen so much in his maiesties mint or thereabouts that is to say foure shillings and fiue pence or at the least foure shillings and foure pence ½ after the rate of fiue shillings sterling for an ounce of that standard so together is twentie fiue vpon the hundreth benefit A treatise of Free trade 1622. which caused a Merchant aduenturer to set downe in print an interrogation in this manner Who will procure licence in Spaine to bring Realls into England to sell them here at tenne in the hundreth gaine which is lesse than the Exchange from thence will yeeld when he may haue for the same 25 in the 100 in Holland A matter whereby Merchants are easily induced to diuert the said Royalls from the realme to those and other countries and by the common vnderstanding to remedie the same it is thought there is no meanes to meete with forreine nations in the inhancing of moneys but wee must doe the like albeit experience hath shewed long since that this is not effectuall nor any true remedie Now if we will consider things according to the rule aforesaid it will plainely appeare that the said fifteene vpon the hundred gaine more than in England are but imaginarie if the Exchange for moneys were reformed for let fiue of these Royalls of eight bee bought in England for twentie two shillings and be transported into Holland and there buy commodities with the same which is according as the price of them is inhanced for as the money riseth in price so doth the price of commodities it may fall out the said Merchants should become losers by the commodities so that the same cannot be termed Causa mouens But the Spanish Merchants which cause their Royalls to be sent into Holland or Zealand from Spaine or from the Downes relye wholly vpon the Low-Exchange whereby they are inabled to deliuer there their money by Exchange at an vndervalue at thirtie three shillings foure pence Flemish and vnder for our twentie shillings sterling whereby the Kingdome maketh good vnto them the said fifteen vpon the hundreth consisting betweene the price of fortie two stiuers and fiftie one stiuers which is almost eighteene pro hundreth If the Royall went but for fiftie stiuers according to the valuation so that if the Exchange were made accordingly which would be aboue thirtie seuen shillings six pence this gaine would not be at all and moneys would be imported vnto vs and not exported For the rule is infallable A Maxime in Exchanges That when the Exchange answereth the true value of moneys according to their intrinsicke weight and finenesse and their extrinsicke valuation they are neuer exported because the said gaine is answered by Exchange which is the cause of transportation To make this euident in the Rickx Doller which is the maine and most vsuall coyne in Germanie Eastland the Vnited and Reconciled Low-countreys before their late Proclamations and currant in many other Countreys obserue wee that the said Doller was valued at two markes Lubish A shilling Lubish and a stiuer Flemish was all one 1575. euery marke being sixteene shillings Lubish or sixteene stiuers For in the yeare 1575 the said Rickx Doller was still coyned in the Empire for thirtie two shillings or stiuers and so currant by valuation in the Low-countreys whereby they were all one in denomination and effect But the wars in the Low-countreys hath beene the cause of the inhancing of this Doller which was brought to thirtie fiue stiuers and in the yeare 1586 to fortie fiue stiuers or to fiftie two stiuers now by intermissiue valuations and times Howbeit at Hamborough Stoade and other places in Germanie the said Doller did remaine still at thirtie two shillings Lubish or two markes and as the said Doller did inhance in price so did they in the Low-countreys coyne new stiuers accordingly sometimes lighter in weight A great Fallacie and at other times imbased by Copper or Allay and yet in account the stiuer did and doth remaine the ground of all their moneys but the said Doller holdeth his standard agreeable to the first Doller called the Burgundian Doller with Saint Andrewes Crosse coyned in the yeare 1567 which is in finenesse ten ounces twelue pennie weight of fine Siluer and foure and one halfe of these Dollers were made equiuolent to our twentie shillings sterling as a publike measure betweene vs and the Low-countreys Germanie and other places where this Doller went currant as you may obserue in the precedent Chapters These Dollers haue since beene imitated and made by the States of the Vnited Prouinces in their seuerall Mints altering onely the Armes of the seuerall Prouinces as also by the Arch-Duke Albertus in the reconciled Low Prouinces and the price of them at Hamborough Stoad and other places was but aduanced to one stiuer or shilling Lubish more that is to say at thirtie three shillings Lubish went the same went in the Low-countreys for fortie fiue stiuers which made the diuersitie of the said Par of Exchanges of thirtie three shillings foure pence for the Low-countreys and twentie foure shillings nine pence for Hamborough In the Netherlands being all one in substance This Doller is since that time as I said inhaunced to fiftie two stiuers in the Low-countreys which maketh the price of Exchange aboue thirtie eight shillings or rather thirtie nine shillings and shall the Kingdome suffer this and not alter our price of Exchange accordingly but be contented to take thirtie foure or thirtie fiue shillings and after that rate vndersell all the commodities of the Realme In Germanie This Doller is likewise since that time more inhaunced in Germanie from time to time And leauing the excessiue valuation in remote places let vs note the valuation of Hamborough where it hath beene at fiftie foure stiuers the Doller which maketh the Exchange aboue fortie shillings of their money for our twentie shillings And although we haue raised our price of Exchange from twentie shillings nine pence to thirtie fiue shillings and thereabouts shall we rest here and goe no further Haue we reason to doe it in part and not in the whole according to Iustice Equitie and true Policie and shall we be like a man that by halting in jeast became lame in earnest Absic ignorantia The moneys in Christendome which haue their ebbing and flowing doe shew their operation vpon commodities The course of money and Exchange are contraties in operation maketh by
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
all remedie against his estate for euer The consideration hereof maketh the debtor to retaine in his hands what they can to maintaine themselues their wiues and children and to keepe them from perishing which maketh also against the crditors profit The bodie of euerie subiect belongeth to the king To the preiudice of the king and common-wealth and euerie subiect is a member or single part of the bodie of the common-wealth so that to take this bodie and to cast the same into prison for debt where he must lie rotting idlely and vnprofitably all the daies of his life and die miserably is no other than to strip and rob the king and common-wealth of their limbes and members and consequently of the seruices and endeauours of a great number of subiects yearely of all degrees and professions to do seruice to the king and common-wealth which number of prisoners exceedeth all the prisoners in all other countries It is therefore in christian Charity wished and in all Godly Policie desired That the bodies and endeauours of all debtors may be free from imprisonment and the creditors recouerie be made against the debtors lands and goods according to the ancient fundamentall Laws of this Kingdome being most consonant to the Law of God to christian Charitie to the rule of Iustice and to godly Policie as aforesaid And that Interim the releife of prisoners may be permitted which the late Queene Elizabeth granted for her and her Successors in the 28. yeare of her Raigne by a large Commission recorded in the high court of Chancerie the exemplification whereof was by all prisoners for debt humbly desired Many other reasons are alledged in the said remonstrance inuectiue against vsurie and vsurors which I haue omitted and hereunto let vs adde certaine obseruations in generall concerning executions The Law is said to be a mute Magistrate but the Magistrates are a liuing Law THe strength of the Law is in commanding and the strength of commanding is in the constraining or executing of the Law which belongeth vnto Iudges and Magistrates The consideration hereof did produce a diuersitie of opinions whether Iudges or Magistrates ought to be for a time or terme of life the often changing of them being according to the custome of the Romans who did instigate men to accuse those that had not discharged the place of their office duely Customs of the Romans about execuâ—ion of lawes whereby wickednesse was not onely punished but also euerie man through emulation did endeauor himselfe to follow vertue and to discharge the place of his calling Besides whereas vertue in all common-weales is the principall point whereat men aime and whereunto the Law doth bind them So the distribution of offices is a reward of vertue which cannot be done to many when they are giuen in perpetuity to some few which many times hath beene the cause of sedition by the inequall distributions of rewards and punishments in some Common-weales Inconueniences of yearely officers True it is that there are many inconueniences if the officers be but for one yeare or a short time to the hinderance of the publike good for they must leaue their place before they know the duty of it and commonly vnto one that is but a nouice in the place whereby the affaires of the Common-wealth fall into the Gouernement of such as are incapable thereof and without experience And if they be fit for the place their time is short that it doth vanish away in feasts and pleasures and matters either publike or priuate doe remaine vndecided and euerie thing protracted without due administration of justice besides how is it in common sence and reason possible that he should command with the effectuall power of a Magistrate that within a little while is as it were a cipher without power or authoritie what subiect will yeeld him due respect and reuerence whereas on the contrarie it his office be perpetuall and his estate assured he is resolued boldly to resist the wicked to defend the good Commodities had by Iudges permanent to reuenge the iniuries of the oppressed and euen to withstand tyrants who manie times haue beene astonished to see the constancie of the Iudges and Magistrates in the execution of justice according to the law and herein is the common law excellent because the Iudges and Magistrates are authorised accordingly for terme of life as the dignitie of the place requireth and are also chosen with great solemnitie in regard of their integritie knowledge and experience in the lawes whereof they are the ornaments whereas to call the yearely Iudges in question after their time expired is a derogation and dishonour to the lawes in other countries The Sherifes and many other Officers which put in euery countie the writs commandments Subalâ—erne Officers annuall and iudgements of the courts in execution are remoued euerie yeare and the same being expired they may be called to account to answere for any misdemeanors committed by them during their office by the ordinarie course of the law which maketh them vigilant and circumspect in the execution of their places which they supplie either personally or by deputies for whose offence they must answere This authoritie and seueritie of the Iudges therefore doth preuent manie mischiefes putting a feare in the hearts of the offendors of the law by the rigour thereof which in criminall cases is called by some crueltie But the mercifull Iudge is more to be blamed in these cases than the seuere because seueritie maketh men to be obedient vnto the lawes whereas too much lenitie causeth contempt both of Lawes and Magistrates Neuerthelesse as there is in all common-weales two principall points which the Magistrates are to consider namely Law and Equitie so the execution of law is to be considered by the Magistrate who sometimes being too seuere may do more hurt to the common-wealth than good seing the intention of those that made the law Lawes intention is the common good was to prouide for the good of the common-wealth Salus populi suprema lex esto This may be said especially in regard of the statute Lawes whereof we haue the example of Empson and Dudley fresh in memorie who being priuie Councellors to king Henrie 7 caused the penall lawes to be strictly executed against his subiects whereby the king gathered much treasure with the losse of the loue of his subiects which was much displeasing vnto him as the Chronicles of this realme haue recorded Because there is nothing so effectuall to cause the prince to be called a tyrant than this course of strict execution of lawes which hath an affinitie with the saying of Nicholas Machiauell sometimes Secretarie to the great Duke of Tuscanie touching the condition of men in generall It is miserable that we cannot do all things The saying of Machiauell More miserable to do that which we would do and most miserable to do that which we can do Informers neuerthelesse are necessarie members in
peace another Register for the true knowledge of captaines and masters of ships and their returne a third Register for the names of Merchants passengers and owners which the master ought to deliuer vp to haue them inrolled and all pilots names although recorded in the office called the Trinitie house ought to be set downe and knowne to the Admirals clerke also all moneys deliuered vpon hazzard or bottomarie as is heretofore declared called foenus nauticum or pecunia traiectitia Now the manner of proceeding in seafaring causes The manner of proceeding is according to the lawes aforesaid or the customes written and if the debate or cause cannot be determined thereby the last refuge is according to the opinion of skilfull and vpright men in their owne trading but all this must be done as the law saieth Velo leuato so briefely and summarily without the solemnitie of other ordinarie courts and iudgements onely looking to God and the trueth and all complaints to be ended instantly especially of ship-wrecke for it were a crueltie to vexe so miserable persons with tedious proceedings whereupon in this case the Iudges may proceede to execution vpon euerie interlocutorie and make restitution presently vpon good caution to be giuen to satisfie the appellation if any be made And herein there is a further priuiledge to them for whereas by the common rules of the law where no litiscontestation is past or as we say bill and answere depending no witnesse should be receiued nisi ad eternam rei memoriam Extraordinary priuiledge ac aduersario ad id citato yet in shipwrecke as a case to bee commiserated any of the ship-broken-men may come to the Iudge of that part where the wrecke happens and by witnesse brought with him may make proofe And as this is an extraordinarie priuiledge euen so may merchants ordinarily and masters sailing together beare witnesse each one to other of their societie within the ship if they haue neither to lose or gaine therby and especially mariners for or against the master when the voiage is ended Ordinarie priuiledge and they free of his commandement For by the consent of the doctors when trueth cannot be otherwise tried then vnable persons may be heard And to the end that trade be not interrupted by vexation of quarrelsome persons it is prouided that not onely the common caution Iudicio sisti iudicatum solui be kept on the part of the defendant but also that the plaintife or pursuer shall find caution de expensis soluendis if he faile in proofe Likewise if the partie do not appeare to defend himselfe or his ship after three citations or foure at the most called quatuor defaltae hee is taken for contemptuous the Iudge may ordaine the Marshall or Officer to put the plaintife in possession by his sentence or Primum Decretum Prouided that if the partie appeare within the yeare and pay the costs and expences he shall be admitted and heard vpon the proprietie and in like manner if any attachment be made vpon the ship or goods it shall vpon caution giuen summarily be heard and determined for this law of Admiraltie intendeth nothing but expedition for the better aduancement of Trafficke and Commerce * ⎠* CHAP. XV. Of Arbitrators and their Awards THE second meane or rather ordinarie course to end the questions and controuersies arising betweene Merchants is by way of Arbitrement when both parties do◠make choise of honest men to end their causes which is voluntarie and in their owne power and therefore called Arbitrium or free will whence the name Arbitrator is deriued and these men by some called Good men giue their judgements by awards according to Equitie and Conscience obseruing the Custome of Merchants and ought to be void of all partialitie or affection more nor lesse to the one than to the other hauing onely care that right may take place according to the truth and that the difference may bee ended with breuitie and expedition insomuch that he may not be called an Arbitrator who to please his friend maketh delayes and propagateth their differences but he is rather a disturber and an enemie to Iustice and Truth and therefore the manner to elect Arbitrators The manner to choose Arbitrators is worthy the obseruation Some are contented to name foure or sixe persons on either side in writing and referre the naming or electing of foure out of them by reciprocall proceeding when one named the first person another the second and then againe the third and the other the fourth person Others putting seuerall names in a paper are contented that a meere stranger shall vpon the backside of the paper pricke their names with a pinne or that as they are numbred the dyce shall bee cast vpon them accordingly by the number Others put their names in seuerall papers and cause them to bee mingled and drawne by way of lot by an indifferent person which course may be thought allowable as we haue noted in the Chapter of the diuiding of commodities by lots Others will doe the same by nomination of them and drawing of the longest or shortest straw or by any other extraordinarie meanes of pointing numbring or describing all tending to one end to haue indifferencie and that partialitie may be auoided by all meanes Consideration must be had also whether two three or all foure shall haue authoritie to determine the cause Awards are to be giuen vnder hands and seales if they can to bee done within a limitted time wherein their award is to be deliuered vp and whether they may name an vmpire or not all which must be declared in the Bond of Compromise vnlesse the question be onely vpon one point to be determined wherein no Bond is needfull but by way of assumpsit by deliuering a peece of coyne each to other and thereby binding themselues reciprocally vpon the penaltie of a summe of money to stand to the iudgement it is ended And the said penaltie or forfeiture by assumpsit may be recouered by Law and the Merchants Courts as well as the forfeitures vpon Bonds if the partie doe not performe the sentence or award if the award be lawfully made Fiue points to be obserued in awards to which end Arbitrators are to take notice of the fiue points following which by the Law doe make void all awards 1 That the award be giuen vp in writing within the time limited by the bonds of Compromise made betweene the parties 2 That there bee limited or appointed by the award some reciprocall act to be done by each partie to other which the Law requireth to be Quid pro qu◠albeit neuer so small 3 That they make a finall end and doe determine vpon all the points or differences produced before them by specification or otherwise if they be required so to doe and authorised thereunto 4 That they doe not award any of the parties to doe or performe any vnlawfull act or thing prohibited and
any thing in question where there wanteth proofe or they may minister the said oath to either partie vpon pregnant occasions to boult out the truth the like authoritie haue the Prior and Consulls of Merchants And moreouer their authoritie doth farre exceed the power of Commissioners for as Arbitrators haue a determinate power to make an end of controuersies in generall termes without declaration of particulars so hath the Prior and Consulls power to doe the like whereas Commissioners are to giue a reason and declaration of their proceedings to the Lord Chancellor Finally the Arbitrators authoritie implyeth a voluntarie command proceeding from both parties which the Commissioners haue not but the Merchants Court hath CHAP. XVI Of the Merchants Courts or office of Prior and Consuls THe third meane to end and determine Merchants questions and controuersies happening in the course of trafficke is the Courts of Merchants called Prior and Consulls or Il consolato as the Italians haue called the same And here we may say a Merchant is in loco propriâ— as the fish in the water where he vnderstandeth himselfe by the custome of Merchants according to which they are determined and if he do not yet as euerie man is taken to be wise in his profession so may he be admitted to vnderstand them the rather when he shall truely peruse and ponder the contents of this Booke which in my loue to Merchants I haue compiled as aforesaid The Ciuilians hauing considered of this Office of Prior and Consulls established in many places of France Italie and Germanie Wherin Prior and Consulls haue no power haue made diuers questions of their authorities saying they cannot decree any thing contrarie to the law of the land as that the father shall be bound for the sonne or the sonne for the father or any thing that is malum in se or naturally vniust or against the publicke good or that which sauoureth of a Monopolie neither may they forbid any man to go to law or order that a worke begun by one shall not be ended by another without the others consent neither are they to deale or to determine of any thing but what concerneth merchandising for other things as the selling of houses lands and the like doe not appertaine vnto them True it is that all matters criminall or offensiue do not belong vnto them to deale in for there the Kings Atturney is a partie and hath interest therein as falsifying of obligations and bills of debt or other writings matters of reproach or discrediting of persons theft and other euill vnlawfull behauiour done and committed by their said seruants or themselues or any other Merchant Factors or intermedlers in causes of merchandise as also all others not exercising the trade of merchandise are forbidden to be dealt with by the said Prior and Consuls neither are they to deale with the contracts of Vsurie either fained or otherwise vnlawfull nor with the Wills and Testaments or contract of marriages of any persons or with the interchanging of goods by consent and all other such like contracts but onely in all ciuile causes of merchandising How be it these questionable matters are not of that moment to be discussed considering that their authoritie is declared and confined by the Charters and Priuiledges made vnto them by Princes and Common-weales whereunto relation is to be had and accordingly they are to proceed hauing a respect to the equitie of the cause Hereupon Benvenuto Straccha the Ciuilian maketh a treatise Quomodo procedendum sit in causis Mercatorum of the manner to proceed in Merchants affaires wherein are many vniuersall things propounded which are easier but particular things are commonly more truer by his owne obseruation The decrees of Merchants need no other confirmation and he concludeth that the decrees of Merchants need no other confirmation or approbation The oath taken by the said Prior and Consuls to obserue the Law-Merchant is subiect to punishment if they be perfidious or forsworn as well as the oath of all other Iudges And writing de Consulibus Mercatorum he saieth That a Merchant may call in question and begin his plea before them although it be against one that is no Merchant if the cause concerne merchandising and the plaintife herein bindeth the defendant to be iudged by the said Prior and Consulls be he either a Knight or Ecclesiasticall person or a stranger not resident in the place In the like maner all Bankers Shop-keepers in faires and markets are bound to their iurisdiction for matter of money and Exchanges or for merchandise The plaintife may in other places where the defendant doth deale or negotiate be at his choice to begin or commence his suit where he will but not in two places at one time for one cause wherein sometimes the penaltie is by him respected to be far greater in one place than in another Here let vs remember the controuersie betweene two brothers which was aboue fortie-yeares since called Ioan de la failia and Iaques de la failia who went to law in Brabant for manie thousand pounds and afterwards one of them did commence suit in Flanders being another iurisdiction whereupon he was compelled to pay a forfeiture of 4000 ll A foâ—feiture for a iurisdiction for in trueth good orders and customes are to be maintained as lawes and nothing is to be admitted that may infringe the Law of Merchants The proceedings before the said Prior and Consulls is by Libell or Petition or by Declaration wherein let vs note the difference set downe by the said Ciuilians Difference betweene a Petition and a Declaration The Libell or Declaration is to be made with all the forme vsed in law as well for the matter of fact as the matter of law But in a Petition the forme is not needfull so the substance of the matter be well expressed especially the summe which is demanded or the goods being lent or vniustly detained must be specified and if it be for money owing for merchandises or lent it must be declared otherwise the Consuls will reiect the Petition as impertinent albeit some triuiall errors in Petitions are to be tollerated and the partie is to be by the Merchants Law relieued They are to proceed summarily in all their actions Summarie proceeding to auoid interruption of trafficke and commerce and they are to respect plaine and sincere dealings amongst Merchants with a consideration to construe all things to be done bona fide so that trust may be preserued amongst them debarring as much as in them lyeth the exceptions of Prescription Excussion and of promises made without consideration quod nudo pacto promisisti and the like in so much that many times a woman is admitted to be a procuratrix contrarie to the Ciuile Law A custome contrarie to the ciuile law and all other exceptions vpon plaine bills and obligations are set a part and the trueth is hunted after and all exceptions proceeding of Iustice and
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
salt Francis the first made the same perpetuall as the domaines of the crowne and all men are compelled to buy it at the Magazins vpon paine of punishment This impost is letten to farme for two millions of crownes or six hundred thousand pound sterling yearely The right of the sea belongeth to the King and he may lay impositions thirtie leagues from the land into the sea if no other soueraign prince be not within that precinct There are eight courts of Parlement in France and eight chambers of account At Paris erected 1302 by Philip le Bell. At Paris Courts of parlements At Tholouze also and confirmed by Charles the 7. In Britaigne At Grenoble 1453 by Lewis the 11. At Dion Courts of accounts At Bourdeaux 1462 by Lewis the 11. At Monpellier At Aix 1501 by Lewis the 12. In Dolphine At Dion 1476 by Lewis the 11 for Burgondie In Prouence At Roan 1449 by Lewis the 12 for Normandie At Blois At Rheames 1553 by H. the 2 for Britainie At Roan Of the Salique Law of France IT is an vsuall receiued opinion that Pharamond was the author of this law others thinke it was so called of the Gaules that were called Salie amongst whom that law was established for the auncient Gaules termed all their lawes either Ripuarie or Salique and in the time of Charlemaine they were called Saliques Neuerthelesse it is thought to haue beene inuented of latter time as by Philip le Long to frustrate the daughters of Lewis Huttin or else to haue had the first strength from an vsuall custome of all Barbarians which was neuer to suffer the females to inherit the crowne and so being begun in the first and second line of the kings it hath continued in the third and by custome it is rather confirmed than to be proued to be a law at any time ordained hauing beene little account made thereof vntill the controuersies betweene Philip le Long and Endes duke of Burgondie who claimed it for his neece Iane daughter to Lewis Huttin and Philip de Valois with Edward king of England The booke of the Salique lawes is but a collection howbeit there is no example euer heard of that any woman gouerned Of the lawes of the higher and low Germanie concurring with the Ciuile Law and the Courts of Equitie in substance THe courts of Equitie beyond the seas after bill and answere replication and reioynder and sometimes duplication and at last conclusion with the examination of witnesses in serious manner The whole proceedings are deliuered to certaine Doctors or learned men which are as masters of the Chancerie or belonging to certaine Vniuersities to be abreuiated which is called ad rotulandum who doe cut off all superfluous things which vpon the matter are confessed on both sides To abreuiate long processe or are not materiall to the state of the cause to bring the differences betweene the parties to certaine points or heads wherupon the said parties with the aduice of the aduocates or learned counsell do dispute and debate the said differences to bring them as it were ripe and perfected before the Iudge For if the defendant will take couertly any exceptions against the Iudge of that iurisdiction he may haue the whole processe made vp in the name of A.B. and C.D. as it were complainant and defendant without naming either of the parties and the same to be sent vnder the towne seale vnto Doctors or other learned men of Vniuersities elected thereunto in other iurisdictions which do giue their sentence or iudgement thereupon and returne the same back againe vnder seale before the Iudge where the cause was depending who calling both parties before him demandeth of them whether he shal open the proces and whether they will stand to the iudgement therein contained and if the complainant descend thereunto then is the defendant thereby concluded seeing he had his choice and did in a maner appeale from the Iudge whereupon execution is presently had and matters are ended with expedition By the premisses we may obserue how other lawes are variable and subiect to alteration and that the Law-Merchant is constant and permanent in her customes which therefore are not to be infringed but seriously to be maintained by all the foure precedent meanes or some selected course of execution to be deuised concurring with the same For the better furtherance wherof and more exact explanation by contraries I haue for a Corrollarie of this worke added hereunto three Paradoxes alluding to the said three Essentiall parts of Trafficke which will illustrate the most materiall consideration to be had in the course of Trafficke and Trade CHAP. XVIII Three Paradoxes alluding to the three Essentiall parts of Trafficke HAuing heretofore published a Treatise intituled Englands view in the vnmasking of two Paradoxes which had beene presented vnto the French King Henrie the fourth as a matter of great consequence and considerable in the gouernement of common-weales and finding that the true vnderstanding of them with a third Paradox obserued by me did properly allude to the contents of this booke or the three Essentiall parts of Trafficke namely Commodities Money and Exchange for Money I did resolue to handle the substance of them for a Corrollarie of the same Paradox what it is the rather because Paradoxes are things contrarie to the vulgar opinion and will also make all the premisses more manifest and apparant by their conclusion The said two Paradoxes presented by Monsieur Malestroit one of the officers of the Finances or Treasurie in France were as followeth saying 1 That to complaine of the generall dearth of all things in France was without cause Commodities for there was nothing growne deere these three hundreth yeares 2 That there is much to be lost vpon a crowne Money and or any other money of gold and siluer albeit one do giue the same in payment at the price he did receiue the same The third Paradox which I haue added hereunto is 3 That the imaginarie moneys supposed in Exchanges for money Exchange made by Bills of Exchanges do ouerrule the course and propertie of Reall and Substantiall moneys in specie Monsieur Malestroit saith that since the ancient permutation hath beene changed in buying and selling and that the first riches of men which consisted of cattell was transferred to the gold and siluer whereby all things haue receiued their estimation Gold and Siluer are the Iudges of good cheape or dearth it followeth that those mettalls are the right judges of good cheape or dearth of all things Wee cannot say that any thing is deerer than it was three hundred yeares ago vnlesse that for the buying thereof wee must now giue more Gold and Siluer than wee did then But for the buying of all things wee doe not giue now more Gold or Siluer than wee did then therefore saieth he nothing is growne deerer in France since that time To proue this he doth alledge That during the raigne of
which they doe affect Plato saith That it is a generall rule in State matters That Princes doe not only giue Lawes vnto their subiects but also by their example they do change the manners of men The example of Princes doth change the manners of men to which purpose hee doth vse the example of their King Francis the first who being hurt in the head caused his haire to bee cut off wherein the people did presently imitate him We haue seen saith he three great Princes striuing as it were who should haue the most learned men and best artificers namely the said great King Francis the first Henrie the 8 King of England and Pope Paul the third insomuch that the King of England could neuer haue the learned and reuerend Beda and the French King did pay seuentie two thousand Crownes for a Diamond rather than King Henrie should haue had it Hereupon presently the people did giue themselues to studie and to buy precious stones when the Nobilitie did imitate the King and when the King gaue ouer the same the price of them was much abated If any man should here obiect saith Monsieur Bodin that if things should still become deerer partly through the waste and partly for the aboundance of gold and siluer no man should be able to liue because of the dearth of things It is true but the warres and calamities happening to a Common-wealth doe stay the course of it as wee may note that the Romanes haue liued with scarsitie and to speake properly in want and miserie almost fiue hundreth yeares when they had but copper moneys of a pound weight Copper moneys of one pound weight and without stampe for their gold and siluer came vnto them in one hundreth and twentie yeares by the spoile of all the world which was brought to Rome by the Scipions Paul Emilyus Marius Sylla Lucullus Pompey and Caesar especially by the two last for Pompey did conquer so much land Great wealth of the Romanes as made the reuenue of the Empire to bee eight millions and a halfe of Crownes Caesar notwithstanding all his prodigalities brought to the treasurie fortie millions of Crownes hauing giuen at one time vnto Paul Consull 900 thousand Crownes to hold silence and vnto Curion Tribune 1500 thousand Crownes to take his part Marke Anthonie went further as Plutarch and Appian haue written for he gaue vnto his armie for their seruice done 200 thousand Talents being 120 millions of Crownes so did Adrian the Emperour to haue the good will of fortie Legions giue ten millions whereby appeareth great aboundance of gold and siluer to haue been at Rome but it did not last euer for in lesse than three hundreth years the Parths Goths Hercules Hongres and other cruell Nations did ouercome the Empire and all Italy and ouercame the Romanes burned their Citie and tooke the spoile of them The like doth happen vnto all Common-weales to waxe and increase by little and little and to flourish for a time in wealth and power The propertie of Common-weales and afterwards to grow old and decline vntill they bee vtterly ruinated and destroyed Touching the last cause of the dearth of things by the alteration of money hee sheweth how Monsieur Malestroit hath mistaken the matter in the monies themselues made within three hundreth yeares For whereas he saith That Saint Lewis caused the first sols to be coyned worth twelue deniers whereof sixtie foure peeces went to the marke weight of eight ounces and that in Philip de Valois his time the Crowne of the Flower de Luce without number and as good as the Crownes now was valued but at twentie sols and that afterwardes King Iohn caused the Frankes to be made of sine gold which were but valued twentie sols and that the sols of siluer was worth fiue of our sols he doth not say of what weight and finenesse the moneys were in those dayes and in conclusion hee saith That the price of things is not altered by the Valuation of moneys But if Monsieur Bodine according to his wisedome and deepe iudgement in other matters had duely considered of these two Paradoxes hee would haue made a direct answere thereunto before he would haue proceeded in his former discourse The first Paradox being considered with the second will shew a manifest contradiction or contrarietie The contratierie of the Paradoxes for the first doth consist in giuing of more gold and siluer for commodities now than in times past which hee denieth and the second in receiuing lesse commodities for the gold and siluer now than in times past which hee affirmeth which both wayes is to bee taken in nature of commutation Now if wee doe not giue more quantitie of gold and siluer for commodities than in times past how can we receiue lesse commodities for the gold and siluer and thereby receiue a losse as in the second Paradox is alleaged Againe if we doe receiue lesse quantitie of commodities for gold and siluer than in times past according to the second Paradox whereby we sustaine a losse how can the first Paradox bee true That nothing is growne deere for that wee giue no more quantitie of gold and siluer than in times past commodities and moneys lying by this comparison in an equall ballance But let vs admit that Monsieur Malestroit had an intention which hee might haue expressed in few words if hee had the true ground and vnderstood the matter hee went about by proouing onely that when moneys doe alter in weight or in finenesse or in valuation Causes of the denomination of moneys c. or in all three the price of things doth alter onely by denomination if the valuation bee made accordingly yet Monsieur Bodine had not made a good interpretation of the said Paradoxes and mistooke the true ground of the matter in question touching the prices of commodities which hee compared within themselues in the Realme of France whereas the comparison ought to bee of the inhauncing of the price of the commodities of one countrey with the price of the commodities of other countreys and thereby find out whether things are growne deere with vs or with them in effect So that they both mistaking their grounds we haue shewed in the said Treatise That they hauing lost Ariadne her line wherewith they entred into the laborinth of moneys and their properties before declared are like vnto a man who hauing lost his way amongst the woods the further hee goeth the more hee erreth from the right way To intreate therefore of commodities and money in the course of trafficke betweene Kingdomes and Common-weales is not sufficient but the exchange of moneys being the publike measure betweene them must bee regarded as the principall and ouerruling part thereof For if a man should frame a silogisme in manner following he shall find the same full of fallacies and misprision nay a verie Dilemma Nothing causeth Merchants to export more money out of the Realme than they bring
in but onely the bringing in of more commodities into the Realme than they carried out The vnderualuation of our moneys causeth no more commodities to be brought into the Realme than is carried out The maintenance of Free Trade Ergo The vnderualuation of our moneys causeth not more money to be carried out of the Realme than is brought in as is declared in our last Treatise to hinder the inhauncing of our moneys which by the Treatise of free Trade lately published was insisted vpon We do also find that in the yeare 1577 Monsieur Garrault one of the French Kings Councell did exhibit two Paradoxes concerning moneys which may in regard of the former seeme more paradoxicall or strange nor only to the vulgar opinion but also to the iudgement of the wiser The first is an assertion That moneys haue not changed their values The other That by the inhancing of the coine or the price of moneys To other Paradoxes the price of commodities becommeth abated and good cheape and that by the reduction and abatement of moneys euerie thing becommeth deerer And for as much saieth he that the matter of money is full of probleames and may be disputed on both parts his desire is that some gentle spirit might be stirred vp to discourse of the reasons which may be alledged Touching the first That the value of moneys is not changed omitting to speake of the Cicle of the Hebrews the Staters of the Persians and Greeks the As or Denier of the Romans he saieth That K. Lewis 11 did reduce the disorder of moneys vnto their former estate of K. saint Lewis when the Denier of gold was esteemed in weight vnto 12 deniers of siluer which is properly to be called the proportion between the gold siluer heretofore noted and hereupon he sheweth how the said proportion hath bin altered yet so that the siluer was alwaies made correspondent to the gold and when the gold either in the marke weight of 8 ounces was inhanced consequently in the peeces or coines the siluer was likewise inhanced proportionably obseruing the said 12 to 1 or sometimes thereabouts either a little ouer or vnder and this caused him to say That moneys had not changed their values it being only a comparison made betweene the gold siluer which is by weight and not by valuation to be applied vnto euery peece of coyne especially to the French crowne of the flouredeluce or sunne and the piece of siluer called Douzaine alluding to the said 11 to 1 and the application thereof vnto the price of commodities is more absurd The weight of 12 of siluer to 1 of gold maketh not the valuation of the mark weight of gold and siluer much lesse the valuation of the pieces coyned of the said marke whereby we see how one distinction is able to dispell and disperse the foggie mysteries of deceitfull fallacies as thâ— Sunne driues away the winde and the clouds heretofore by me obserued Concerning the second Paradox he saith That many are of opinion that the inhancing and augmentation of the price of moneys engendreth a deerenes of all things quia suâ— praeciarerum And that euen as pro imminutione quae in aestimatione solidi forte tractatur omnium quoque praecia rerum decrescere oportet pari ratione si quod tractatur incrementum quoque praecia rerum crescere debent Which opinion saieth he is grounded vpon the polliticke rule That the value of moneys giueth estimation vnto all things which is not ordinarily obserued for Princes and Magistrates are manie times constrained to endure the incommodities of the time by their prudence and vnderstanding so that all lawes are not obserued by consequence following each other whereby it commeth to passe that the price of wares followeth not the price of moneys but the common custome for money was made to no other end but to maintaine and continue the trade of merchandise by meanes whereof the commodities and necessaries are brought from one place to another to auoid the ancient painefull and troublesome permutation which trafficke is two-fold namely within the realme and in forreine countries within the realme the money is more commodious than necessarie but for the straunger most necessarie and therefore must be of a fine substance as Gold and Siluer to bee inclosed in a small roome to transport great matters from one place vnto another And if wee will meerely consider of this substance and effect of strange negotiation wee shall finde nothing but a masked permutation of one thing for some certaine quantitie or weight of Gold or Siluer for hee that trafficketh in forreine countries hath not such regard to the value imposed vpon money as to the intrinsique goodnes which giueth the value A good obseruation to be had by Mer-chants and hath the same function in other places according to which inward goodnesse hee setteth a price vnto his commodities to make thereof the like quantitie of Gold or Siluer as he hath laied out ouer and aboue his charges and profit so that the moneys remaining stable and firme the price of Wares and Merchandises remaineth certaine without any augmentation to shew that there is no inhauncing of the price because of the augmentation of the price of moneys which will make vs hereafter to see the good cheapenesse of all things as he saieth for he that causeth some forreine commodities to come within the realme knowing the alteration of the price of moneys according to the vnbridled will of the people will make the price of his commodities accordingly And this the said Monsieur Garrault doth declare by examples of veluets and other commodities and therefore he is of opinion that moneys inhaunced should be reduced againe to their price and that all debts made before that time should be satisfied à lequipollent according to the rate vt pecuniarum vna â—adem sit semper potestas perpetua estimatione difficultatibus permutationum aequalitate quantitatis subueniat c. The power of money transferred to the Exchange of money Many other reasons concurring with the former are by him alledged which I omit because the whole foundation of the said Paradox is meerely an abuse of the people as himselfe hath noted admitting also the transportation of money and finally confessing the inhancing of the price of moneys and consequently the sale of commodities accordingly All which is farre from the present course of trafficke when the course of exchange is not considered withall as shall be declared True it is as the Ciuilians say concerning contracts of commodities sold before the inhauncing of moneys that valor monetae considerandus inspiciendus est à tempore contractus non antem à tempore solutionis but this not being obserued was the cause that many Merchants do agree to pay for commodities in currant money for merchandise others that sell commodities agree to be paied in species of so many ducats dollers French crowns or other