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
shillings or seuentie two pence and 72 ½ pence for the said French Crowne in Exchange when the Crowne in specie is paied him in France for seuentie fiue soulz The like consideration are we to haue of the Dollers of Germanie of the Polish Guilders or Florins and all other coynes inhaunced aboue the Par of Exchanges heretofore calculated amongst Merchants and especially with the admittance of Princes The operation heereof in the course of trafficke is of verie great moment more than in times past when the difference was not so sensible which made me to compare the same vnto the serpent Aspis which stingeth men in such sort that they fall into a pleasant sleepe vntill they die which is meant by particular persons whose estate is consumed by running vpon Exchanges Or like vnto the crueltie of the Planet Saturne which maketh his spherecall course in thirtie yeares with great operation although wee doe not so sensibly perceiue his motion which is meant in the reuolution of State affaires in progresse and continuance of time CHAP. XI Of Attachments and Arrest THE Common Law of England doth not vse the course of Attachments as is vsed by the Custome of the Citie of London which was borrowed from Merchants actions obserued in forraine Countreys and was thereupon by Custome here established it being a readie way whereby men may secure themselues of present meanes if they doubt of their debtor For if the creditor do know any debts or goods belonging vnto his debtor he may instantly vpon a specialtie to be exhibited vnto the Magistrate haue authoritie to attach the said debts and goods in the hands of any person where he findeth the same onely Priuiledged places excepted or Ecclesiasticall persons in most places To this Attachment if the partie doe appeare and put in baile either by himselfe or his Atturney then the Attachment is ipso facto void and declaration being put in dependeth in Court vpon the said baile and if no declaration bee put in the next Court day or within three dayes then the said baile is likewise discharged by the said Custome albeit this is not so duely obserued as the Customarie Law of Merchants requireth But if the partie doe not appeare and the Attachment doe proceed three Court dayes or three defaults to be entred then for the fourth default judgement or sentence is giuen that hee who did make the Attachment shall recouer the said debt and goods and take the same into his owne possession vpon good sureties to be put into the Court to answere the value thereof within one yeare and a day in which time the proprietarie may disreason the said recouerie by disprouing the other parties surmises or allegations prouing that the specialtie was paied whereupon the Attachment was grounded For the Attachments beyond the Seas cannot be made vpon any pretended Action but must bee done vpon a Bill of debt and many times the Magistrates will sequester the goods or debts into their owne hands to auoid incertainties of honest dealings Besides Merchants will be aduised before they make Attachments because both the Ciuile Law and Customes of Merchants doe impose great damages vpon the partie if hee haue made his Attachment without iust cause to the ouerthrow of the other parties credit And moreouer if it be vpon debts appearing by specialties or Bills Obligatorie it may fall out that the said debts are transferred or set ouer vnto other Merchants according to the Custome heretofore mentioned whereby the propertie is altered I remember a case of mine owne that happened aboue twentie yeares since which concurreth with the matter in hand A Merchant being indebted vnto me by a Bill Obligatorie the summe of 800 ll payable at six moneths was perswaded by a friend of his with whom I had some differences and controuersies of accounts to suffer an Attachment to be made in his hands of the said moneys by the Custome of London vpon promise made vnto him That he would giue him long dayes of payment for the said moneys whereupon my Debtor appeareth to the said Attachment and did acknowledge the said debt of 800 ll relying vpon the long dayes of paiment and he that made the Attachment did proceed in the Law and had judgement thereupon making no doubt to obtaine execution accordingly Being aduised by learned councell in London Attachments to be remoued after judgements wee suffered him so farre to proceed and then we did speake in Arrest of execution and brought a Writ of Certiorare out of the Kings Bench vnder the hand of the Lord Chiefe Iustice putting in speciall baile in London to satisfie the judgement The record was remoued to the said Court of Kings Bench and there wee did put in other baile and vpon that brought a Supersedias into London and discharged our especiall baile and by the Law the said Attachment and all proceedings were made void and this Merchant was taken Pro confesso and ordered to bring the money instantly into the Court whereas he had yet six moneths for the payment the interest whereof was 40 ll whereby the Prouerbe tooke place Fallere fallentem non est fraus Here the Law did preuaile against Custome but in another like matter of attachment Custome hath preuailed against the Law One being indebted vnto another the summe of one hundreth pounds payable at a certaine time it came to passe that the Creditor went ouer beyond the Seas before the money was due the cautelous Debtor vpon vntrue surmise to defraud the Creditor made attachment of this money in his owne hands by the Custome of London and put in sureties to bee answerable for it for one yeare and a day according to the manner and order of the Court in which time the said Creditor was to disreason the said pretended debt but the Creditor being beyond the Seas and ignorant of these proceedings came ouer after the expiration of the yeare and a day and the Debtor had judgement vpon the said attachment and execution awarded vnto him in his owne hands The Creditor being now come ouer demanded his money the other denied to owe him any in briefe the Bill was put in suit at the Common Law the Debtor did plead the said judgement and recouerie in London and by that practise and fraudulent meanes defeated his Creditor and being done by Law it is taken to be no cousenage to be punished by the Starre-chamber or other Courts onely the partie is A.K. Touching Citizens or Merchants arrests beyond the Seas there is a Custome that no Officer may arrest after Sun set No arrest to be alter Sun set such therefore as goe abroad but at those times are said to Fly with the Owle by a common Prouerbe and it is hoped by the said Custome that the Debtor may by hauing accesse at some time vnto his Creditor compound with him and preserue the good opinion and credit wherein hee liueth and thereby not onely haue meanes to recouer himselfe but also be
King Philip de Valois in the yere 1328 the French crown of the flowerdeluce as good in weight and finenesse as the French crowne of the Sunne now was then worth but twentie soulz tournois commonly accounted to be two shillings sterling In those daies saieth he the French elle or yard of Veluet was worth foure liuers which is foure crownes or eight shillings sterling the said elle of Veluet doth now cost ten liuers or twentie shillings and the French crowne which was then valued at two shillings is now valued at fiftie soulz or fiue shillings so that foure crownes do make the said twentie shillings yet the said French crownes doe not containe more gold in weight or finenesse than before and consequently the veluet is not now deerer than it was then The gentleman that hath now fiue hundreth liuers by the yere to spend hath no more than he that had one hundreth liuers to spend in those daies and in like manner he proceedeth for Corne Wine and other commodities and thereupon concluded That the dearth of all things is but imaginarie and a vaine opinion to conceiue that things should be deerer now than in those daies The second Paradox THere is much to be lost vpon a Crowne or any other money although the same be giuen in paiment at the price it was receiued This saieth Monsieur Malestroit is an old and common error rooted in the iudgement of most men that are far from the marke and without their reckoning as he will manifest in the former termes In the aforesaid time of King Philip de Valois the French crowne aforesaid was worth but twentie soulz which is now currant for fiftie soulz The gentleman that had fiftie soulz rent or income did receiue for it two crownes and ahalfe or so much in siluer accordingly for which two crownes and a halfe he had halfe a yard and halfe a quarter of veluet after the rate of foure liuers the yard which was the price of veluet then now for this fiftie soulz the gentleman doth receiue but one crowne or so much of siluer money and for that one crowne now he can buy but one quarter of a yard of veluet after the rate of ten liuers that veluet is now worth whereas before hee had halfe a yard and halfe a quarter although hee haue giuen the same in payment for fiftie Sols which is the price for which hee receiued the said Crowne and so proceedeth with other the like examples in the buying of commodities with siluer coyne or in the receiuing of rents or incomes adding further thereunto that if any man will obiect and say I care not what the crowne liuer or soulz is worth so as I hauing a hundreth liuers of rent paied mee and that I can pay out againe the said hundreth liuers This man saith hee must then make proofe that he can haue now as much ware for two soulz as he could haue had in times past for two soulz which were of fine siluer and now almost of copper and in doing so hee should make a third Paradox more strange than the former for hee should goe about to prooue euerie thing to bee become better cheape which cannot bee prooued The substance and intention of these two Paradoxes is saith hee to shew that the King and his subiects doe buy all things as deere as in times past for that they must giue as great a quantitie of gold and siluer as in times past but by the inhauncing of the price of the moneys of gold from whence of necessitie proceedeth the abating of the siluer moneys Inhauncing of gold abateth the siluer in regard of proportion betweene them the King doth not receiue in payment of his reuenues such a quantitie of gold and siluer as his predecessors In like manner Noblemen and Gentlemen that haue great reuenues and incombes doe not receiue such a quantitie of gold and siluer as in times past but are payed as the King is in copper in liew of gold and siluer For which copper according to the second Paradox they cannot haue so much wares as they might haue for the like quantitie of gold and siluer so that the losse which wee haue by the growing deere of all things commeth not by giuing more but by receiuing lesse quantitie of gold and siluer than before whereby wee see manifestly that the more wee doe inhaunce the price of money the more we lose Monsieur Bodine the famous and learned Politician The great French Politician tooke vpon him to make an answere vnto those two Paradoxes being of another opinion and setteth downe other causes of the dearth of things which are fiue in number namely 1 The principall and almost onely cause The aboundance of gold and siluer now extant in the Kingdome more than in times past 2 The Monopolies 3 The Want of things causeth by excessiue Trade and wast thereof 4 The Pleasure of Princes that aduance the price of things 5 The alteration of the Valuation of Moneys To proue the first case and principall he alleageth diuers examples Plutarch and Plinie doe witnesse Examples of great wealth that Paulus Aemilius after the conquest of Macedon against the Persians did bring such aboundance of gold and siluer to Rome that the people were freed of all Imposts and the price of lands aduanced vnto two third parts suddenly The Emperour Augustus brought such great treasure from Egypt that the price of vsurie did decrease and lands became much dearer and the like at Ierusalem by the comming of the Queene of Candace and in the West Indies by the Spaniards conquest there and heereunto hee maketh a comparison of the want of moneys in times past The French King Iohn in England c. for the paiment of the ransome of Princes taken prisoners in those dayes and the meanes of the increase of wealth by the discouerie of the West Indies the propagation of the people in France their trade for Turkie and Barbarie their Banke at Lyons and other accidents Concerning the second cause of Monopolies hee doth passe ouer the same as a matter not considerable and doth limit Monopolies onely to the combination of Merchants and Artificers in the setting of a price to commodities or their handie worke by augmenting their wages Touching the third cause of the dearth of things by the want or waste of them hee obserueth some especiall things that corne and wine are better cheape during the time of warre than peace because the Husbandman is driuen to sell and to make money of his wares and the Gentleman finding the same perishable when the Merchant dare not lade his ships doth abate the price of commodities and maketh the people to liue good cheape which according to the Prouerbe France can neuer be famished would alwaies continue The Fertilitie of France if by the meanes of the stranger their storehouses were not emptied Concerning the fourth cause of the pleasure of Princes imposing a price vpon commodities
Principall and if he do not pay then the Suretie is to pay it without any course of law vnlesse he be ordered by the Court of Merchants to performe the same because that thereby he may also the sooner recouer the same of the Principall for whom he did giue his promise It is also a custome amongst Merchants that if a Merchant be indebted vnto another and thereupon intreateth another merchant to desire the creditor to respit him some time for the paiment of it if then the said merchant the debtor do not pay accordingly at the time he shall be taken pro confesso and sentence shall be giuen by the Merchants Court for the paiment thereof onely vpon proofe made that he did will another to craue the said respite of time for the paiment The like is done by the Common law of England by triall of Iuries of 12 men vpon proofe made by euidence produced before them that the debtor did craue day of paiment so that they will thereupon deliuer their verdict and iudgement and execution may be of course had for the same But if the promise be not conditionall then is he an absolute Suretie and is to pay the same accordingly as merchants of credit alwaies haue done To become a suretie vnawares A merchant may also be come in the nature of a Suretie vnawares or vnknown vnto him as befell vnto a friend of mine not may yeres since at Frankford in Germanie who during the Mart or Faire went into a merchants Ware-house to conferre of some businesse with him where hee found another merchant of his acquaintance to cheapen some parcel of silke wares with the said other merchant to whom this man as it seemed was vnknowne whereupon the seller of the said silk wares tooke occasion to aske my friend whether he were a good man and of credit and he answered he was so the bargaine was made and goods were deliuered vnto the said merchant the buyer to the value of 460 ll for the which he made a bill obligatorie payable the next Faire following at which Faire the partie not appearing demand was made of my friend to make payment of the said 460 ll because the partie was absent and withall some doubt was made of his sufficiencie my friend had not so much as remembred that any such question was demanded of him but the partie did put him in mind of it by circumstances and would be paied of him he in defence did alleage it to be nudum pactum ex quo non oritur actio and so not bound to pay the same as hauing had no consideration for it The opinion of merchants was demaunded wherein there was great diuersitie so that the Ciuile Law was to determine the same and by the said Law according to the title de mandato consilij he was adiudge to pay the said 460 ll and to haue the debtors bill obligatorie made ouer vnto him A caueat for merchants c. whereof he could neuer recouer one pennie although he did pay the whole debt and dammages for the partie became insoluent This may be a good caueat for merchants and all men for if he had said He is taken or reputed to be a good man of credit or I take him to be so he had beene cleered by the law and the custome of merchants Considerable promises Some promises are considerable according to reason as if a man vpon a penaltie do promise another not to molest or trouble him if the other giue him cause of offence to breake the same he incurreth not the penaltie and a promise made to do a thing is alwaies vnderstood to be for the first time So to make a promise that a pawne shall not be alienated yet it is held by diuers that the same may be hipothecated vnto another so the pawne be preserued Againe on the contrarie if a ship-wright do promise to build a ship for a merchant and hee causeth the same to be done by another here the promise is broken by the Law albeit this question is not materiall for it is not like that the building of Ships can be done without contracts in writing and onely by bare promises And the like may bee said to the greatest part of all the questions wherewith the Bookes of Ciuilians are fraighted so that for Merchants vnderstanding the ancient ordinarie Customes obserued in the course of the said Essentiall Parts of Trafficke is plainely to bee declared and distinguished from litigious questions CHAP. XI Of the Reuolution of Buying and Selling of Commodities by the course of Trafficke EVen as the whole Commerce and Trafficke consisteth of our Land Commodities and some fishing on the Seas and of the Commodities of forraine Nations So from hence followeth An efficient Cause of a kind of Reuolution in buying and selling of Commodities because the commodities of one countrie growing rancke and aboundant are transported into other countries in whose steed needfull commodities of those kingdomes and countries and returned thither which is a neighbourly lending betweene kingdomes and countries For as is noted God caused Nature to distribute her benefits or his blessings to seuerall Climates of diuers things found in some places that are not in other places to make an interchangeable course of the said commodities by way of merchandizing This Reuolution of Trade Sundry means for buying and selling may be illustrated by the consideration of the seuerall meanes whereby the said buying and selling are effected 1 The first is buying with readie money For readie money which is commonly the best and with most aduantage for commodities are sold better cheape wherein the knowledge of the goodnesse and necessarie vse is requisite 2 There is also a buying and selling of Commodities For readie mony and paiable at times paiable at some limitted time or times of paiment or partly readie mony and partly at times and the difference of price heerein is commonly aboue tenne vpon the hundreth more or lesse as the rate of monyes at interest are in the places of Commerce where the said Commodities are sold or bought and according to the plentie of mony extant vnlesse the superaboundance of Commodities doe alter the same especially if the Commodities be perishable by Corruption Time and Accidents so that the condition qualitie or goodnesse of the commoditie is much to be respected which was the cause that when commodities did abound at the first and the wealth of man was described by cattle and the like perishable things all kind of metall as being durable was most esteemed and the purest mettall taken to be fittest to make monyes of as hereafter shall bee amply declared in our second Part. By Billes of Exchange 3 There is another buying and selling of commodities to bee payed by Billes of Exchanges that is to say The Buyer giueth a Bill of Exchange or many Billes to bee payed by exchange in another place as for example one buyeth fiue hundreth
for in the execution consisteth the life of all lawes and the perfecting of mens actions which aime at some certaine end For it hath beene well obserued by some that the actions of a wise man and a foole differ in this Differences betweene the actions of a wise man and a foole That the wise haue a regard to the end in what they vndertake and the foole without consideration permitteth the end to manifest in selfe whereof ignorant men iudge according to the euent although the enterprise were neuer so aduisedly taken in hand and as if the successe did not depend vpon the diuine power to be guided by his prouidence The determination of all causes and controuersies especially of Merchants affaires is done and executed as followeth 1 Concerning Sea-faring causes which are determined according to the sea-lawes alreadie written and in the premisses abridged Foure meaneâ— to end controuersies wee shall in this chapter briefely declare the manner of it 2 The second meane to end controuersies is by Arbitrators chosen and elected by both parties to end their differences with breuitie and expedition to auoid suits in law which vnto Merchants are inconuenient 3 The third meane is the authoritie of Prior and Consulls of Merchants for the Merchants Courts according to the priuiledges which princes haue granted vnto them for the aduancement of their trafficke and maintenance of their Customes whereof most Iudges are either ignorant or contented to determine matters accordingly 4 The fourth and last meane to determine questions and differences is by the ciuile or imperiall law or the common law of the kingdome or jurisdiction of the seuerall dominions of princes according to the fundamentall lawes of them wherein we are especially to obserue That the Law-Merchant is predominant and ouerruling for all nation do frame and direct their iudgement thereafter giuing place to the antiquitie of Merchants Customes which maketh properly their law now by me methodically described in this booke which alloweth to euerie man and nation his proper right and due and hureth no man Three precepts of all Lawes according to the three generall precepts of all lawes set downe by Caius and after him by Tribonianus namely Honeste viuere Alterum non laedere Ius suum cuique tribuere whereof the second trieth and ruleth the two other whereof more hereafter Touching the first meane to determine Sea-faring causes it shall not be needfull to speake much of the definition of an Admirall at the seas An Admirall called by the Romanes Magnus Dux Classis and Drungarius magnus or Admiratus from Amiras a word vsed by the Spaniard to See or Adelantado as going before the rest of ships also by the Italians L'amiraglio or Admiral in French because his calling is known to all But let vs obserue that for the readier obedience to the great Admiralls of the seas it is agreed by common consent of all nations that they should haue in regard of their power ouer the liues of men a soueraigne iurisdiction onely proper to themselues The Admiralls Court. in all Sea-faring causes and debates ciuile and criminall so that no other Iudge should meddle therewith and the Iudge of the court being his deputie iudicially to decide them by the Aduocats and other Assistants for the better and iust proceeding of the said court Also the Admirals clerk is veric necessarie and herein it hath been thought conuenient that all Proctors or Attorn'eys of that court should take their oath before they be heard Aduâ—â—ates and Proctors c. that they shall do nothing maliciously but as soone as they find their action to be vnrighteous in any part of the proces they are to tell it to their Clyent and if the Clyent will insist then to shew it to the Iudge The Proctors oath also that they shall not reueale their Clyents secrets to the aduersarie and lastly that they shall not propound delay nor be peremptorie against their consciences and the like oath is to be taken of other officers at their admission The causes to be determined in the Admiraltie Court do extend verie far and many are otherwise decreed or determined especially by the Merchants Courts Causes to be determined by the Admiralty and office of Assurances whereas heretofore the Iudges of the Admiraltie did minister justice vpon all complaints contracts offences pleas exchanges assurances debts accounts charterparties couenants and all other writings concerning lading and vnlading of ships fraights hires moneys lent vpon hazard of the Sea and all other seafaring businesses done on the Sea or beyond the Sea with the acknowledging of writs and appeales from other Iudges letters of reprizall or mart to arrest and put in execution to inquire within and without liberties by the oathes of twelue men vpon all offences and trespasses and namely First touching the reuealers of the King and Countrey their secrets ouer Sea especially in time of warre Against Pirats their assisters or abettors Outreaders or Receiuers Against fortefiers of the Kings enemies and harmers of friends Against the breakers of the Admirals arrests and attachments Against goods forbidden and merchandise not Customed and yet transported Against the resisters of the Admiralls Officers in executing his precepts Against Forestallers Regraters and dearthers of corne and victualls c. Finally against transporters of Traitors Rebells manifest transgressors and fugitiues from justice or casters of ballast sand or any other thing in harbours or channells extortioners by ships and boat-wrights for taking away the boigh from the anchor cutters of cables or towes false weights and measures by sea shedders of other mens blood on sea or in any port or lamed by misdemeanour Customers and Water-bailifes taking more custome or anchorage than they ought for absenting from musterings in time of warre for all transgressions committed by sea-men ferry-men water-men fishers pilots ship-wrights prest men containing the Admiralls authoritie and to amerce them for his owne benefit the goods of pirats felons capitall offendors their receiuers assisters attainted conuicted condemned and outlawed waife and stray goods wrecke on the seas and cast goods Deodando that is to say the thing whether boat or ship c. that caused the death of a man or whereby a man did perish Beacons to giue light on the seas shares lawfull prises or goods of the enemie or Lagon Floatson and Ietson before declared with the anchorages beaconages swine sturgeon and whales cast on shoare all fish of extraordinarie greatnes called Regall of all these the Admirall hath authoritie to deale correct and punish according to their deserts and the lawes prouided for the same by statutes enacted and all other lawes and meanes before declared The Clerke of the Admirall ought to be very skilfull and honest and is to haue diuers Registers for congees safe-conducts pasports sea-briefes without which no ship in time of war is to passe The Registers of the Clerke nor yet in far voyages in time of
appertaine by the first of Our Officers or Serieants that shall bee required whom Wee enioyne to performe the same accordingly to the intent that all those charges and extraordinarie expences which Merchants may bee put vnto in following their suits against their Factors and dealers before many Iudges might by these meanes be vtterly auoided Furthermore Wee haue permitted and doe giue authoritie to the said Prior and Consulls Halfe of the forfeitures to the Prior c. that all such penalties of moneys as by them shall be inflicted vpon men for contempts or any other offences shall be forfeited the one halfe to Vs the other halfe to the vse of the said Common Place or Bourse of Roan to supply the wants thereof allowing them likewise absolute libertie and power to chuse and constitute one Councellor A Councellor and one Atturney and one Atturney who shall by all lawfull means labour the benefit and aduancement of the said place and shall defend the same to direct their proces and causes as well before the said Prior and Consulls as before all other Iudges And to the end that the Merchants may assemble themselues as well to consult of their common affaires as to constitute the said Councellor and Atturney without being subiect to repaire to Vs or to Our Iudges for leaue when need shall require Therefore all such judgements as shall passe before the Prior and Consulls being sealed with their Seales and signed by a Register by them appointed be it by imprisonment sale disposing of goods or otherwise shall be held for reall and lawfull being past in manner aforesaid without any constraint to haue Our further commission or liking euen according as was permitted by Our most honourable Our Father the King vnto the Merchants of Our Citie of Lyons by his letters Patents giuen in the moneth of Februarie Appeale to the Parlemeâ—t in the yeare of Our Lord 1535 reseruing vnto Our said Court of Parliament at Our said Citie of Roan for a last conclusion and by appeale the jurisdiction and knowledge of the said discords and differences And to the end that all such appeales as shall proceed by reason of the iudgements and sentences that shall be giuen and declared by the said Prior and Consuls may be speedily and without delay ended in our said court Wee haue ordained and doe ordaine inioyne and commaund all Our louing and truâ—tie Presidents and Councellors holding Our said court of Parliament to declare to the said Merchants without delay one day in euerie weeke such as they shall thinke conuenient to heare determine and dispatch the said appellations by order of roll for that purpose ordained Iustice with all expedition And in regard of the processe by writing there shall be one other roll made a part to the end that the said appeales may be ended in the same day to auoide the prolonging of suits to the ruine and consuming of the suiter And to the end that the said place of meetings of the Merchants twice a day may be quiet and without disturbance Our pleasure is and Wee do straitly commaund that none of Our Serieants and Officers presume to enter into the same place No arrest to be made vpon the Burse c. not to make any arrest for any cause of any person whatsoeuer during the time of those two accustomed houres of meeting And if such arrest should bee made during the said houres Wee haue declared heretofore and doe declare at this present the same to bee void and insufficient charging all Our Iudges not to haue any regard thereunto And as Wee are informed that the trade of Assurances is of late greatly aduanced by the Merchants of the said citie of Roan a worke so honourable that it doth euen beautifie and greatly aduance the trade and commerce of the said citie Wee to the end those said pollicies of Assurances and all other writings thereunto belonging may receiue full vigour haue permitted and doe permit that all Merchants frequenting the said place both now and hereafter to come to assemble themselues at all times when it shall be needfull to chuse and nominate according to the most voices one Merchant amongst them such a one as they shall thinke meet being a man trustie and expert in the knowledge of the trade of Assurances who shall make and register the said pollicies A Register for Assurances whereunto the Assurors shall set their hands at all times hereafter in the said place and liberties of Roan when it shall please the Merchants whose office shall likewise be to draw forth accounts of such arrerages as shall happen being thereunto called receiuing for his paines and time spent about the businesse of the same Assurances according as it shall bee thought meete by the said Merchants and keepe a perfect and true Register of the same Assurances To the which Register and Copies thereof and all other Acts and Writings by him made concerning matter of Assurances and by him signed Wee will and ordaine that all manner of credit shall be thereunto giuen before all Iudges and others to whom it shall appertaine without that any other person or persons shall haue to do or meddle in the said busines of Assurances or any thing thereunto belonging vnlesse he be before chosen and admitted thereunto by the said Prior and Consuls and by the said Merchants as aforesaid And Wee doe commaund and giue in charge to all persons holding Our courts of Parliament great Consells Admiralls Vice-Admiralls Stewards and their deputies and to all other Iudges and Officers whom it shall concerne that you do cause to be read proclaimed and registred this Our present Will Declaration Permission and Ordinance and the same to be obserued and kept by all them accordingly that the Merchants may vse and inioy the force and benefit thereof plainely and peaceably without any contradiction Moreouer Wee doe charge and commaund Our Atturney generall that he do with all dilligence cause all these things to be plainely and truely executed and that he do certifie vs of his diligence so done for such is Our pleasure for that of Our meere motion and power Wee will haue it done and that notwithstanding any ordinance customes statutes priuiledges commandements defenses or letters to the contrarie the which in this cause without doing preiudice to other causes Wee haue made void and doe make void And for that men shall haue occasion to vse this Our grant in diuers places Our pleasure is that credit shal be giuen to all such copies as shal be made by any Our louing and trustie Notaries and Serieants Secretaries or vnder in ample manner as to the originall and to this effect We do giue you full power authoritie and especiall charge and commission by these presents commaunding all Our Iustices Officers and subiects to obey you in this case And to the end this may remaine established for euer Our owne right in all other causes reserued Wee
haue hereunto caused Our seale to be put Giuen at Paris in the moneth of March and in the yeare of Our Lord 1556 and the tenth yeare of Our raigne signed by the King then in Councell and sealed with greene waxe with red and greene silke lace CHAP. XVII Of the Lawes of seuerall Countries whereby the Differences and Controuersies of Merchants are determined THe fourth and last meane to end the Differences and Controuersies happening betweene Merchants and others in the course of trafficke are the imperiall Lawes or the fundamentall Lawes of kingdomes and common-weales where the Merchants court of Prior and Consulls is not established whereof the Merchants ought not to beignorant so that in the description of them it is conuenient to make some declaration for the Merchants satisfaction appertaining to their busines and negotation All lawes are tending in substance to the vpholding of trueth maintaining of justice to defend the feeble from the mightie Finall end of the lawes for the suppressing of iniuries and to roote out the wicked from amongst the good prescribing how to liue honestly to hurt no man wilfully and to render euerie man his due carefully furthering what is right and prohibiting what is wrong summarily to be vnderstood according to the saying of our sauiour Christ. What you will haue men to do vnto you do the same vnto them Mat. 7.21 Luke 6.31 Which Alexander Seuerus the Emperor did expresse thus That which you will not haue done vnto thee do not vnto others And to this purpose let vs note three sorts of lawes namely The law of Nature whose vertue is alone Law of Nature and the same euery way in all or rather a verie notice of Gods law ingraffed in the mind of man The law of Nations which consisteth of customes manners Law of Nations and prescriptions being of like condition to all people as we haue before declared The Ciuile law which is an abridgement Ciuile Law derogating many illicentious customes which grew by peruersnesse and corruptnesse of nature and is termed Peculiar vsed by one kind of people called the the Imperiall Law Out of these was the common-law of England made whereof we are now first to intreate and therein to be somewhat prolixe for the better vnderstanding of Merchants the rather because the lawes do binde all men to Knowledge Obedience The law bindeth all men to knowledge and obedience and Punishment for indeed no man may breake them no man may be ignorant of them and lastly no man may iudge of them but according to them and therefore it is said that Iudex is taken à iudicio non iudicium à Iudice and more especially because this booke as you may find is more exactly calculated as the Prognosticators say for the Meridian of England howbeit it may serue for all other countries and places of trafficke and trade Of the Common-Lawes of the realme of England THe Common-Law of England is taken three manner of waies viz. 1 As the Lawes of the realme disseuered from all other Lawes The treatise of Doctor and Student which is the cause of the often arguing in the Lawes what matters ought of right to be determined by the Common-law or what by the Admiraltie court or by the Spirituall court 2 The Common-law is taken as the Kings court of Kings Bench or Common pleas 3 By the common-law is vnderstood such things as were law before any statute made in that point that is in question whereby that point was holden for law by the generall and particular customes and maximes of the realme or by the law of God and the law of reason whereunto the kings of England at their coronation do take a solemne oath to obserue the same and all which the inhabitants of England successiuely euer obserued Fiue nations in England namely Brittaines Romans and then Brittaines againe and then Saxons Danes and Normans Commendation of the common law Now whereas the Law-Merchant requireth breuitie and expedition all men of iudgement will confesse that hauing seene many deuises edicts and ordinances how to abridge processe and to find how long suits in law might be made shorter they neuer perceiued found nor read as yet so iust and so well deuised a meane found out as this by any man in Europe albeit that the shortnesse thereof is such that if a man haue many peremptorie exceptions Peremptorinesse of the common-law which can make the state or issue of his cause he shall be compelled to chose one exception whereupon to found his issue which chosen if he faile by the verdict of twelue men he loseth his action and cause and the rest can serue him for nothing Antiquitie of the common-law Great is the antiquitie of the common-law of England and the triall of Iuries by twelue men for we find the same to be from the time that the West Saxons had the rule and domination ouer the countries of Hamshire Wilreshire Dorsetshire Somersetshire and part of Glocestershire and also the same law was vsed amongst the Saxons which ruled Marshland and Medland that is to say the countries of Lincolne Northhampton Rutland Huntington Bedford Oxford Buckingham Cheshire Darbie Notingham and part of the shires of Glocester Warwicke Hereford and Shropshire at such time when the land was diuided into seuen kingdomes all of them being at that time inhabited with diuers nations namely Picts Scots Danes Normans Vandals and Germanes all which haue continued the proceedings of the law vntill the time of William duke of Normandie who conquered the same This William the Conqueror had the quiet possession of this land and caused amongst other lawes the Dane lawes to be collected which ruled in Deuonshire and Cornewall and a discreet view to be taken of sundrie lawes whereunto he did adde some of his Norman lawes to gouerne the people of the land now called England in so much that concerning the antiquitie of the laws and customes aforesaid they were long before vsed by the Saxons first gouernment Ann◠1198 ante Christum nay by the Brittaines themselues which was one thousand one hundred ninetie and eight yeares before the birth of our sauiour Christ being now in continuance aboue two thousand and eight hundred yeares for king Alfred caused the lawes of Marcia to be translated out of the Brittaine into the Saxon tongue and after that we find that king Lucius and king Alfred caused the continuance thereof The said Common Lawes are properly to bee taken to consist of the ancient Maximes of the said Lawes of the statute Lawes Booke Cases which are yearely obseruations vpon manners and may be called Responsa Prudentum comprehending therin the Municipall Lawes Municipall Law as gauelkind c. which is proper to all Kingdomes and Gouernments as an exception to the fundamentall Lawes thereof wherein many singular arguments drawne from Diuinitie and Humanitie are effectuall though there be no bookes for it For the